Torts and Personal Injury

CHAPTER

Torts and Personal Injury

INFORMATION IN THIS CHAPTER:

• •  Intentional torts

• •  Negligence

• •  Products liability

• • Automotive safety

INTRODUCTION

This chapter addresses the different ways in which augmented reality experiences could contribute to, or help avoid, individuals becoming physically injured. When injuries happen, civil lawsuits, known as “torts,” often follow. Although “some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms.”1

Torts are generally subdivided into three general categories, according to the mental state of the person committing them. “Intentional” torts are exactly what they sound like: unlawful acts done on purpose and designed to injure another person. There are also “strict liability” torts, which are imposed upon those who commit them regardless of the defendant’s mental state or even awareness that they were doing something unlawful. Copyright infringement, for example, is a strict liability tort; it isn’t necessary to prove that the infringer intended to copy the copyrighted work.

The most common, however, are torts of negligence - in which a defendant is held liable for an injury even though they did not intend to cause it. This type of liability is imposed when, in the eyes of the law, the defendant should have both foreseen the risk of injury and done something to prevent it. These sorts of torts take various forms, including slip-and-fall incidents, automobile crashes, and product liability. This chapter will primarily focus on these types of claims. The unique manner in which the medium of augmented reality blends digital and physical data together is likely to lead to all manner of unintended - yet logically foreseeable - accidental injuries of each variety.

'Cornell University Law School, Legal Information Institute, Tort, available at http://www.law.cornell. edu/wex/tort (last visited August 29, 2014).

Augmented Reality Law, Privacy, and Ethics

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Copyright © 2015 Elsevier Inc. All rights reserved.

INTENTIONAL TORTS

Before diving in to the many ways in which AR might accidentally lead to injury, it is worth considering whether it could be done on purpose.

ASSAULT

In common speech, the word “assault” is almost never heard apart from the term “battery.” We use them together in a phrase to describe a physical attack on a person. Because AR deals with the non-corporeal, it may seem strange to suggest that one could use digital imagery to commit an assault.

Between the two terms, however, only “battery” actually describes a physical touching. “Assault” is an act intended to, and which directly or indirectly does, cause a person to reasonably apprehend an imminent harmful or offensive contact. In other words, it is the act of causing someone to fear they are about to be hurt. Raising my fist at someone is an assault; actually punching them is a battery.

Understood in this way, we can begin to see how an illusion projected in AR could startle someone into believing they are about to be harmed. For this theory to work, however, the context would have to be just right. That is because the victim’s fear of imminent contact must be a “reasonable” one. “Reasonable” is a legal term of art indicating an objective, not simply subjective, standard. A silly, impaired, or inattentive person might fear an 8-bit Minecraft character that appears to be jumping out of a screen, but a reasonable person would not.

In order to create a reasonable fear of contact, then, the illusion would have to be both believable and unexpected. The graphical resolution must be sufficiently high that the image could pass, at least for a moment, as for being physically tangible. That is exactly the degree of realism that most creators of AR content strive for, so it is reasonable to expect a fair amount of such content to be available, hardware allowing. It must also be unexpected because it would not be reasonable to be startled by something you already know is coming.

Both of these requirements could be met by an experience that is sufficiently immersive. And unlike other forms of digital imagery, immersion is exactly the type of experience that AR is intended to create. By definition, a user immersed in an augmented experience subjectively loses touch with the distinction between the digital and physical aspects of his experience. It is in that state when the user could be expected to mistake a digital object coming at him as something capable of inflicting physical harm. But the immersion would need to be complete for a tort claim to have any credibility. It is difficult to foresee a circumstance in which a digital object seen only through a mobile phone or tablet could reasonably be mistaken for something real; more than likely, digital eyewear or a physical installation would be required.

“Intent” is another important element of this claim. Creators of augmented experiences should not take undue comfort in their lack of subjective intent to assault anyone. Tort law distinguishes between the intent to do an act from the intent to cause the resulting harm. Here is where foreseeability comes into play. If someone does something on purpose, and should have known that it would cause a harmful

FIGURE 7.1

Screenshot from a Ghost-in-the-Ad video.3

consequence, that person can be held liable for an intentional tort. In this context, therefore, if an experience designer programs a digital creature to jump out in front of a user, and should have known that this would cause a reasonable user to believe, even if just for a moment, that they were in danger of physical harm, the creator could be exposed to liability for the intentional tort of assault.

The types of applications most likely to include such content - for example, Halloween-themed haunted house augmentations or a ghost storybook1 - are also those in which the user is most likely to see it coming, or at least to have taken upon themselves the risk of being frightened. But humor being what it is, spooks and scares often crop up in the most unlikely places. Take, for example, the viral “fake ad” videos easily found on YouTube. These follow the common theme of peaceful music playing over a bucolic scene - often a car driving through rolling plains - for several seconds, which is suddenly and jarringly interrupted by a ghost or other scary figure jumping up in the foreground and shrieking. Many of these are so well-designed that it’s difficult not to at least jump, even when you know what’s coming (Fig. 7.1).

Similar humor has already emerged in the augmented medium. For example, in March 2014, one major retail brand secretly installed video augmentation in the transparent glass sidewall of a London bus stop. A popular online video shows fallen meteorites, alien attacks, sea monsters rising out of the sewers, and pouncing Bengal tigers - along with the predictably startled pedestrians waiting inside. Some of the scenes, like the laser-blasting robot walking down the street, are obviously

FIGURE 7.2

Screenshot from the augmented bus shelter.

fantastical,2 but others are not so easy to discern. According to a report in the London Mirror, “With the regular street appearing ‘as normal’ through the glass passersby have no reason to suspect a Kraken emerging from the sewers isn’t real. The brilliant stunt seemed to fool some, with many of the reactions downright hilarious.”3 Indeed, some pedestrians are shown literally jumping out of their seats and running from the apparent danger (Fig. 7.2).

Moreover, ads designed to surprise pedestrians have already led to physical injury and legal claims. In 2013, a woman using a staircase in New York City’s Grand Central Station fell and broke her ankle, allegedly because a spooky advertisement on the front-facing portions of the steps startled her. The poster was a close-up of “Dexter” star Michael C. Hall with cellophane covering his face. According to her lawsuit, Ajanaffy Njewadda was distraught as she descended the staircase looking for her husband, from whom she had gotten separated. When she turned around to go back up the stairs, the advertisement frightened her. She lost her balance and fell, resulting in a broken ankle and a concussion.4

With augmentation of physical installations becoming more common, similarly shocking AR ads are bound to start popping up. Whether any of them are so immersive or frightening as to cause a reasonable apprehension of immediate and unwanted physical contact remains to be seen. But it seems likely that the providers of at least some displays may need to defend themselves against such claims before long.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

This tort, known as “IIED” for short, is a relatively new development in tort law. Courts have historically been hesitant to recognize and compensate injuries that are purely emotional, rather than physical, in nature. Such harm is difficult to verify and quantify. Perhaps as a result, the standard one must meet to prevail on an IIED claim is intentionally demanding. A plaintiff must prove extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress. Hurt feelings or rudeness is not enough. A classic way that courts have traditionally explained the standard of proof is that the conduct must be such that it would cause a reasonable person to exclaim “Outrageous!” in response.

Despite the demanding level of proof required, it is actually easier to imagine scenarios in which creators of augmented experiences could be held liable for this tort than for the tort of assault. That is because society is already rife with individuals who intentionally bully, stalk, harass, abuse, and intimidate others in outrageous ways. AR would simply be another medium into which such people could extend their activity.

Take, for example, the phenomenon of student bullying. Whether or not one agrees with the prevailing wisdom that this activity is pandemic in contemporary society, it cannot be denied that many teens already use technology to harass and pick on others. There have been several high-profile examples in recent years of young people committing suicide after being targeted for ridicule through digital media. In 2010, a Rutgers University freshman jumped to his death after his roommate, Dharun Ravi, used Twitter and iChat to publish live video of the freshman kissing another man.5 In 2013, a 12-year-old Florida girl killed herself after being relentlessly harassed through online message boards and texts by as many as 15 girls.6

Such poor judgment is not limited to teens. In 2010, Michigan couple Scott and Jennifer Petkov reportedly used Facebook (among other means, such as driving in front of the girl’s house with a truck adorned in hateful messages) to taunt and harass a terminally ill child - even going so far as to post photoshopped pictures of the young girl’s face above crossbones, and of her late mother in the embrace of the Grim Reaper (Fig. 7.3). Certainly, if any conduct could provoke an involuntary outcry of “outrageous,” it would be that. Yet it is also uncomfortably reminiscent of other hate-motivated crimes that many individuals have historically inflicted on entire groups of people on account of their race, ethnicity, sexuality, and other attributes.

FIGURE 7.3

One of Jennifer Petkov’s hateful Facebook images.

Anyone with a motivation to intimidate and easy access to AR-creation tools is likely to be tempted to use the medium for hateful purposes. The same aspects of augmented expression that make it so attractive to artists, industrialists, and advertisers will also offer new opportunities for harassment. Today, for example, students often create fake social media profiles for people they wish to target. Tomorrow, they may create augmented content visible on the targeted person themselves - the digital equivalent of a “Kick Me” sign on their back. Tomorrow’s Jennifer Petkov might litter her neighbor’s lawn with augmented taunts, while a racist down the street may target an ethnic minority’s home with digital burning crosses. Augmented reality is simply a medium; what a society chooses to publish in that medium will be a reflection of the messages that society wishes to convey - just as we see in social media today.

One issue that today’s digital media providers largely do not need to concern themselves with is the risk of accidental injury due to the use of their publications. The unique blend of digital and physical that defines AR, however, brings such concerns to the forefront.

NEGLIGENCE

“Negligence is one of the greatest sources of litigation (along with contract and business disputes) in the United States.”7 Anyone who has picked up a telephone directory, driven past a bus stop, or watched daytime television understands this intuitively because there is never a shortage of personal injury attorneys soliciting new clients. But what exactly is negligence?

THE ELEMENTS OF A NEGLIGENCE CLAIM

Although each state has its own body of law on the subject, negligence is generally defined as “failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not.”8 In order to recover on a claim alleging injury caused by a defendant’s negligence, a plaintiff must typically prove:

• 1. The defendant owed plaintiff a duty of care, which usually means that the risk to plaintiff was reasonably foreseeable, and that defendant should have taken precautions to prevent the injury. There are also situations in which defendant owe a special duty to the plaintiff, whether by agreement or by operation of law under the circumstances.

• 2. The standard of care that the defendant owed. Generally, this will be the duty of acting as a reasonable person would act under the circumstances. This is an objective standard, but can sometimes be influenced by the circumstances of the case.

• 3. The defendant breached the standard of care. This requires proof of what the defendant did and why those actions failed to live up to the duty required of them. Under limited circumstances, circumstantial evidence can be used to prove what the defendant must have done, even though no direct evidence exists. This is known as the doctrine of res ipsa loquitur, which is Latin for “the thing speaks for itself.”

• 4. The defendant’s breach of their duty caused plaintiff’s injury. This is often one of the more difficult factors to prove, especially when plaintiff’s injuries were only an indirect result of defendant’s actions. The plaintiff must prove not only that defendant was the factual cause of the injury - in other words, that the injury would not have happened but for defendant’s actions - but also that defendant was the “proximate cause.” This is basically a legal policy judgment of whether there was a sufficient link between a “cause” and its indirect “effect” that it is fair to hold the defendant liable. Issues of proximate cause come into play when there are multiple steps that occur between what the defendant did and what happened to the plaintiff. At some point, the indirect consequences

of a defendant’s actions become so remote and unforeseeable that it would no longer be just to hold defendant accountable for the result.

• 5. The plaintiff suffered damages as a result of the negligence. Damages are not presumed, as they are by some other legal theories. Typical types of damages in negligence cases include pain and suffering, medical expenses, and lost income. The court will also consider what the plaintiff should have done to mitigate their own injuries.

With this understanding of what it takes to prove a negligence claim, how might augmented reality lead to negligence liability?

AUGMENTED REALITY GAMES AND PHYSICAL INJURY

I love games, especially the type that really engage your mind and force you to solve problems creatively. By all indications, I’m not alone. In 2013, the video game industry reportedly made $21 billion in the United States alone.9 In March 2014, as online game company King Digital Entertainment prepared to go public, its runaway hit Candy Crush claimed 408 million active monthly users.10 When Grand Theft Auto V - a game that cost $265 million to make - hit the market in September 2013, it reached $1 billion in sales in only three days.'11

So you can bet that games will be among the first commercially successful augmented reality applications. Indeed, it has been persuasively argued12 that it will be games that take AR into the mainstream. In 2010, Australian media professional Gary Hayes wrote: “Expect lots and lots of horror, crime and murder mystery .. locative AR games popping up in the next few years and months given the ease in which those genre can be adapted to ‘location’ points around any urban area and hunt for clue or task based play.”13 As one example, he pointed to “Operation SC Revelation,” a transmedia campaign supporting the launch of Ubsoft’s Splinter Cell video game. The promoters “set up an extra level in augmented reality ... a real-life foxhunt played by walking through Amsterdam whilst looking through a smartphone that used the Layar-AR-browser. Layar showed what was around the players by displaying augmented reality seen through the camera of their smartphone.”14 A more recent example is the massively multiplayer game Ingress from Niantic Labs, which is easily the most popular entry in the genre to date. Thousands of players across the world, divided into two factions, compete to either protect or destroy virtual “portals” whose locations are tied to an actual, physical landmark. In order to manipulate a virtual object, a player must be in close physical proximity to its assigned location.

But AR games carry at least one risk that the console-based games never did: physical injury.

The risks inherent in location-based AR games

Many digital games that incorporate some degree of AR pose no discernible risk of physical injury, because they do not require anything more from players than any other mobile game does. These include the dozens of “AR” games that are little more than a regular game superimposed on a live video feed. It also includes games that require the player to remain stationary, such as Total Immersion’s 2011 release “SkinVaders,” which used magic mirror-type technology to superimpose invading aliens onto the user’s face.

Rather, the risk of injury comes with games that involve movement and genuine interaction with the player’s physical environment. In these cases, injured players of AR games will argue that, by directing players to travel to various locations and perform certain tasks, the game designers undertook a duty to ensure that those activities would not place the players at undue risk of injury. These lawsuits will involve ascertaining just what duty the game designers owed to their players, whether they breached that duty, and whether the breach was the proximate cause of the player’s injuries.

To date, one of the most vivid illustrations of the risks inherent in this type of game is the 2011 trailer published online for The Witness, an AR game that billed itself as “The First Movie in the Outernet” (Fig. 7.4). As described by the trailer, The Witness is much more like a mobile version of an online role-playing / mystery game than like anything one would currently think of as a “movie.” Using AR-equipped video phones, players roam the physical world “collecting data” and “communicating with other players.” Like a walking, talking version of a Choose Your Own Adventure book, the game directs players to different locations based on the choices

FIGURE 7.4 they make - eventually solving the mystery, or else meeting one of a variety of alternate endings to the story.

But unlike someone playing a similar detective game on a board, console, or (nonlocation-based) mobile device, a player of The Witness faces potential dangers in the real world as well. The trailer shows players in seedy hotels and bars, a disheveled office, climbing stairs in a parking garage during winter, and scurrying through an abandoned warehouse - complete with barking guard dogs - in order to collect the clues necessary to “stay in the game.”

In all likelihood, these scenes were probably amped up for dramatic effect. And there may have been safety measures in place that the trailer doesn’t mention. As depicted, however, they just scream with the potential for personal injury. One scene shows a player scanning a room with his phone, looking for clues. What if he gets distracted and trips over something, or something falls on him while he’s rooting around under a desk? Will the guard dogs always be there, and if so, will there be a staff member there 24/7 to make sure they don’t bite anyone? Suppose a player gets mugged in one of these abandoned buildings, or falls on poorly-maintained stairs? The possible scenarios for injury multiply with every new setting.

On September 13, 2012, Dreamworks’ Director of Global Interactive Chris Hew-ish gave a wide-ranging keynote address on Hollywood’s use of augmented reality at Vox: the 4D Summit, an event for creatives that Daqri hosted in Long Beach, California. One of the examples he cited was The Witness, and he played the trailer for the audience.

During the talk, Chris shared these thoughts on whether games like The Witness posed a risk of injury, and whether anyone in Hollywood was yet thinking about these issues:

I think we’re still really early on, and what you’re seeing here are great examples of pioneers, who tend to be outside of the normal boundaries, willing to take risks and not as worried about the consequences. Which is great, and that’s how you push the medium.

I think in order for big Hollywood companies to get onboard, they’re going to want to do something that has zero liability potential. And that’s where I think you’ll see these sorts of things become prevalent in established location-based entertainment. So, if you’re able to go to Disneyland and participate in the equivalent of The Witness in a safe, controlled environment, now you’re talking. Now you’ve avoided a lot of those risks.

There’s also the fact of a low barrier to entry. People are already used to going to Disneyland, so you don’t have to convince them to go somewhere that’s strange or new. You’re just bringing them to somewhere they’re familiar with and building on that experience.

In other words, even if they’ve never had to worry about their viewers hurting themselves before, major content producers creating their own, self-administered immersive experiences are both smart and risk-averse. They are not likely to send users off to remote locations outside the company’s control, for a host of safety- and business-related reasons. On the other end of the spectrum, start-up entertainment companies with shoestring budgets may not ever worry about (or even consider) the risk of getting sued if players looking for digital data physically hurt themselves in the process.

But as Chris suggested, there will still be plenty of creators who take risks in order to push the medium forward. Those who do so and who have enough assets to create a very attractive location-based AR experience will create a tempting litigation target for would-be plaintiffs. Those entrepreneurs should not be afraid to continue innovating, but should get informed legal advice before encouraging their users to take any sort of risks in the real world.

Other games already in existence demonstrate the inevitable physical risks that come from requiring players to move from place to place. I have interviewed the players of some of these games. One admitted to slipping on ice and twisting their ankle; the other got themselves a bit scuffed up while searching through bushes for the exact coordinates of a virtual object. Additional potential avenues for mishaps were spotted and avoided. For example, they told me about one digital object that was originally located in the driveway for a hospital emergency room. This was reported to the game’s designers, who moved it out of the way. Lessons like these should help future game designers avoid similar issues.

I have also wondered whether AR games will put players in dangerous situations that make them more vulnerable to criminal activity. It turns out that there is already a healthy debate on this very point among my new friends’ community of players. Some say yes, and are wary of going certain places at certain times. Others argue that encouraging presumably law-abiding gamers to visit areas they don’t normally frequent will have a “neighborhood watch” effect, essentially deterring crime in those areas. Time will tell on that point, and both arguments are likely to find supporting examples as time goes on.

On the plus side, though; AR games are already liberating players from their couches and getting them into the real world. My new friends report that they already get more exercise and have visited more local landmarks than they otherwise would have.

When might game designers be liable for physical injury?

AR game designers should consider the foreseeable ways in which players could injure themselves while playing the game, and take reasonable steps to minimize that risk. The most obvious way of satisfying this duty is to convey appropriate disclosures and warnings to users before they play. As of this writing, for example, the guidelines for Ingress players warn against trespassing onto private property, unwanted physical contact with others, unwanted recording of others, and insulting other players. They also include such blanket statements as “you are responsible for your own conduct and content while using the Products, and for any consequences thereof. You agree to use the Products only for purposes that are lawful, proper and in accordance with the Terms.”15

In the absence of such precautions and warnings, however, an AR company may bear some measure of risk whenever it directs users to travel to a new location. The nature of the gaming experience can amplify that risk. The Witness, for example, says that players will need to “overcome their fear,” as “the borders between reality and fiction dissolve completely.” All of which makes the game that much more engaging and enjoyable; suspension of disbelief and an immersive experience are what every good storyteller aims for. But when you’re walking around in the real world, you rely on those “borders between reality and fiction” to avoid hurting yourself.

We don’t need to wait for mainstream AR gaming to see how courts might apportion liability for game-related injuries. Consider the 2000 decision of the Washington Court of Appeals in Anderson v. American Restaurant Group.11 Plaintiff Anderson “suffered injuries when she slipped and fell while running across the bathroom floor at the Black Angus restaurant in Bellevue to retrieve a piece of toilet paper for a restaurant-sponsored scavenger hunt.” Even though a wet bathroom floor is the type of dangerous condition that one might expect to be obvious, the appeals court reversed the trial court’s judgment in favor of the restaurant. “[A] jury could conclude,” the court explained, “that Black Angus should have expected that patrons darting into the bathroom would not discover or realize the danger of a wet floor because they would be focused elsewhere and in a hurry.”

In a similar vein - but with much more severe consequences - is the case of Bob Lord. He was an internet entrepreneur and first-time player of “The Game,” a private, invitation-only, immersive role-playing game remarkably similar to the Michael Douglas movie of the same name. As summarized in a September 14, 2008 Seattle Times article, “The Game” was an annual “adventure scavenger hunt” in which adult players “would scuba dive, rock climb, sing karaoke with a drag queen and fire automatic weapons ... decode the Declaration of Independence inside a prison and befriend a white rat named Templeton, whose shivering little body carried a message.”16 17

The 2002 version of The Game also involved searching for particular GPS coordinates inside “the Argentena Mine complex, a warren of abandoned openings left over from a 1927 silver-mining operation.” Lord had gotten little sleep over the 28 hours before the time he entered the mines. Confused by the Game’s ambiguous directions, he entered the wrong shaft, and fell 30 feet head-first, crushing his vertebrae and becoming a C3 quadriplegic for the rest of his life. When Lord’s family discovered that the Game planners had been warned about mine’s dangers beforehand, Lord sued them, and eventually settled for $10.6 million.

More recent are the examples of Kim Flint and Chris Bucchere, two California bicyclists who were involved in fatal accidents in 2010 and 2012, respectively.18 Flint lost control while descending down a steep road and suffered fatal injuries. Bucchere struck Sutchi Hui, a 71-year-old pedestrian, killing him. Both riders were also active users of Strava, the mobile app that tracks riders’ speeds and elevations and allows them to share results with each other through social networks. Riders who achieve the top speed on any given segment re awarded the title of KOM or QOM (King, or Queen, of the Mountain). Flint’s family sued Strava for negligence, arguing that the company “breached their duty of care by: (1) failing to warn cyclists competing in KOM challenge that the road conditions were not suited for racing and that it was unreasonably dangerous given those conditions; (2) failing to take adequate measures to ensure the KOM challenges took place on safe courses; and (3) encouraging dangerous behavior.” A judge ultimately dismissed the lawsuit in 2013, finding that responsibility for safety lay with the riders themselves.19 Many of those following the case were not so convinced, however. The Flint family’s attorney explained the theory of their case this way:

“The social network is a secondary function of their true business, which is profiting on what they call segments. The goal of these segments is to obtain the fastest pace. If you want to not call it a cycling race and call it a segment, that’s fine,” she told VeloNews. “Our main point was that, look, Strava is behaving a lot like a race course organizer, bringing people together in some capacity. ... Why should Strava not be held to the same standards of any race organizer? They’re making money based on faster and faster times. Sounds like a race organizer, right? It’s a difficult case to make, but my overall sense of it is that something doesn’t smell right.”20

One has to wonder how different the facts would have had to be before the case came out differently.

The typical AR game of the near future will almost certainly not involve circumstances as dangerous as those in The Game or injuries as severe as Flint’s. But as the Anderson case demonstrates, even a condition as mundane and obvious as a wet bathroom floor can become a source of potential liability when game players are sent out into the physical world hunting for clues and competing against other players under short deadlines. AR game designers - including marketing stunts that require individuals to search for clues within a physical environment - must take these risks into account when creating their fictional experiences. Although it may present frustrations on a creative level, designers must take all due care not to sacrifice gamers’ physical safety for the sake of an immersive gaming experience.

The special case of underage users

Location-based augmented reality games are growing in popularity. This mainstream appeal has led to some chance encounters that have some players wondering whether they could get in hot water for making the wrong sort of teammates.

For example, when one of these games recently graduated from beta testing, droves of curious players flocked to try it out. But this led an anonymous local player to recently share with me the following thoughts:

One of the old timers ... was talking to a new player in the in-game team chat system ..., doing what we all often do for new players... offering to drop them gear to help them level up, and even going on an “AP run” which is the ... equivalent of a lioness chewing up a wildebeest a little so her cubs can learn to catch it.

Other players were trying to get his attention because they knew the new player in question was a 12 year old girl.

So yeah, some 30-something guy was unknowingly soliciting a rendezvous with a young minor. Honest mistake, but it opens up a number of questions.

You probably know better than me that I think all player interactive games have an EULA requiring them to be at least 13 years old. So while 13 year olds game against 30 year olds every day, forming clans, chatting on audio services like TeamSpeak, that has come to be accepted as okay as long as someone isn’t trying to do something illegal.

But now you have a game in physical places you must physically be at. On one hand it seems stupid and silly for it to be taboo for say a 16 year old with a couple twenty-somethings to walk around and hit some public portals. But people are really touchy, so. dammit I don’t know.

So, could adult players end up in trouble for using AR games to schedule a rendezvous with a minor? Should teens be wary of playing the games (to the extent that teens are wary about anything)?

The best answer to both questions is probably “only to the same extent they would in other, non-game circumstances.” But players of all ages should remain aware about these and other issues. Just because it’s a game doesn’t necessarily make it a good idea to meet up with strangers at night, for example. And if you’re an adult who happens to connect with a younger person, it’s probably smart to remain in public view at all times.

Designers of AR games should likewise take into account the anticipated age range of their users when establishing game protocols. In many cases, it may well be that no further action is necessary on the game company’s part other than to rely on the terms of use in the app stores that provide the game, or to include language in the game’s terms of use that forbid underage users (much like Facebook and other social media platforms currently do.) Depending on the circumstances of a particular game, however - especially if it is intentionally marketed to a younger audience - greater care may be required to avoid putting minors in harm’s way.

AUGMENTED DISTRACTIONS AND PHYSICAL INJURY

Just like the challenges of walking and chewing gum that came before it, today’s generation has encountered its share of incidents associated with walking and texting on a mobile device. Some of those have been spectacularly “epic fails,” to use the vernacular. In March 2012, for example, Michigan resident Bonnie Miller became an international poster child for the dangers of walking and texting when she walked straight off the end of a pier while checking her phone.21 In 2009, Alexa Longueira, a teenager from Staten Island, New York, fell into an open manhole while reading a text on her friend’s cellphone. According to a local news report, she fell 6 feet into four inches of raw sewage.22 YouTube also has its share of local news broadcasts containing footage of falling pedestrians.23

With this in mind, how will a new class of augmented wearable devices affect pedestrian safety? On one hand, transparent digital eyewear may actually be safer than today’s mobile devices, which require users to look down at them. Writing in the MIT Technology Review, cognitive science professor and designed Don Norman notes, “[u]nlike ‘immersive’ displays that capture your full attention, [Google] Glass is deliberately designed to be inconspicuous and non-distracting. The display is only in the upper right of the visual field, the goal being to avoid diverting the user’s attention and to provide relevant supplementary information only when needed.”24 Among the current crop of digital eyewear either on the market or promised soon, Glass is the least “immersive” of the group in this way, and partially for this reason.

“Even so,” Norman argues, “the risk of [any digital eyewear] distracting the user is significant.” 25 That is because the modern virtue of “multitasking” is a myth. “Numerous psychology experiments show that when two relatively complex tasks are done at the same time, performance deteriorates measurably.”26 A 2013 study from Carnegie Mellon, for example, noted that juggling email, texts, and social media while in the office notably decreased the efficiency of employees, even when they knew ahead of time that they would be interrupted.27 Moreover, the device manufacturer has only limited control over the user experience. Once third parties start providing software applications for the device, users will be able to customize their experience.

Used intentionally and effectively, however, wearable technology can actually enhance concentration and retention. Thad Starner is a founder and director of the Contextual Computing Group at Georgia Tech’s College of Computing, where he is a professor. He has been a wearable computing advocate for almost 25 years, and has given examples of how the devices improve his ability to remember details, even years later, by allowing him to take detailed notes in real time.28 Maintaining Starn-er’s level of focus, however, may be more difficult for the average user. “Without the right approach, the continual distraction of multiple tasks exerts a toll. It takes time to switch tasks, to get back what attention theorists call ‘situation awareness.’29 It will also “be difficult to resist the temptation of using powerful technology that guides us with useful side information, suggestions, and even commands,”30 with the result that it will become clear to those around us that our attention is divided.

These opposing factors create a paradox in which, according to Don Norman, “we will tread uneasily as we risk continual distraction, continual diversion of attention, and continual blank stares in hopes of achieving focused attention, continual enhancement, and better interaction, understanding, and retention.”31 As with anything else, how an individual uses wearable technology ultimately depends on that person. Norman, however, is not entirely persuaded even by that conclusion. Noting the power that even today’s instant-access, internet-enabled devices already have, he asserts that “[t]he providers of these technologies must share the burden of responsible design.”32

Plaintiffs’ attorneys representing those injured by distracted users will certainly agree. In an interview I conducted with a successful personal injury attorney, he admitted that he and others in his practice would look for any chance they could find to name the product manufacturer as a defendant in such a case. Their argument would be that the product itself was unreasonably designed, so as to cause an unacceptable risk of distraction and injury. In the terminology of negligence law, the argument would be that the manufacturers owed a duty to those affected by the wearers of the product to design the experience in a way that maximally reduced the likelihood of injury.

A simple online search confirms that personal injury lawyers across the country are virtually frothing at the mouth to be the first to sue someone over their use of digital eyewear. New York personal injury lawyer Eric Turkewitz declared in his well-read blog that:

“The chances of [digital eyewear] being a factor in people being maimed and killed is approximately 100%. .. Cocky [eyewear] users will walk into intersections and be hit by cars because they are getting a Facebook update on the latest cat video, or tweeting about the latest basketball buzzer beater. There won’t be sympathy for them, of course, as people chalk this up to the culling of the masses with Darwinian behavior”33

Similarly, a California law firm includes the article “[Digital] Glasses Could Cause Car Accidents” on its website.34 This advertising smacks of opportunism and is noticeably devoid of direct factual support for the claim made in its headline. These ads demonstrate the mindset of eager lawyers looking for the next big revenue stream, and not necessarily the extent of any actual liability that digital eyewear manufacturers will face. Whether lawsuits over such basic digital eyewear use - especially over the more obvious risks that are inherent to all digital devices - could ever succeed remains to be seen.

The potential for such assertions of liability, however, is exactly why many of today’s providers of augmented experiences include safety warnings with their products. For example, Qualcomm’s Vuforia software is one of the most popular visual recognition tools in the AR industry. As of May 2014, over 100,000 developers of augmented reality experiences were using Vuforia code.35 The terms of use governing Vuforia software instruct those developers to advise end users “of the hazards of using a camera based application while driving, walking, or otherwise by being distracted or disoriented from real world situations.”36 Similarly, when Google introduced Glass to its first sets of Glass Explorers, it warned them “not to use Glass while driving, biking, using sharp objects, or playing sports, and to use caution while walking and crossing streets. If they have any concern about the safety of using Glass, Google asks participants to stop using them and return them immediately.”37 These companies are forward-thinking enough to anticipate the risks discussed in this chapter and to take steps to avoid them. Other companies may not be as proactive.

DISRESPECTING THE PHYSICAL

Within the AR community, reference is sometimes made to Plato’s theory of forms, also known as Platonic Realism. This view postulates that all material objects are merely copies or imitations of the abstract concept, or form, of the shape, and that it is the forms that are ultimately “real.” AR’s ability to depict seemingly physical objects in evanescent digital space has resurrected and given a new immediacy to the debate over the relative significance of the physical or digital versions of an object, or whether perhaps they are equally important.

There is one sense, however, in which the physical will always be more significant. Physical forms are able to injure a person if they collide hard enough, and may be capable of supporting a person’s weight if stepped on. Neither of these things is true of digital images or of abstract concepts. That fact is elementary, but it is worth remembering as we proceed toward more widespread adoption of AR throughout society.

Some AR environments may be so well-rendered that it becomes difficult for users to distinguish physical from digital. Making the wrong guess about whether an object is one or the other may lead to injury. Moreover, the very fact of being repeatedly presented with that ambiguity may eventually prove to have significant psychological consequences for many.

Some AR professionals have raised concern about what effect widespread adoption of AR may eventually have on peoples’ subconscious appreciation of this very important distinction. Marianne Lindsell, an AR professional in the United Kingdom, raised this concern in an online conversation about a blog post of mine. She wrote: “This may have the potential to make users subconsciously learn to treat solid objects with less respect, with dangerous results.” If, psychologically, individuals train themselves to recognize and manipulate 3D digital imagery as if it were part of their physical environment, will they occasionally forget that the digital images aren’t actually there, or start treating physical objects (through inattention or misapprehension) as if they were insubstantial? Will they step on (and fall through) a digital floor panel, not realizing it’s only digital? Or run into a very physical wall, having grown accustomed to being surrounded by digital representations of walls?

This is a subject worthy of additional study. The results may inform what legal duty the creators of AR environments have to remind users of what is real and digital.

INJURY DUE TO INACCURACY

Anyone who has used an AR app on a mobile device has likely had their enthusiasm for the medium tempered a bit by the unsteadiness of the digital image. An article in an Australian publication captured that feeling in the following quote from architect Rana Abboud, who has studied the technology’s potential for the construction trades: “In some of the places I went to, the marketing around it was really glossy and amazing,” Abboud said. “But you actually tried the application and things didn’t quite work as planned. For instance, the Museum of Vancouver put out an app that we trialed and the tracking was not quite there, and things would disappear on you and then re-appear. It wasn’t stable enough.”38 39 40

Today’s technology still predominately relies on visual recognition of either a 2D marker or other distinct physical object to act as the image’s anchor in the real world. If the device’s camera loses sight of that target for even a split second, the image may disappear or lose its physical orientation, requiring the user to start over. Similarly, images that rely on GPS or other location awareness technology are often unsteady or jerky, jumping around in different directions as the device struggles to maintain pinpoint accuracy.

Both types of errors create a risk of injury for anyone who relies on the accuracy of the image’s location. If a court later determines that it was objectively reasonable for the injured party to have relied on the location data, the creator of the AR experience may be found liable for the injury. So, for example, if (as in the foregoing example from The Game) a user is following augmented walking directions that are marketed as being accurate, and those directions lead the user to fall in a hole, the provider of those directions may be held liable.

The injury resulting from locational inaccuracy might be economic as well. Ab-boud’s study highlighted a number of potential uses for AR in construction, such as visualizing future additions, discovering the position of hidden or obscured elements within a structure, and increasing worker efficiency by using mobile devices to overlay modeling information over their field of view onsite.39 “Incorrect, incomplete or out-ofdate data, [however], could have serious consequences if it showed the wrong location for a hidden pipe, wall stud or cable.”40 Expenses from such construction errors as a result of sensor or GPS inaccuracy could potentially rival the savings from using the technology in the first place. For that reason, although Abboud sees the technology’s use in construction as inevitable, it will not likely take hold for another 5-10 years.41

PRODUCTS LIABILITY

Another facet of tort law imposes liability on the manufacturers and distributors of commercial products that cause injury to users. These claims are typically grounded in the principles of negligence law, although the laws of various jurisdictions also create statutory and breach of warranty causes of action.

In order for liability to be imposed, the product must first be defective. Broadly speaking, there are three different types of defects: manufacturing, design, and mar-keting.42 Manufacturing defects result from errors in the creation of a particular unit of a product that cause it to not meet the quality standards the product is designed to meet. By contrast, a defectively designed product behaves as it is intended to, but that intended function is one that causes an unacceptable risk of harm.

Marketing defects generally refer to a manufacturer’s failure to warn users against hidden dangers. Unless the injury is one for which the law imposes strict liability, manufacturers can often avoid liability for many “defects” in design by clearly communicating the risk to the users.

What sort of arguments might be made by future plaintiffs alleging that an AR device or similar wearable technology caused them injury? The following discussion collects some of the more likely theories. Here again, it is worth repeating the disclaimer that none of this discussion should be read to suggest that any one particular product is defective at all. The fact that some products have reached market before others means that critics and the press have tended to focus most of their speculation on those early entrants. As with each chapter in this book, however, this is speculative discussion of the augmented reality industry as a whole.

EYE STRAIN

As of this writing, Google Glass has been available for more than a year. Thousands of users, myself included, use them on a regular basis without ill effects. Some users, however, have complained about eye strain.

Dr. Eli Peli, M.Sc., O.D. is the Moakley Scholar in Aging Eye Research at Schepens Eye Research Institute, Massachusetts Eye and Ear, and Professor of Ophthalmology at Harvard Medical School.43 He also consulted Google about the potential side-effects of using Glass. In May 2014, Dr. Peli started quite a buzz when he was quoted by BetaBeat as saying that prolonged use of the device would cause “a discomfort in the eye muscles,”44 because the act of looking up - where the Glass display sits - is the least-comfortable eye movement. “If you’re looking at the Glass for a minute,” said Dr. Peli, “you’re holding it there for sixty times longer than normal.”45

Not long after the BetaBeat article was published, Dr. Peli took to his Google+ account to clarify his position:

• •  First and foremost, I have researched both HMDs and Glass for years and have found no evidence of any health risks.

• •  Relative to the thousands of people using Glass, very few have reported that they’ve had an issue with eye discomfort or headaches.

• •  For most, the discomfort usually goes away after a day or two as they get used to the device.

• •  This adaptation phenomenon is similar to the initial discomfort some people have when wearing a new pair of prescription glasses, which eventually goes away.

• •  Like any piece of technology, from TVs to smart phones, it’s important that people find what’s comfortable for them. That’s why Explorers are encouraged to ease into Glass.

• •  Glass is designed for micro-interactions rather than long interactions like reading a book or watching a movie. The Glass team makes this clear in their Help Center.46

Google itself likewise responded to the BetaBeat article by noting:

“When anyone gets a new pair of glasses or starts wearing them for the first time there is always an adjustment period until people get used to them. For some it’s the same with Glass. We encourage Explorers to ease into Glass, just as they would a new pair of glasses. As we note in our Help Center, Glass is designed for micro-interactions, not for staring into the screen, watching Friday night movie marathons or reading ‘War and Peace.”47

That isn’t to say that others haven’t raised similar concerns. “Sina Fateh, an ophthalmologist who has filed at least 30 patents related to wearable displays, told Forbes that these types of devices can put unnecessary stress on the eyes.”48 Read together, however, these competing viewpoints establish an uncontroversial proposition: using digital eyewear more heavily than intended, especially if the user isn’t accustomed to it, could cause discomfort. This is true of existing eyewear, and will be true of the digital variety. To simply identify a means by which users may possibly misuse a product, however, falls far short of suggesting any defect in its design.

It also remains to be seen how the design of future devices compares to those available now. Telepathy, a Japanese company, worked for years on a device that sits above the eye like Glass does. Vuzix, on the other hand, sells similarly monocular eyewear that sits below, rather than above, the eye. Other manufacturers have touted stereoscopic eyewear in varying shapes, sizes, and fits. The industry standard is certainly far from being set.

BLUNT TRAUMA

Anytime a device sits close to one’s eye, the potential exists that it could impact the eye, causing injury. Of course, this is true of any eyewear, digital or otherwise. “Penetrating injuries are [already] widely reported with spectacle related eye trauma,” reported the British Journal of Opthalmology, and “the trend for small frames and frameless spectacles and may place patients at [increased] risk of serious ocular injury.”49

Therefore, merely making eyewear digital should not necessarily increase that risk. Dr. Farooq Ashraf, MD, FACS, medical director at Atlanta Vision Institute, has been quoted as saying “the risk of eye damage [from Glass] is minimal, especially when the wearer uses common sense and avoids situations where his or her eye could be impacted.”50 Here again, whether future devices accentuate this risk at all remains to be seen.

MOTION SICKNESS

As the capabilities of digital eyewear expand, they will offer users an increasing amount of visual information that they were not previously accustomed to receiving. What’s more, different devices will vary in how acutely they deliver this information. These variances could make a significant difference in how users react physically to what they see.

A 2011 article in the MIT Technology Review called “Could Augmented Reality Be Hazardous to Your Health?”51 focused on the research of Eric Sabelman, a functional neurosurgery bioengineer at Kaiser Permanente. According to Sabel-man, ubiquitous digital information floating around our field of view is bound to have a range of physiological effects on AR users. For some, it may be no more than a minor contributor to ADD; for others, it may contribute to “simulator sickness” - like watching The Blair Witch Project on a queasy stomach. “Mixing fixed elements into a dynamic real environment could ... lead to ‘simulator sickness’ in some users,” the MIT article reports. This “extra load to our visual processing” could simply be too much for some users to handle - especially if we’re moving. “[There is] no problem with a static image in the corner of your eye if you are at a desktop, but it will present conflicting information if you are walking or driving,” Sabelman said.

According to Sabelman’s research, the fact that digital data in our peripheral vision remains stationary while the world in front of us moves - kind of like the opposite of reading in the car - could be one factor causing these physical reactions. On the other hand, “the eye rapidly ‘accommodates’ to an image at a fixed location on the retina, rendering it invisible. Keeping interface elements visible could require jiggling them subtly, which might lead to further visual confusion as the user’s brain interprets such movement as movement of their real-world surroundings.”

We’ve already seen versions of this same effect in several other digital devices. For example, Apple’s iOS 7 operating system introduced parallax backgrounds and zoom animations throughout the user interface. Several users immediately reported that the devices gave them “motion sickness.” Dr. George Kikano, division chief of family medicine at UH Case Medical Center in Ohio, was quoted as saying “there’s some validity to this, for people who are susceptible. But it’s not the zoom animations that are responsible. It’s a new ‘parallax’ function that causes the background of the phone to subtly move back and forth, a feature that leads to an effect not unlike car sickness.”52

“It’s no different than being in an IMAX theater,” Kikano said. “The inner ear is responsible for balance, the eyes for vision. When things are out of sync you feel dizzy, nauseous. Some people get it, some people don’t, and some people get used to it.”53

Indeed, as more digital devices increasingly seek to mimic and overlay the real world, the effect is only likely to become more common. Some news outlets have gone so far as to proclaim that “[digitally induced motion sickness caused by iPhones, 3D films and computer games will become the biggest occupational illness of the 21st century.”54 Even those experts who have been skeptical of the physiological impact from small screen devices concede that more advanced displays will pose a risk of causing motion sickness. For example, Charles Oman, a former director at NASA who has studied motion sickness for over 15 years, was quoted as saying that, “if it were an immersive environment, like a headset or an IMAX screen, then I can believe it, but it’s a little harder to believe on the small screens.”55 The more recent introduction of the Oculus Rift virtual reality headset proves Oman’s point. Many of its users have reported that the slight lag between head movement and corresponding movement of the display has caused the motion sickness, and the device’s creators have conceded “that the problem is one which may never go away.”56

Of course, more complete immersion is the holy grail of augmented reality, so this concern will continue to loom on the horizon for the foreseeable future. Moreover, veterans of the industry know that precisely overlaying digital information onto physical objects - especially if those objects are moving or poorly lit - is exceptionally difficult to do at all, let alone to do perfectly. And it is the slight imperfections in almost-accurate renderings that cause so many to feel ill. Managing that side effect and making sure that users are properly forewarned, therefore, will remain a challenge for the industry.

SKIN IRRITATION

Many, if not most, wearable digital devices will come in contact with users’ skin. This necessarily introduces the potential of skin irritation. For example, in April 2014, news outlets reported that “thousands” of people had complained that the Fitbit Force digital bracelet had given them “a bad rash.”57 By March 2014, “the Consumer Product Safety Commission issued a recall and Fitbit stopped [selling] the Force altogether.”58 Ultimately, the company determined that 1.7% of its users experienced the reaction because of an allergic contact dermatitis, which the company initially blamed on an allergic reaction to nickel, but later said “could stem from the stainless steel, materials in the strap, or adhesives used in its assembly.”59 A class action lawsuit against the company was filed shortly thereafter.

Similarly, in July 2014, the medical journal Pediatrics released a study suggesting that one 11-year-old boy’s persistent rash turned out to be due to the frequent use of an iPad.60 The author concluded that the child was allergic to the nickel in the device’s exterior casing. The report prompted news coverage across the country and the world, which also suggested that such allergies are on the rise.61 62

While this is a very small sample set, these incidents are a sobering reminder of how little we truly understand about the consequences of prolonged contact between skin and hardware. It seems unlikely that the materials in the Fitbit Force were dramatically different than many other digital devices on the market. Other wearable technology manufacturers should learn a lesson from Fitbit’s cautionary example and invest in enough physiological research before marketing a product to ensure that the risk of similar incidents is acceptably low.

CANCER

To date, none of the digital eyewear devices on the market or announced as in production contain a cellular radio. Without this capability, the devices cannot make phone calls or connect to LTE networks on their own. Instead, every device launched so far connects to a mobile phone or tablet, either by wireless Bluetooth connection or by a physical cord, or to Wi-Fi. Certainly, a do-it-all device would be more efficient, so why the two-step process?

One reason that multiple commentators have pointed out is the ever-controversial potential link between radio frequency (RF) fields and brain cancer. To date, government regulators and scientific studies have generated mixed information over whether phone signals contribute to this disease. Officially, the World Health Organization classifies RF fields as “possibly carcinogenic to humans.”62 But another reason the data remains inconclusive is that regulators (especially the US Federal Communications Commission, or FCC) have already acted to reduce potential exposure.

Therefore, introducing a line of RF-capable devices designed to be worn on one’s head all day long could, as one article put it, “become the definitive test of whether or not cell phones cause cancer, and not in a good way.”63 It seems unlikely, however, that any device manufacturer will be eager to become the guinea pig whose device tests the theory. Such devices may also violate the regulations already issued by the FCC.

RETINAL PROJECTION

“The unprotected human eye is extremely sensitive to laser radiation and can be permanently damaged from direct or reflected beams.”64 Nevertheless, various proposed AR-related devices rely on laser projection to either recognize physical objects (which could potentially jeopardize others) or to relay digital information to the eye, which could injure the user. A 2012 post on Hack a Day, a do-it-yourself resource, reported on “a DIY retina projector,”65 which is a device that “focuses laser light though beam splitters and concave mirrors to create a raster display on the back of your eye.” What’s troubling about the project is that it emits a 200 milliwatt beam, which the site reports to be 100 times the intensity of commercial retina projectors and “more than enough to permanently damage your eye.”66

Of course, in one way or another, all digital displays must transmit light into the user’s eye, whether in the form or laser light or more conventional screens. Some designs even go so far as to “modify the eyeballs”67 themselves, such as Innovega’s iOptik system. This device relies on projectors inside eyeglass frames as well as specially designed contact lenses that focus the display. As of this writing, the last hurdle to broad commercial introduction of this system is approval of the contacts by the Food and Drug Administration.

Presumably, the FDA’s seal of approval should go a long way toward insulating Innovega from most hypothetical future claims of injury by iOptik users. Most other devices, however, are unlikely to receive that level of regulatory scrutiny before being introduced to the public. It would be wise, therefore, for manufacturers of digital eyewear devices to think carefully about all foreseeable risks associated with their devices, and to mitigate them through re-design or warnings, as appropriate.

AUTOMOTIVE

The line of propriety between wearing digital eyewear and driving a car has been debated for several years already, including on my blog since 2011. The mainstream public conversation on the issue, however, has been sparked by two more recent developments. The first was the introduction of Google Glass, including the media hype surrounding its Explorer program. Eager to ride this wave of public fascination, legislators in multiple jurisdictions proposed or introduced legislation to ban use of digital eyewear while driving.

The second event occurred on October 29, 2013, when San Diego, Californiabased Explorer and Glassware developer Cecilia Abadie received a traffic ticket for wearing her Glass while driving. The incident galvanized an amazing amount of media coverage, and strong opinions on both sides. On January 17, 2014, Abadie’s ticket was dismissed for lack of evidence that the display had actually been turned on while she was driving. By default, Glass remains off unless the user activates it with a tap or by tilting the head upwards. Abadie maintained that the device “was not on when she was driving, but was activated when she looked up at the officer during the stop.”68 Nevertheless, Abadie has also argued that wearing Glass was far less of a distraction than using a mobile phone while driving, and others have argued that digital eyewear and other AR devices can actually enhance driver safety. For its part, Google simply warns users to follow local laws and to use common sense:

“As you probably know, most states have passed laws limiting the use of mobile devices while driving any motor vehicle, and most states post those rules on their department of motor vehicles websites. Read up and follow the law! Above all, even when you’re following the law, don’t hurt yourself or others by failing to pay attention to the road. The same goes for bicycling: whether or not any laws limit your use of Glass, always be careful.”69

The following section will discuss the role of wearables and AR in driving.

AR MOBILE PHONE APPS AND DRIVING

The discussion earlier in this chapter about the potential for AR to distract from safe walking and other tasks applies equally to (and sometimes referenced) driving - particularly the Sabelman study cited in the 2011 MIT Technology Review article cited above. According to Sabelman, there is “no problem with a static image in the corner of your eye if you are at a desktop, but it will present conflicting information if you are walking or driving.”70 “I suppose we could learn to [walk or drive and use an AR system at the same time],” he said, but the author of the article concluded that “we might have to someday expand on those no texting while driving laws.”71

Those commonplace laws already recognize driver distraction as an epidemic. Simply talking on your cell phone while driving used to get people up in arms, and it is still restricted in some areas. But now those who text while driving are the new pariahs - and not without reason. Multiple mass transit disasters and notable deaths have been blamed on texting. Some studies show that texting while driving is more dangerous than driving drunk. Yet large percentages of drivers can’t help but continue to do it.

My home state of Michigan is one of several jurisdictions to ban the practice as a primary offense. The Detroit suburb of Troy went one step further to prohibit not only texting and calling, but also “any other activity that can distract a driver and affect their ability to safely operate the vehicle. Activities under this classification include, but are not limited to, eating, grooming, reading, writing, or any other activity that prevents someone from having control of the vehicle with at least one hand on the wheel.”72

How would AR devices measure up by these standards? For starters, it seems clear that using an AR app (or any other app, for that matter) on your smartphone while driving is the functional equivalent of texting. You may not be inputting information into the phone, but you’ve still got your eyes on it rather than the road. This is only slightly less true if you’re a driver peering through your smartphone to augment the view directly ahead of you. It may be the digital equivalent of looking at signs, a map, or a billboard while you drive, which can be distracting but not illegal (except maybe in Troy). But the app doesn’t know you’re driving, and can put an awful lot of information between you and what’s in front of you.

What about smartphone apps that are designed to be used while driving? Just because someone wants you to use it behind the wheel doesn’t make it a good idea. Take the “Augmented Driving” iPhone app,73 for example, which was first released in

FIGURE 7.5

The “Augmented Driving” app.

2010 (Fig. 7.5). It “detects your lane and other vehicles in front of you and provides useful information for your driving situation,” but only “in good lighting conditions during daytime for visible lane markings on highways and country roads and for detection of regular cars. For operation, a fix mount is required.” (A similar app called iOnRoad, introduced in 2013, makes similar claims.74) But suppose I encounter an “irregular” car on a partly cloudy day? Or I want to see a wider view than what’s visible through my front-mounted, 3.5” screen?

Maybe there’s more to this app than initially meets the eye. But relying on, and looking through, a mobile phone to detect other vehicles while driving seems like a dubious proposition.

DRIVING WITH DIGITAL EYEWEAR

There seems to be a growing interest in digital eyewear as a boon for driver safety. That certainly seems to be the prevailing conclusion among Glass Explorers, at least based on my own unscientific sampling of the Explorer Community message boards. In contrast to Cecelia Abadie’s experience, at least two other Explorers have reported that the police officers who pulled them over saw and disregarded their Glass devices.75 “I ... said I thought it was okay to drive with Glass because they were hands-free,” wrote one. “That seemed to fly with him so after he ran my ID he let me go without a ticket!” Of course, such results may be influenced by the fact that (as discussed in Chapter 8) many law enforcement departments have themselves begun to wear Glass in the field.

FIGURE 7.6

Glass makes directions available to the driver without looking away from the road.

Automakers themselves are getting in on the game. Tim Mahoney, global CMO for General Motors’ Chevrolet brand, confirmed that Google held a demonstration for the automaker.76 “I think it’s pretty cool,” Mahoney was quoted as saying. “The demo that I saw was pretty fascinating.... It’s going to come at some point.”77 Similarly, Mercedes-Benz is reportedly working to integrate both Glass and Siri, the voice-activated interface from Apple’s mobile devices, into the same system with its in-car infotainment systems.78 The idea would be to allow travel destinations stored in the user’s mobile or wearable device to automatically transfer to the in-car navigation systems when the driver enters the vehicle.

The same arguments raised in opposition to Cecilia Abadie’s example have been marshaled in response to these plans as well. Jurisdictions from the United Kingdom to West Virginia have moved to ban the use of digital eyewear while driving, concerned that they may be distracting, particularly for young drivers.

For its part, however, Google has expressed its intention to design Glass for safety. “It’s early days and we are thinking very carefully about how we design Glass because new technology always raises new issues,” Google has said. “Our Glass Explorer program, which reaches people from all walks of life, will ensure that our users become active participants in shaping the future of this technology.”79 And again, my own first-hand experience using Glass in the car shapes my perspective (Fig. 7.6). In Glass’ favor is the fact that the device displays navigation information where the driver need only glance up to see it, rather than down to a mobile device, in-dash display, or physical map. The device does not remain on or impede the user’s direct line of sight; instead, it chimes on when a turn is approaching, but otherwise remains off. Moreover, the interface is voice-driven. Directions are retrieved (and recited) by voice, rather than requiring the driver to type them into a keyboard. This too is a factor making the device less distracting than the alternatives.

It may be that regulators someday ban all digital interactions by a driver inside a car, including hands-free calling, map programs, and wearable technology. As long as navigational aids are allowed, however, it is difficult to see how digital eyewear is any more distracting than other, currently acceptable alternatives.

ACHIEVEMENTS TO DATE WITH AUGMENTED WINDSHIELDS AND DRIVER AIDS

One product has consistently been inserted between the driver and the road for the past century: the windshield. Automakers have experimented with projecting speedometer data and other information in heads-up displays on windshields for decades. And for at least the past several years, these same companies have been experimenting with truly interactive, augmented displays in this medium as well. A 2010 news report, for example, described a project by General Motors “to develop a working next-generation heads-up display that turns an ordinary windshield into an augmented reality information dashboard.”80 This approach used night vision, navigation sensors and cameras to gather data about the driver’s surroundings - such as the location of road boundaries and speed limit signs - and ultraviolet lasers to project corresponding images onto the windshield surface.

In 2011, a company called Autoglass published a concept video for a similar windshield display system it suggested could be ready by 2020. It is unclear, however, how much actual progress the company has actually made in the interim toward achieving this goal.

Hollywood has foreseen the usefulness of displaying truly interactive, augmented data in this medium. In the 2011 film Mission Impossible: Ghost Protocol, for example, Tom Cruise’s character drives a luxury sedan through a crowded intersection (Fig. 7.7). When pedestrians pass in front of the vehicle, heat signatures in the shape and location of their bodies flash onto the windshield.

Pioneer has actually demonstrated working prototypes of similar technology. In 2011, its Japanese arm announced the AVIC-VH09CS, ostensibly the world’s first in-car, AR navigation system,81 complete with “targeting” icons that encircle and

FIGURE 7.7

A scene from Mission Impossible: Ghost Protocol.

FIGURE 7.8

Pioneer’s augmented navigation display.

identify other vehicles without obstructing them, and direction arrows that appear to hover over the intersection in real time and in three dimensions (Fig. 7.8). The images are displayed in a dash-mounted video display, however, rather than over the driver’s actual point of view. In 2013, the company introduced Cyber Navi, an updated version of the same system.82 This iteration includes the same in-dash AR system, as well as a heads-up display that replaces the driver’s sunshade. Lasers project real-time navigational information onto the display so that they appear to the driver to be a few feet in the air in front of the vehicle.

A company named MVS-California, LLC has demonstrated a different, more minimalist approach to the augmented windshield. Called the Virtual Cable™, the device “presents a wayfinding line visible right through the windshield; presenting the information as a natural part of the landscape. [T]he line appears to be stretched over the road for several hundred yards in front of the car, above the street-level

FIGURE 7.9

Land Rover’s transparent bonnet system.83 84

activity of traffic.”84 Very similar to the red line followed by Daniel Suarez’s protagonist in Daemon and Freedom™, the system is also capable of displaying logos of businesses along the route and other trip-related information.

In 2014, Land Rover took augmented windshields in a unique direction. Rather than adding augmented digital information to the driver’s view of the road, its “Vision” concept employed a diminished reality technique to partially remove the vehicle’s front end, or “bonnet.” The result was to allow the driver to “see” the front wheels and the road underneath them, thus enhancing the driver’s knowledge of driving conditions - especially on steep or uneven terrain (Fig. 7.9).85

The same technology would also be capable of augmenting the driver’s situational awareness in all directions, as well as the car’s ambiance. “The clear glass roof of the [Land Rover] Concept has ‘mood screens’ that behave like the screensaver on a computer. It’s possible to change the roof from displaying a starry night to a sunny day.... The wing mirrors [also] have cameras that can project parts of the ground difficult to see onto the glass when parking.”86

Such news is enough to give hope that AR could soon improve our driving experience in a meaningful way soon. In the not-too-distant future, AR windshield systems like this might be sufficiently effective that they become required by law, just like seat belts and scores of other safety features are today, and as car-to-car wireless communication will be within the next few years.

DRIVING AMIDST UBIQUITOUS AUGMENTED REALITY

Assuming that autonomous vehicles have not fully displaced human-driven cars by the time AR technology is ubiquitous throughout society, there are a number of ways in which a mature digital infrastructure could enhance the driving experience.

Transparent buildings

A January 2010 concept video from New Scientist magazine87 demonstrates how a network of cameras synced with an AR windshield could allow drivers to literally see through walls, and thus spots potential dangers lurking around corners:

A system that works as smoothly as the one depicted in the video would certainly be a boon to driver safety, especially in urban settings with lots of blind corners. But it may be some time before the technology is that seamless. Latency and off-kilter images would make the service not only less useful, but also potentially distracting. It would also take quite an investment (of presumably public money) to get a network of cameras installed and to keep them properly aligned.

Traffic lights? Why not traffic walls?

Today’s traffic lights are dots of colored light that appear relatively tiny from a driver’s perspective, and are easily obscured by direct sunlight, rain, and obstructions. The mechanical systems required to create those “tiny” lights, however, are actually huge, and quite expensive. One local news source recently ran a story about the $450,000 price tag that came with a single new traffic light.88 “The reason a single traffic light costs so much,” the article explained, “is due to the cost of the hardware. Each traffic signal must be custom made. In addition, the cost of steel used to support the lights and the traffic signals themselves have gone up dramatically in recent years.”

When the signals are virtual, however, there are no mechanical or financial constraints on their size. Instead of looking up to find the little dot of light in the sky, a driver viewing an upcoming intersection through an AR windshield could just as easily see a giant red wall stretching across the entire road - translucent enough not to obscure physical objects behind it, but visible enough to make it impossible to miss.

Floating, virtual road signs

Why stop at traffic signals? All road signs could easily be augmented just as well, and made to float right at eye-level for easy viewing. A “right-hand turn only” sign, for example, suddenly becomes a curved arrow floating in space, rather than a roadside sign or words painted on the asphalt that are too easily obscured by other cars. The same could be done for every one of the messages currently displayed by metal rectangles on poles. As long as this is done in an efficient manner that aids the driver rather than cluttering her view, safety should noticeably improve.

A system of AR road signs could also have a wealth of collateral benefits beyond driver assistance. The most obvious is reducing government spending. Virtual road signs would cost a whole lot less than tangible ones - after the network needed to project them was in place. (And creating that infrastructure would be no mean feat; it would have to be widespread, reliable, and universally adopted before physical signs could be done away with, so this is a long-term vision.) A less tangible, but perhaps more impactful result would be the beautification of our roadways -especially if physical billboards were also replaced by virtual advertisements, a la Minority Report. Imagine if residents, pedestrians, passengers - everyone except the AR-equipped driver - could enjoy the scenic natural beauty alongside the road, unobstructed by a sea of signage.

Virtual speed displays

AR could be a boon to traffic cops as well. The U.S. Supreme Court has already upheld the secret installation by law enforcement of GPS beacons that track a vehicle’s movement. The smarter our cars get, the more likely it will be that they’ll have GPS devices of their own built in. Add AR to the mix, and it’s a short distance to a world in which traffic cops come equipped with sensors that read speed data broadcast by the vehicle and display the information so that the officer sees it directly above the vehicle itself. Of course, by that point, we may not need police officers to hand out the tickets at all; our speeds would be automatically monitored by a central system that churns out tickets automatically.

Virtual speed displays could also benefit drivers. It’s not always easy to immediately tell, for example, how quickly a car ahead of you is decelerating. Someone slamming on their brakes might trigger an accentuated, visual warning to other drivers behind the car, with different shades of color to indicate the degree of deceleration.

CONCLUSION

In sum, those who augment the physical world with digital imagery should always keep in mind the fact that physical objects can cause physical injury. Although it will be easy to become enamored of the various ways there will be to digitally supplement our daily experiences, designers of augmented reality experiences will have a responsibility to help their users to blend the digital and the physical in ways that minimize dangers.

CHAPTER

Criminal Law

INFORMATION IN THIS CHAPTER:

• •  Unintentional encounters with law enforcement

• •  Criminal collaborations and tools

• •  Enhancing and monitoring law enforcement

INTRODUCTION

For all of the promise that any new technology brings, there will always be an element of society that seeks to exploit it for unlawful purposes. That is an inevitable characteristic of human nature. This is not to say that we should fear or suppress augmented world technologies simply because they can and will be misused. To the contrary, the best way to protect society against the abuses of AR is to anticipate and understand them, so that we are better able to minimize and react to harmful developments. The worst thing we could do is hide our heads in the sand, pretending that this will be the first technology that criminal elements will not exploit, or that talking about misuse will somehow cause it to happen.

In practice, this means talking with the AR industry about criminal misapplications, so that we can design our safeguards to make the technology more difficult to abuse. It also means educating and equipping law enforcement to understand and deal with what they are likely to encounter. At the same time, however, it also means educating and equipping the citizenry to monitor police officers and hold them accountable to the public they serve.

UNINTENTIONAL RUN-INS WITH THE LAW THROUGH AR

In most respects, law enforcement tends to lag behind the leading edge of technological innovation. Like any publicly funded agency, the average police department gets computer upgrades only so often, and many of its officers are too busy doing other things to stay abreast of the latest technological developments and fads. As a result, officers will sometimes mistake innocent activity as potentially criminal.

LOCATION-BASED GAMES

As with the other mentions of the popular location-based AR game Ingress throughout this book, the following discussion is directed at location-based AR games in general,

Augmented Reality Law, Privacy, and Ethics

209

Copyright © 2015 Elsevier Inc. All rights reserved. not at Ingress specifically. It is only because Ingress has been the first game of its kind to gain such widespread adoption that the currently available examples of what can happen in connection with such games tend to involve that one.

In December 2012, a gamer who goes by the handle “Eheaubaut” on the social network Reddit was walking the streets of his city playing Ingress. The game requires players to locate and either destroy or repair virtual objects called “portals.” Almost all of these portals are located on public property, for reasons that have been discussed in previous chapters. In order to manipulate a portal, however, a player needs to be physically very near to it. This can lead players to engage in behavior that is not typical of the average pedestrian, especially because, depending on one’s experience level in the game, it can take some time to meaningfully affect the portal.

On this occasion, Eheaubaut was engaging a portal located over a police station. Although stopping to point his phone for a long period of time at the local police station gained him an advantage in the game, it was predictably suspicious to the officers inside. He wrote:

“I was out capturing some portals (I live in a medium sized city and only one other person is playing that I noticed, only one portal was taken.). And I walk by the police station and notice that the portal was still free! So I grabbed it. Then my phone locked up. I restart it, and load the game back up when a cop noticed me, shouted to me and arrested me. Apparently sitting near a police station for about 5 minutes with a GPS view of the surrounding area with little blue blips on the screen is a red flag. I was in a holding cell for nearly 3 hours explaining to them it’s just a game by google, ‘Strangest night ever.’89

A friend alerted me to this post, writing: “Your prognostications about augmented reality legal troubles have begun to come true.”

Not long after this incident, I was able to interview multiple, active Ingress players in my area. They retold their own stories, both personal and second-hand, of players being questioned by police. In one such incident, the player was playing while driving (which, I understand, the game discourages) and was pulled over after circling the same location at low speeds several times.

Similar incidents continue to occur. The Multi-State Information Sharing & Analysis Center - a division of the Center for Internet Security - published a notice to participating law enforcement agencies that Ingress “will likely increase reports of suspicious activity.”90 The publication explained the basis of the game and that the behavior and terminology associated with it (including “hacking” and “attacking”) “are part of the game and not real-world malicious activity.” Nevertheless, the notice also speculated that “[m]alicious actors unaffiliated with the game may attempt to cover up their malicious activity and/or surveillance effort by claiming they are playing the game.” It will be interesting to see if officers begin demanding to see - and are able to evaluate - players’ in-game credentials to judge whether they’re telling the truth.

In January 2014, a Kansas law enforcement lobbyist posted an article online purporting to describe “a number” of 911 calls in Park City, Kansas about “suspicious persons” who turned out to be playing Ingress. The article also cites one of my blog posts as an example of what “can go wrong” when Ingress players cross paths with police, and suggests that readers Google the phrase “ingress police calls” to find more. He wrote:

“The Park City Police Department has had a number of 911 suspicious character calls, and upon further investigation, the ‘suspect(s)’ were actually in the process of playing a new smart-phone ‘augmented-reality’game called ‘Ingress’..

This game is rapidly becoming more popular. Part of this game involves actually going to a physical location, and then ‘tagging/ marking/ closing/ taking over’ that location. With the success of this game, it is likely that similar games will be created in the future. ...

One recent confirmed experience with this game occurred at a church in Park City. A vehicle occupied by two people had been sitting in the parking lot for quite some time, but for no apparent reason. This occurred again the following day, and when church employees called 911 about ‘suspicious characters’, officers stopped the vehicle and found the occupants had been playing ‘Ingress’....

It is very likely that this game will generate even more 911 calls as it becomes more popular.”91

The article also noted the fact, however, that Niantic Labs had been proactive about warning players how to react to police inquiries. There are similar resources available online as well, including a page from the user-generated “Ingress Field Guide” describing the game to law enforcement officials.92 Similar advice abounds in online player forums and Reddit threads. Handling such encounters, it seems, will continue to be a fact of life that must be dealt with by players of location-based AR games.

VIRTUAL SHOOTING GAMES

The stakes only get higher when - unlike Ingress - the AR game in question is one where players pretend to shoot each other.

Several years ago now, an incident happened only a few miles from my home that foreshadowed the risks of such games. A group of teens were running through a neighborhood yard shooting at each other with Airsoft guns (which, if you don’t know, are like paintball except more realistic and with smaller, softer pellets). A passing police officer mistook the toy guns for real ones and fired his (real) weapon at one of the teens. Fortunately, he missed. The lesson: things that you pretend to do in public might be interpreted by others as real, and that can be especially dangerous when what you’re pretending to do is violent.

Nevertheless, there is good reason to think that AR companies will continue to develop games that involve virtual gunplay. First-person shooters have perennially been one of the most popular category of video games. Whatever the reasons, lots of people enjoy acting out violent scenarios within the (heretofore) safe boundaries of pretend environments. Geeks around the world are salivating in anticipation of the first truly immersive first-person shooter game in AR that takes that experience even further into the real world.93 Therefore, as one industry observer wrote in July 2014, “there’s been a huge push in the video games space towards a little something known as immersion.”94 The industry has sought to provide players with an immersive experience by introducing “a whole host of peripherals[, including] the ATOC Gaming Gun (the name stands for Advanced Tactical Oriented Controller). Designed for PC, Xbox 360, and PlayStation 3[,] it’ll allow people to experience their shooters in a way they never have before: by making them get up and move around.”95 Chapter 12 further discusses these games and the effect they have on those who play them.

EFFECT ON CRIMINAL RESPONSIBILITY

One of the first things that first-year law students learn about Criminal Law is the concept of mens rea, which is Latin for “guilty mind.” It is the measure of a person’s conscious intent. Unless a person has a sufficiently culpable state of mind when committing a certain action, that action will not be punished criminally.

So it will be interesting to see whether, and under what circumstances, a criminal defendant will ever be able to demonstrate that he did not have the mens rea necessary to commit a crime because he thought that he was acting the virtual, rather than physical, world. There is already precedent for making such an argument. In February 2013, according to a newswire report, a 35-year-old man in the eastern Russian town of Nizhnaya Monoma got drunk, armed himself with two knives, and began breaking into local homes. He stabbed five people, one fatally. His defense? “The suspect told investigators he had no intention of actually killing anyone. He said he thought he was committing a ‘virtual reality’ murder.”96

In truth, this particular defendant’s state of mind probably owed more to the alcohol he drank than to any video game he may have played, or thought he was playing. And there is, in fact, precedent for arguing that a severely drunk person cannot think coherently enough to form the state of mind necessary for some crimes.97 The incident is likely, however, to foreshadow more sophisticated legal arguments to be made in a time when digital interactions in AR are much more commonplace. In a setting in which digital content is intentionally designed to be perceived and interacted with as if it were physical, it will not be such a stretch to argue that the defendant thought he was interacting with a digital object or person. If the action results in an otherwise criminal act, the defendant may well be able to establish his lack of mens rea.

INTENTIONAL CRIMINAL ACTIVITY

AUGMENTED WEAPONS

In addition to weapon-oriented video games, another contributor to augmenting the firearm experience is the trickle-down effect of military research and development. It should be no surprise that the military and its contractors are one of the leading forces behind the development of AR. An oft-repeated truism of modern society is that war, pornography, and fast food are among the leading drivers of technological innovation. And AR has a lot to offer soldiers in the field. Distinguishing enemy units from allies, visualizing the insides of buildings, and headsup display of directions and targeting information are only a few of the more obvious applications.

Nor are these new ideas. Fighter pilots have used heads-up displays for decades, and virtually every combat-themed video game on the market demonstrates the utility of having these tools available.

In fact, the earliest example I can think of goes back to the mid-1980s animated series Robotech (Fig. 8.1). In one episode,98 the character Louie Nichols develops an eyewear-based controller for a video game used for training military pilots. After

FIGURE 8.1 social networks gain more traction. Displaying information about ourselves as we walk down the street would make it that much easier for someone to pick targets with particular attributes out of a crowd. Even militarized versions of video game-style self-monitoring data (such as vital signs, ammunition, wind conditions and the location of nearby threats) would be enough to make criminal shooters that much more dangerous in a public setting.

Of course, none of these are reasons to ban AR from the marketplace, as if such a thing were even possible. AR, like the internet before it, will be another ubiquitous medium for data transmission. Even tying AR into private weapons is not necessarily a categorically bad or good idea. But the first time that a rogue gunman uses his digital eyewear in connection with shooting civilians, you can bet that we’ll hear calls to ban the technology. So let’s give some thought ahead of time to how AR can and should be used in connections with firearms.

SURREPTITIOUS DATA COLLECTION AND HACKING

The allure of wearable recording devices is the promise of being able to forever memorialize cherished sights in our field of view. What one person wishes to see, however, is often something that another wishes to hide from view. So when on-the-fly recording capabilities increase, intrusion into ostensibly private spaces will as well, unless opposing countermeasures are taken.

We have already discussed the potential for eavesdropping - which in many jurisdictions is a criminal offense as well as a civil tort - and other forms of privacy invasion in Chapter 3. Here, it is interesting to note the type of criminally surreptitious recording to which wearable technology is already being put. For example, in June 2014, Wired magazine reported on a study performed by researchers at the University of Massachusetts Lowell.99 They tested the ability of various wearable cameras “to surreptitiously pick up four-digit PIN codes typed onto an iPad from almost 10 feet away - and from nearly 150 feet with a high-def camcorder.” By using custom visual recognition software, they were able to determine the numbers entered merely by tracking finger movements, even when the video could not directly see the screens onto which the numbers were entered. Criminals in the field could easily use similar methods to collect ATM and device passwords from unsuspecting users. At the same time, however, the researchers also suggested an easy solution to the problem: software that randomizes the positions of the numbers on the keypad used to enter the PINs.

Of course, for as long as recording devices have existed, they have also been used for gathering more prurient images. In 2008, for example, a stalker inserted a tiny video camera into the keyhole of ESPN reporter Erin Andrews’ hotel rooms in Tennessee, Wisconsin, and Ohio to capture images of her in the nude.100 Similar incidents involving less-high-profile victims are reported with disturbing frequency in local tanning salons, dressing rooms, showers, and similar locales across the country.

Here again, increasing the prevalence of recording devices - a necessary consequences of an increasingly augmented world - will increase the number of such Peeping Toms and the ways in which they can capture the images they seek. In June 2014, a Seattle woman made national headlines by reporting a suspicious drone flying outside her window.101 The next month, a New York man was arrested and charged with unlawful surveillance after allegedly flying his video-recording drone outside the 4th-floor examination rooms of a medical building.102

The complexity of this issue lies in the fact that such devices have multiple legitimate uses in addition to the perverse ones. For example, it later became apparent the owner of the Seattle drone was actually recording a panoramic image of the city skyline, and was not recording through the woman’s window at all. The New York defendant likewise claimed to be recording architecture and not indoor activity.

The exponentially expanding Internet of Things that will undergird the augmented world, however, offers a tempting collection of targets for hackers. At the 2013 Black Hat security conference, “two researchers from Trustwave Security Labs discussed vulnerabilities in a number of home-automation systems, such as door locks, alarm systems, garage doors, lights, surveillance cameras and other electronic appliances that could be used to carry out covert surveillance and gain entry to buildings.”103 As mentioned in Chapter 3, the Federal Trade Commission has already taken action against one such home monitoring company for doing too little to prevent such hacking.

As this network adds more devices that perform important and sensitive functions, the consequences of that hacking escalate. “In order to avoid lurid headlines about cars crashing, insulin overdoses and houses burning,” warned The Economist, “tech firms will surely have to embrace higher standards.”104 These are not hypothetical concerns. At the 2013 hacker convention DEF CON, security researchers Charlie Miller and Chris Valasek showed how they used a simple Mac laptop hack a Toyota Prius, deactivating the brakes regardless of what the driver attempts to do. They can likewise “turn off power steering, make the onboard GPS systems give wrong directions, change the numbers on the speedometer and even make the car change direction.”105 Likewise, “[t]he famed late hacker Barnaby Jack demonstrated how to hijack wireless insulin pumps to deliver potentially fatal doses from across a room, or hijack wireless pacemakers to stop hearts ... or deliver electric shocks (Fig. 8.2).”106

The unnerving plausibility of these scenarios has spawned fictional dramatizations of such malicious IOT hacks. The television drama “Homeland” featured a hacked pacemaker, while an artificially intelligent program uses similar methods to eliminate enemies and ensconce itself in computers around the world in Daniel Suarez’s AR-influenced techno-thrillers Daemon and Freedom™. As the world becomes more connected, criminal hackers will have more access points for causing more harm than they will know what to do with.

AR AS A DISCLOSURE OF “SOFT TARGETS”

Augmented reality has sometimes been referred to as a window into, or the visual “interface for[,] the Internet of Things.”107 It offers the same advantages for existing networks of other kinds as well. One of the most compelling and practical use cases for AR in both the consumer and industrial sectors will be visualizing electronic, mechanical, and organizational processes and activities that would not otherwise be apparent to the user. This could be as simple as the proverbial smart fridge that alerts its owner when food items are running low, to on-the-job visual prompts that instruct a technician on how to repair a piece of machinery or locate a particular piece of pipeline or equipment. In my neighborhood, utility companies regularly fly planes overhead to monitor the status of underground pipelines, which are marked by unsightly signs designed to be visible from the air. Similarly, homeowners are required to call 1-800-MISS-DIG before breaking ground for landscaping or construction; servicemen then come and use flags and spray paint to mark out the location of all underground pipes and wires. All of these precautions could - and someday are likely to - be rendered obsolete by an AR application that reliably displays the location of all underground structures in three dimensions.

Travelers are also likely to become more dependent on AR. In their book Augmented Reality: An Emerging Technologies Guide to AR, Gregory Kipper and Joseph Rampolla discuss various AR apps that track and visualize the identity and location

FIGURE 8.2

Barnaby Jack.108

of individual rail cars, buses, ships, planes, and more.109 This functionality is not limited to AR apps; FlightAware, for instance, is a popular app that tracks nearby flights in a two-dimensional display. But conveying vehicle information to travelers by means of AR can provide real value in locating public transit routes, stations, and vehicles.

As with most information, however, all of these insights could be used for nefarious purposes as well. For instance, a terrorist intent on attacking a particular vehicle (perhaps because of who is inside) or causing the maximum number of casualties would have a better chance of succeeding if he had access to a real-time, heads-up display of traffic information.

Policymakers have long fretted about the vulnerability of such “soft targets” as power grids and water purification plants (Fig. 8.3). For example, immediately after the onset of the 2003 blackout that left much of the Eastern and Midwestern United States without power for days, many of us affected by it initially assumed that it must have been the result of a terrorist attack. Attacks on such systems hit far more average citizens “where they live,” so to speak, than do the more common forms of terrorism, such as bombings or mass shootings. In November 2012, the National Academy of Sciences released the results of a study finding that a successful attack on the United States’ power grid could cost hundreds of billions of dollars and lead to thousands of deaths.110 In 1993, the parasite cryptosporidium infiltrated the water distribution system in Milwaukee, Wisconsin by unknown means. In all, more than 400,000 people were

FIGURE 8.3

A mock-up at DefCon 2014 of potentially hackable computers in a water treatment system.

sickened, and at least 69 died - “the largest waterborne outbreak recorded in U.S. history.”111 Although there is no evidence to suggest that this contamination occurred intentionally, it revealed society’s enormous vulnerability to adulterated water supplies.

Without a doubt, access to a three-dimensional AR display of the grid’s interconnected components would make such an attack even easier to carry out and more effective in its results. Again, this sort of threat does not emerge from whole cloth; governments and utilities are (generally) already sensitive to the need to guard such information, and access to the systems that controls these networks, carefully. But with the increased transparency that AR brings comes a commensurate need to weigh carefully how much information is shared, and how well-secured the sensitive data is kept. If these high-value networks are kept as unsecured as some of the commercial IOT networks that have been cited for lax security (such as TrendNET112), the result could be far more catastrophic than mere embarrassment and civil fines.

REPURPOSING THE INFRASTRUCTURE OF AN AUGMENTED WORLD FOR CRIMINAL PURPOSES

One of the most exciting features of the emerging augmented world is the power it gives individuals to create and innovate. We are so awash in information, programming skill, and manufacturing capability that we already have the ability to create a far more diverse range of applications than we currently have. All that is needed is time and imagination.

Again, that applies equally to those who innovate for criminal purposes. Police officer and long-time AR commentator Joseph Rampolla sees the combination of augmented reality and flying drones as a real security threat in the near term (Fig. 8.4). In April 2014, for example, FBI agents arrested a Moroccan national who was allegedly plotting to use a consumer-grade drone to fly a homemade bomb into a Connecticut school.113 Drone aircraft are a growth market for visual AR. The “Fat Shark” line of goggles are specifically designed to give drone pilots a bird’s-eye view through the vehicle’s on-board cameras, creating the illusion that they are actually on board.114 The popular “AR Parrot” drone creates a similar effect by beaming live HD video to the mobile device used to control it, and several applications (both official and otherwise) are available to display that feed directly into various AR-capable digital eyewear. This offers a more intuitive method of controlling the craft’s trajectory, but

FIGURE 8.4

Joseph Rampolla.

at the same time increases their attractiveness as a means of delivering explosives. It does not take a great deal of imagination to draw parallels between AR-enabled weaponized drones and the warhead’s-eye view footage from Tomahawk cruise missiles that so captivated the American public during the war to liberate Kuwait. The military puts video cameras in its missiles and drones to better avoid interception and confirm the results of air strikes; criminals will do likewise, for the same reason.

Another component of the increasingly augmented world is the autonomous automobile. Driverless cars are already being tested on American roads, and they have been approved for deployment in the United Kingdom beginning in 2015. An internal report authored by the Strategic Issues Group within the FBI’s Directorate of Intelligence and revealed to the public in July 2014 identified these as a “gamechanging” weapon for criminals. For one thing, driverless cars will essentially take the place of the “getaway driver.” The report notes that “bad actors will be able to conduct tasks that require use of both hands or taking one’s eyes off the road which would be impossible today.”115

Such vehicles could also be packed with explosives and weaponized as easily as airborne drones could be. Car bombings have already become a staple of terrorism and low-intensity warfare across the world. Automated vehicles - especially when their use becomes so normalized as to not raise eyebrows - offer the groups behind such attacks the option to launch target car-bomb attacks without the need to recruit suicide bombers. Some in the media have attacked the FBI’s predictions as alarmist, reactionary, and anti-progress.116 To the contrary, the history of automobiles’ use in crime and terrorism make these predictions so self-evident as to be inevitable. The only surprise is that they were not made sooner. Rather than focusing only on the positive applications of these and similar technologies, companies and law enforcement alike should waste no time in devising means to deter and defeat their misuse.

CRIMINAL COLLABORATIONS THROUGH AR DARKNETS

Darknets all around us

In November 2002, a group of Microsoft researchers coined the term “darknet” to describe “a collection of networks and technologies used to share digital content.”117 The term has since come to be used (in both capitalized and uncapitalized form) to refer to the underground Internet - the “walled-off online databases that are off-limits to search engines and indexing software robots.”118 In popular culture and mainstream media, this realm has been likened to “private, invitation-only cyberclubs or gated communities requiring an access code to enter,” as well as “the world of cybercrime, spammers, terrorists, and other underworld figures who use the Internet to avert the law.”119 Sensationalism aside, darknets are simply “closed-off social spaces - safe havens in both the virtual and the real worlds where there is little or no fear of detec-tion.”120

The augmented medium, of course, offers a unique opportunity to create such safe havens that combine aspects of both the digital and the physical. Daniel Suarez best captured this idea in his novels Daemon and Freedom™. There, the primary antagonist creates an encrypted virtual network simply called “the Darknet” as a means for his operatives to communicate with each other without being detected. Through digital eyewear, they share text and audio messages, recognize each other through virtual “call-out” name badges, see their assigned paths as a red line in the sky (very much like the “virtual cable” car navigation system described in Chapter 7), share programs with each other in the form of three-dimensional digital objects, and even create such objects by performing spell-like rituals inspired by the role-playing games favored by the network’s creator.

With or without such artistic flare, AR darknets are sure to crop up in the near future - if they haven’t already - as an extension of the same clandestine criminal organizations that exist today. Indeed, they apparently already exist in the virtual world. Since at least 2008,121 the U.S. intelligence community has been concerned about terrorist groups collaborating in plain sight, as it were, as characters within such massively multiplayer online communities as Second Life and World of Warcraft. That was the same year that the U.S. Intelligence Advanced Research Projects Activity (IARPA) launched its “Project Reynard” to uncover recruiting and training operations going unnoticed in these online gaming environments.122 The use of these online communities to recruit operatives was also a key plot point in Daniel Suarez’s books, as well as in the novel MMORPG by Dutch author Emile van Veen.123 When these online communities begin expanding into the physical world by way of AR - as they have already begun to do - encrypted digital data tied to specific physical locations will become potential means of secret communication by underground groups.

When collaboration becomes criminal

The potential for criminal liability in these communications begins with solicitation. Although we usually use this term in connection with the encouragement to engage in prostitution, it also applies more generally to any communication that encourages another person to commit a felony or serious misdemeanor, with the intent that the person commit the crime. Such encouragement may take many forms, including words, writings, or combinations of the two. Mere talk about a crime is not enough; the defendant must specifically intend that the recipient commit the crime. Once the communication is made, however, the crime of solicitation is complete; it does not matter if the hearer actually acts on the encouragement.

If two or more people reach agreement between themselves to commit an unlawful act, that agreement can be punished by the law as a criminal conspiracy. The crime here is the mutual intent to carry out the plan, which does not necessarily need to be verbalized in order to be proven. The defendants’ action can be sufficient evidence of their agreement. In some jurisdictions, the act that the conspirators agree to commit need not even be a criminal one, but simply unlawful. Moreover, once the conspiracy is formed, members can be held liable not only for the agreed-upon action, but also any foreseeable criminal actions carried out in furtherance of the conspiracy. Most jurisdictions require that at least one conspirator take some overt action in furtherance of the conspiracy before liability will be imposed, but this is not a high threshold; virtually any action will do.

Actions taken in furtherance of a crime that fall short of carrying it out can still be punished as an attempt. To be held liable, the defendant must have specifically intended that the crime be committed and do something that constitutes a substantial step toward completing the crime.

As current criminal behavior migrate into the augmented medium, legal liability will follow. It is easy to picture a number of scenarios in which AR messaging could be considered solicitation, conspiracy, or attempt. Instigators could digitally mark a location with symbols, virtual objects, or instructions that other members of a gaming or Darknet community would recognize as an encouragement to commit a criminal act. As in a particular scene in Daniel Suarez’s books - in which several members of the Darknet receive precise instructions from an omniscient voice speaking through their eyewear to walk here, turn there, hand this package to that person at this specific time, culminating in an untraceable but impeccably coordinated mass shooting - separate instructions could be sent in sequence to various members of a Darknet community that constitute foreseeable criminal acts in furtherance of a conspiracy, even if certain members of the conspiracy are not aware of the full plan.

Again, none of these scenarios are cut from whole cloth; analogous criminality occurs every day through video messaging, SMS, telephones, and even the U.S. Mail. But each upgrade in communications technology makes it that much easier to coordinate conspiracies with increasing robustness and detail. The ability to simultaneously and remotely augment the vision and hearing of multiple individuals will be the latest step in that progression.

Augmenting personal and property crimes

Law enforcement has long foreseen the threat of criminals making use of AR in the furtherance of their crimes. In 2003, Thomas J. Cowper of the New York State Police and Michael E. Buerger of Bowling Green State University authored a paper that was published by the FBI. Entitled Improving Our View of the World: Police and Augmented Reality Technology,124 it included a substantial discussion of the types of AR crimes that law enforcement personnel of the future would encounter. “It is necessary to anticipate that the bad guys will have access to the technology fairly early and will work to devise both defensive measures and counterattack strategies,” the authors wrote. “Indeed,” they continued, “it may be wise to anticipate that the criminal element may already be ahead of the police in these areas.”125

Cowper and Buerger’s primary concern was criminals’ use of AR to gain a tactical advantage over police officers in the field. “It is only a small leap of the imagination,” they wrote, “to envision the interior of a mob bar or restaurant being ... outfitted to support a rudimentary AR environment.... enough to discern whether an informant is carrying a wire, or where an undercover officer has concealed a backup weapon.”126 They went on to mention such complementary technology as “cameras that spot liars,” “stolen [virtual] ‘Friend/Foe’ signatures,” and “night time thermal imaging.” These are all capabilities that one could easily conceive of being added to existing or in-development digital eyewear.

Enhanced situational awareness through AR would also aid individuals in carrying out various crimes, especially those against property. There are already an endless number of apps available that cull certain types of data from social media and other public databases. In 2010, the site Please Rob Me127 made a splash when it collected - for the purpose of raising awareness - posts by individuals indicating that they were not at home. It is not difficult to imagine an AR network dedicated to visualizing this same information over the locations in question, just to make it that much easier for the would-be burglar to find a place to rob. Around the same time, an AR industry blogger posited this scenario:

“[Y]our mother comes over to your house and tweets about your priceless collection of Ming dynasty vases. Your home location is geotagged and out there for all to see along with details of your most valued possession. An enterprising thief using the latest version of BurglAR would be able to see high value items worth stealing in the local area.”128

Cowper and Buerger highlighted similar, albeit more violent, concerns:

When “through-the-wall” technology becomes available, it can be used to pinpoint the location of individuals in a private home (or a police station) for rescue, k idnap, or assassination. It can identify key junctures to cripple electronics, tell when the on-duty data entry clerk has gone to the relief room on break, show the location of Evidence/Property rooms and their electronic monitors, isolate burglar alarms on private residences and send false signals to cover electronic intrusions....

The police are not the only, nor even the most likely targets: intrusive technology in the hands of the bad guys makes the citizenry far more vulnerable and in need of protection. Leaving timer lights on in the house, even with recorded music or conversation or barking dogs, is of little consequence to a burglar who can establish electronically that the house is not occupied. The thought of portable through-the-walls technology in the hands of a child kidnapper/murderer is terrifying, as the Polly Klaas, Samantha van Dam and Elizabeth Smart cases vividly illustrate.129

Speaking from experience, these authors see the technologies of the augmented world as inevitable steps in the endless cycle of escalation and countermeasure between cops and robbers. As Augmented World Expo co-founder Tish Shute is fond of saying, augmented reality is a “superpower,” and it can be used for good or for evil.130 Or, more likely, for both.

LAW ENFORCEMENT USAGE

AR by itself is simply a medium. Like any other medium or technology, how it is used will be up to the people using it. As Cowper and Buerger predicted, for every criminal exploitation of AR, there is likely to be a responsive counter-measure, or even an escalation, by law enforcement.131

ENHANCING SITUATIONAL AWARENESS

Cowper and Buerger foresaw situations in which police officers engaged in tactical law enforcement situations would rely on augmented reality data to gain the tactical upper hand over resisting suspects. “AR information can be transmitted wirelessly from a centralized computer network, accessed directly from a wearable computer carried by the individually equipped AR user, acquired from purposely embedded devices within a surrounding intelligent environment and acquired from an array of AR sensors scanning the immediate or visible location of the user. The information is then projected onto a see-through heads-up display, transmitted audibly to a headset, or felt through a haptic interface like a glove.”132 In other words, officers would essentially become the “Robocop” character that inspired so many early innovators of AR (Fig. 8.5).

Developments since their report, particularly in the area of visual AR, have brought us very close to realizing this predicted future. In 2009, the San Jose police experimented with head-mounted cameras to monitor their interactions with civilians. Officers activated the over-the-ear cameras every time they responded or made contact with a person. At the end of the officer’s shift, the recording was downloaded to a central server. The pilot project was launched in response to public criticism over incidents of police violence.

More recently, several law enforcement agencies have begun to test the use of Google Glass and other digital eyewear in the field. Most prominent among these is the New York City Police Department - the country’s largest police department - which began beta tests of Glass in February 2014,133 before they became publicly accessible. Reports said that the department had obtained a few of the devices and were evaluating

FIGURE 8.5

The Robocop films depicted the advantages of enhanced situational awareness for officers through AR.

their usefulness for officers on patrol.134 At that time, “[t]he chief information officer of the San Francisco police department, Susan Merritt, said that her department ha[d] yet to test the wearable Google computers. But she says the applications for law enforcement are potentially huge.”135 Merritt cited facial recognition applications, instant access to records, and reduction of paperwork as potential advantages.136 Members of the Secret Service are said to be “smitten”137 with Glass and have been spotted in the wild testing it out. Brazilian police officers, moreover, reportedly already employed “facialrecognition camera glasses that can capture 400 facial images per second to store them in a central database of up to 13 million faces” during the 2014 World Cup.138

I have also spoken with Bill Switzer, head of CopTrax, a division of Stalker Radar in Georgia. CopTrax is making a name for itself as the first private company to offer a software solution to law enforcement officers based on Google Glass.

On Friday, September 13, 2013, the Byron Police Department in Georgia - a loyal Stalker Customer - captured video footage using Glass while running the CopTrax software application for Android (Fig. 8.6). Byron PD uses the CopTrax video system in their cars but during the field trail the goal was to capture video using CopTrax from the vantage point of the officers eyes using the new Google Glass wearable computers. In order to avoid running down Glass’s battery, the CopTrax system doesn’t start recording until the officer activates his car siren. Byron was able to capture footage of an arrest, a traffic stop, using radar and lidar, and firing weapons

FIGURE 8.6

The CopTrax system on Glass.

while wearing Glass - reportedly the first time an arrest had been captured through Glass by the arresting officer (but not, as discussed below, the first time anyone had used Glass to film an arrest).

CopTrax is not the only outfit interested in equipping officers with Glass. A company named Mutualink demonstrated an app in August 2013 that would allow officers to communicate in real-time via streaming video from the scene, as well as to receive and view key documents, including things like building schematics, medical records of victims, live feeds of security cameras in the area and more.

The United States military - whose technological advances often trickle down to law enforcement agencies - has likewise been at work for years developing digital eyewear for soldiers. The Defense Advanced Research Projects Agency, or DARPA, has developed a prototype tactical augmented reality system called the Urban Leader Tactical Response, Awareness and Visualization, or ULTRA-Vis.139 (Fig. 8.7) This “system overlays full-color graphical iconography onto the local scene ... [using an] integrated a light-weight, low-power holographic see-through display with a vision-enabled position and orientation tracking system.”140 The device is meant to enhance situational awareness by “visualiz[ing[ the location of other forces, vehicles, hazards and aircraft in the local environment even when these are not visible to the Soldier. In

FIGURE 8.7

DARPA’s ULTRA-Vis system.

addition, the system can be used to communicate to the Soldier a variety of tactically significant (local) information including imagery, navigation routes, and alerts.”141

A similar device, called the X6, is being developed for the Defense Department by San Francisco-based Osterhout Design Group.142 During a June 2014 demonstration of the device, a user looked at a two-dimensional map, “and suddenly structures appeared in three dimensions related to objects of interest.”143 Here again, facial recognition capability is high on the government customer’s priority list, and an Australian company called Imagus has developed a program for the X6 that provides it. 144 The Defense Department has already ordered 500 units of the device.145 Likewise, “United Kingdom-based BAE systems built the Q-Warrior high-tech headset to live-stream more to soldiers than ever before, and provides a tremendous battlefield advantage by showing soldiers multi-dimensional, full-color displays of battle zones outside their fields of vision.”146 Similar applications for both first responders and the military are summarized in Kipper and Rampolla’s book.147

Discussing technological developments since the publication of his book, Ram-polla shared with me his eagerness to see law enforcement make use of instant threedimensional mapping capabilities such as those offered by the Structure Sensor148 and Google’s Project Tango.149 In particular, Rampolla envisions this functionality added to an aerial drone, allowing officers to map out in real time “the position of active shooters” during hostile encounters. A forerunner of such technology received an

FIGURE 8.8

ARS by Churchill Navigation.

“Auggie Award” at the 2011 Augmented Reality Event150 in Santa Clara, California. Churchill Navigation of Boulder, Colorado won the award for ARS (Fig. 8.8), a helicopter-mounted system that gives in-flight officers a heads-up overlay of street names and other navigational data over their view of the ground during a chase, giving the effect of an immersive version of Google Maps.

HARVESTING DIGITAL INFORMATION FOR CRIME

INVESTIGATION AND PREVENTION

Rampolla also foresees augmented world technologies being used to harvest data in the course of investigating and preventing crimes. As the foregoing discussion highlighted, the law enforcement and military agencies who have already begun work on AR eyewear have consistently identified facial recognition technology as a top priority.

Cowper and Buerger described its utility:

A more robust example of AR technology is real-time facial recognition. A user wearing an AR system containing a dataset of business and personal contacts (or a police officer with access to a known-criminal database) that included facial recognition features would always know the names and associated information of people in his or her presence that are matched within that database. Upon approaching any person the AR system could automatically capture and compare their facial or biometric features and if found, superimpose a heads-up textual annotation of the person’s name and available statistics in the user’s field of view, or provide an auditory announcement into an earphone.

Rampolla expects law enforcement agencies equipped with such devices to regularly harvest such data into databases for later comparison to suspects, much like agencies have begun to do with license plates in recent years.

Cowper and Buerger predicted a number of applications for AR in crime scene investigation, including “[t]he use of AR video, audio and sensing devices used to visualize blood patterns, blood stains and other sensor-detectable forensic data available at crime scenes.” Similarly, they said, “[f]orensic pathology could benefit from various advanced medical imaging techniques to visualize traumatic penetrating wounds before physical autopsy.” Long time AR developer Robert Rice likewise authored an entire chapter on “Augmented Reality Tools for Enhanced Forensic Simulation and Crime Scene Analysis” in the 2012 book Working Through Synthetic Worlds.151 “Law enforcement and investigations officers,” he wrote, “will have the ability to mark and highlight evidence with virtual markers and metadata, as well as run real-time tests and analysis through the use of dynamic tools and immediate access to key databases and other information sources.”152

Such capabilities have since materialized. In February 2012, it was revealed that “[r]esearchers at Delft University of Technology in the Netherlands have created AR goggles that let investigators create 3D videos of crime scenes, tag evidence and then virtually re-visit the scene.”153 “With this tech, you’d be free to move and look around while you manipulate the electronic display with a pair of gloves. The left hand brings up a set of menus and tools, while the right hand acts as a pointer. By pointing to a blood splatter or bullet holes (for example), you’d be able to tag them as points of interest in a 3D-model of the crime scene.”154 “If the person wearing the glasses requires assistance, they can contact someone back in the lab who can watch their video stream, speak to the wearer through a headset and place markers in the scene using a mouse and keyboard. This would also allow a police officer to take the first look around a crime scene.”155

Visualization in AR would be useful for more than just cataloguing physical evidence at a crime scene. Tweetaround, an AR app introduced in 2010, visualized tweets according to the geolocation from which they were posted. Rampolla observes that expanding and refining that functionality could be incredibly useful for investigators trying to reconstruct what observers saw at a particular time and place.

Police have even proposed crowd-sourcing such investigation data. In January 2014, a San Jose, California city councilman proposed a system that “would allow property owners voluntarily to register their security cameras for a new San Jose Police Department database. Officers then would be able to access the footage quickly after a nearby crime has occurred.”156 To the cash-strapped police department, such a database would save the expense of collecting security footage on an ad hoc, door-to-door basis in response to each crime reported. Predictably, civil rights groups raised the alarm, particularly because this was the same city in which police had also begun wearing video cameras on their persons to prevent abuses. But San Jose was not the first to create such a public-private surveillance collaboration. Cities such as Philadelphia and Chicago and small towns such as Los Gatos, California have launched similar initiatives, with significant results. The Philadelphia Police Department reports that, over the course of two years, its SafeCam program resulted in over 200 arrests.157 With advanced AR eyewear, officers could access and view such remotely-stored footage while standing in the actual location that was filmed (as was depicted in the 2013 remake of Robocop).

FORCE MULTIPLICATION WITH AUTONOMOUS DRONES

Yet another development presaged by the original Robocop is the use of unmanned ground vehicles (i.e., robots) to amplify the force projection capabilities of human officers. By the time the movie was remade, this was already reality. For example, the “Packbots” manufactured by iRobot and used by American soldiers in Iraq and Afghanistan were employed by Brazilian police during the 2014 World Cup.158 Various groups have experimented with adding AR visualization capabilities to robots like these to “enable better mission performance and better skill transfer from platform to platform,”159 and such devices represent an integral component of a future augmented world.

FIGURE 8.9

The arrest that Chris Barrett captured #throughglass.

South African company Desert Wolf has taken the concept one step further with “the Skunk,” the heavy-duty, semi-autonomous octocopter drone it debuted in June 2014.160 Designed for riot control, the drone “can unleash pepper spray, plastic bullets, paintballs, strobe lights and ‘blinding’ lasers” - at a potential combined rate of 80 projectiles per second - as well as various audio messages.161 “The Skunk is also equipped with FLIR thermal infrared and HD color cameras to capture the identity of those in a crowd to be controlled.”162 According to the manufacturer, dozens of units have already been ordered by police departments and other customers.163

TURNING THE CAMERAS BACKWARDS: WEARABLES AS A MEANS TO MONITOR LAW ENFORCEMENT

On July 4, 2013, New Jersey Google Glass Explorer Chris Barrett wore his device through what proved to be fairly raucous Independence Day celebrations. In the midst of it, he ended up capturing on video what was reported to be the first arrest filmed through Glass (Fig. 8.9).164 “I think if I had a bigger camera there, the kid would probably have punched me,” Barrett said. “But I was able to capture the action with Glass and I didn’t have to hold up a cell phone and press record.”165 Perhaps the more important question is what the arresting officer would have done if he had noticed Barrett.

Although I am not aware of any reason to suspect any irregularities with this arrest, videos taken with mobile and wearable devices have exposed all manner of officer excesses and mistakes. In July 2013, the San Francisco Fire Department rushed to the aid of those who survived an Asiana Airlines plane crash at the city’s airport. Those fire fighters were wearing helmet cameras. “The footage recorded by Battalion Chief Mark Johnson’s helmet camera shows a Fire Department truck running over 16-year-old Ye Meng Yuan while she was lying on the tarmac covered with fire-retardant foam.”166 167 The incident was then reported by journalists, leading to an internal investigation. Soon thereafter, Chief Joanne Hayes-White announced a “clarification” that a pre-existing ban on video cameras applied to devices worn by fire fighters. The Chief cited medical privacy concerns, but the timing smacked of damage control.

As the world becomes increasingly augmented, video footage of every sort -including of police officers acting in the line of duty - will proliferate. If history is any guide, law enforcement and prosecutors will continue to respond to such surveillance by arresting and prosecuting those who record them. It currently seems that every week brings another headline about yet another citizen arrested and charged with wiretapping or eavesdropping (or sued civilly for invasion of privacy) for recording police officers acting in the line of duty. Indeed, in 2011, a 41-year-old mechanic in Illinois faced life in prison merely for recording officers issuing a citation.

In recent years, social media has provided a new and more effective way to get those videos out to the public. Just type in the search term “police brutality” into YouTube and see how many results pop up. This trend will only accelerate as the footage is recorded by more types of wearable devices, including in three dimensions, and broadcast through augmented means. Citizens and officers across the country need to know once and for all, therefore, whether recording cops is lawful.

As an attorney, I have advocated in court that such recording is protected by the First Amendment. That said, before you run out and click the “record” button, keep in mind that not all courts (and certainly not all police officers) agree. But almost every court to consider the issue has reached the same conclusion. Here’s why.

THE RIGHT TO HOLD PUBLIC OFFICIALS ACCOUNTABLE

IS ENSHRINED IN THE FIRST AMENDMENT AND OUR SYSTEM OF ORDERED LIBERTY

Our democratic system of ordered liberty cannot tolerate a rule of law that permits public officials to keep “private” - and, hence, free from public scrutiny - the manner in which they choose to enforce the law against private citizens. That fundamental principle is part and parcel of the right of open debate on issues of public importance enshrined in the First Amendment to the U.S. Constitution. In 1980, Supreme Court Justice William J. Brennan wrote: “the First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government.”167 The Court has similarly held that “[t]here is an undoubted right to gather news from any source by means within the law”168 and “news gathering is not without its First Amendment protections,. .. for without some protection for seeking out the news, freedom of press could be eviscerated.”169 This First Amendment right to gather “news” applies equally to all citizens, not just the professional press.

When public officials restrict access to information about their official activities, they are “selectively control[ling] information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment ‘did not trust any government to separate the true from the false for us.’ They protected the people against secret government.”170 “Secret government” - law enforcement outside the scope of public scrutiny - is precisely what allowing cops to suppress video of themselves would permit.

THE FIRST AMENDMENT SEVERELY LIMITS PUBLIC OFFICIALS’ ABILITY TO ASSERT PERSONAL PRIVACY IN THEIR WORK-RELATED SPEECH

Speech by public officials carries few, if any, of the personal rights and privileges associated with private speech. In 2006, the U.S. Supreme Court reiterated “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.”171 “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.” 172 Likewise, the landmark case of New York Times Co v Sullivan,173 established that a public official could not recover for “a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice,’ a nearly insurmountable burden of proof. This holding flowed from our society’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

Accordingly, several courts have held that recording of police officers and other public officials in the course of carrying out their duties is directly protected by the First Amendment.174 These federal constitutional principles severely curtail, as a matter of law, the conceivable range of privacy interests that on-duty officers could assert.

POLICE OFFICERS ARE PARTICULARLY SUBJECT

TO PUBLIC SCRUTINY

Police officers are the epitome of a public servant, whose official words and deeds are subjects of legitimate public scrutiny. As recently as June 2010, the United States Supreme Court held that “a law enforcement officer. .. should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications.”175

Courts around the country universally echo this reasoning. As the Massachusetts Supreme Court explained:

Law enforcement officials ... necessarily exercise State power in the performance of their duties. All police officers are empowered to further the preservation of law and order in the community, including the investigation of wrongdoing and the arrest of suspected criminals. Even patrol-level police officers are vested with substantial responsibility for the safety and welfare of the citizenry in areas impinging most directly and intimately on daily living: the home, the place of work and of recreation, the sidewalks and streets. Further, although a patrol officer such as the plaintiff is “low on the totem pole” and does not set policy for the department, abuse of the office can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss. All police officers have the ability and authority to exercise force. We conclude, in line with the vast majority of other jurisdictions, that the abuse of a patrolman’s office can have great potentiality for social harm; hence, public discussion and public criticism directed towards the performance of that office cannot constitutionally be inhibited by threat of prosecution under State libel laws.176

Likewise, the Montana Supreme Court wrote that “the position of great public trust which law enforcement officers occupy [as compared to other public officials]. Specifically, the nature of the office [job] mandates that the office holder [officer] be properly subject to public scrutiny in the performance of his duties, and the public has the right to be informed of the actions and conduct of such office holders [officers].”177 Consequently, law enforcement personnel of every rank and function are public figures for First Amendment purposes, and - as illustrated below - no expectation of privacy in their official law enforcement actions.

Virtually all courts to address the issue have held that police officers cannot have a reasonable expectation of privacy in the performance of their public law enforcement duties

Courts applying the U.S. Constitution and the laws of Washington, New Jersey, Missouri, and Pennsylvania (informed and limited by the above-mentioned First Amendment principles) have held that police officers performing their law enforcement duties cannot objectively expect their actions to be private and hence free from unauthorized recording.

One of the earliest cases on point was State v Flora,178 decided in 1992 by the Washington Court of Appeals. There, a private citizen recorded his own arrest “because he feared the deputies would assault him and use racial slurs as they had done in the past.” He was convicted of criminal eavesdropping. In reversing the conviction, the Washington court noted a lack of authority allowing “public officers [to assert] a privacy interest in statements uttered in the course of performing their official and public duties,” and held that “the police officers in this case could not reasonably have considered their words private.” In Flora and its progeny, “Washington courts have refused to transform the privacy act into a sword available for use against individuals by public officers acting in their official capacity.”179

Across the country, “[c]ourts have held that police officers do not have a reasonable expectation of privacy when they are interacting with suspects.”180 Such expectations are objectively unreasonable, according to the U.S. Court of Appeals for the Eight Circuit, even where officers subjectively believe their words to be private:

Clearly the officers’ subjective expectations [were] that their communication would not be intercepted.... The objective reasonableness of the subjective expectations of the officers, however, is another matter. The undisputed facts show that the tape-recorded incident took place in a public jail and between police officers and a prisoner. These are the only material facts necessary to prove, as a matter of law, that it was not objectively reasonable for the officers to expect that their conversations would not be intercepted.181

Because society entrusts police officers with unique license to deprive others of liberty, the manner in which they use those powers vis-a-vis private citizens is inherently a subject for public scrutiny, and not the officer’s own private concern.

More recent legal developments have continued this trend. In 2011, the U.S. Court of Appeals for the First Circuit ruled that “a citizen’s right to film government officials ... in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”182 In January 2012, the U.S. Justice Department filed a brief in the U.S. District Court for the District of Maryland expressly supporting a citizen’s right to film police in public. According to the DOJ:

This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative. The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.

Later the same year, the U.S. Court of Appeals for the Seventh Circuit enjoined enforcement of Illinois’ eavesdropping law. In a 2-1 decision, the court ruled that the law, which prohibits people from making audio recordings of police officers in public, “likely violates” the First Amendment.

MASSACHUSETTS SHOWS WHAT HAPPENS IF FIRST AMENDMENT RIGHTS ARE NOT PROTECTED

In the widely criticized 2001 decision Commonwealth v Hyde,183 a motorist was convicted of eavesdropping for recording his traffic stop by police. A divided Massachusetts Supreme Court upheld the conviction. The court sidestepped Flora’s rejection of privacy protection for police acting their official capacities by noting that Massachusetts’ eavesdropping statute - unlike those in most other states -outlawed all unauthorized recording, whether or not the recorded persons had a reasonable expectation of privacy.

Two of the six justices dissented, lamenting that, had the Rodney King beating occurred in Massachusetts, George “Holliday would have been exposed to criminal

indictment rather than lauded for exposing an injustice.” The majority did not disagree, but was nevertheless unmoved. It relied on the plain text of the statute “in favor of speculation as to how an imaginary scenario might have played out, had the Rodney King episode occurred in Massachusetts.” Massachusetts Chief Justice Marshall saw this development as a grave threat to our Republic:

Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals when they seek to hold government officials accountable by recording - secretly recording on occasion - an interaction between a citizen and a police officer.

This view has been vindicated by virtually every other court to consider a similar dispute.

REPRISALS BY POLICE AGAINST THE CITIZENS WHO RECORD THEM ARE INEVITABLE WITHOUT CLEAR JUDICIAL GUIDANCE

The instinct to suppress video recordings of their misdeeds is not unique to the law enforcement officers of any particular jurisdiction. And in light of the ever-increasing ubiquity of audiovisual recording technology in modern society, officers and other public officials will have more opportunities to initiate such reprisals. In 2010, 25-year-old motorcyclist Anthony Graber used a helmet-mounted camera to record his traffic stop by a plain-clothes officer in Maryland. After posting the clip to the internet site YouTube, police raided Graber’s home, confiscated his computer and camera, and charged him with wiretapping - a felony carrying a possible sentence of 16 years’ imprisonment (Fig. 8.10).

The incident sparked a torrent of news coverage and editorials decrying the charges. The same publications also note the disturbing increase in such arrests in re-

FIGURE 8.10 cent years.184 Notably, those charged with interpreting the law in these States continue to reject such charges. On July 7, 2010, the Maryland Attorney General responded to the Graber incident by endorsing the conclusion that “a police stop of an individual necessarily is not a ‘private conversation.’185 Following Flora and similar cases - and distinguishing Massachusetts’ Hyde decision - the Attorney General opined that a reasonable expectation of privacy is “an unlikely conclusion as to the majority of encounters between police and citizens, particularly when they occur in a public place and involve the exercise of police powers.”

In a September 27, 2010 opinion, Judge Emory A. Plitt agreed and dismissed the eavesdropping charge against Graber, holding that, “[i]n this rapid information technology era in which we live, it is hard to imagine that either an offender or an officer would have any reasonable expectation of privacy with regard to what is said between them in a traffic stop on a public highway.” The thoroughly researched opinion concludes with the following reflection:

Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. “Sed quis custodiet ipsos cutodes” i.e., “Who will guard the guards themselves?”

Many courts, however, have yet to pass on the issue. Therefore, police and prosecutors in those jurisdictions remain free to interpret the law as they see fit. “Even if these cases do not hold up in court, the police can do a lot of damage just by threatening to arrest and prosecute people. . . . Most people are not so game for a fight with the police. They just stop filming. These are the cases no one finds out about, in which there is no arrest or prosecution, but the public’s freedoms have nevertheless been eroded.”186 By contrast, thanks to the clear guidance of the Flora decision, police officers in Washington State know unequivocally that the conversations they have with citizens in their official capacities are not private.187

CITIZEN VIDEO RECORDINGS ARE EFFECTIVE IN CURBING UNLAWFUL CONDUCT BY POLICE

Audiovisual recording empowers citizens to document abuses of power by law enforcement officers that would otherwise never be held accountable. Data collected by the United States government suggests that most police officers will not report even serious misconduct by a fellow officer. The entire nation, of course, is familiar with the video of Rodney King’s March 3, 1991 beating by Los Angeles police, which George Holliday, a private citizen, recorded with his camcorder. Without Holliday’s recording, however, it is probable that the officers involved would not have been convicted in federal court, and the Christopher Commission, which revealed widespread corruption in the Los Angeles Police Department, would (by the Commission’s own admission) never have been formed. Cell phone videos taken by onlookers were the key evidence against the San Francisco officer convicted of manslaughter in the January 1, 2009 fatal shooting of Oscar Grant.

Video evidence has been no less useful in holding law enforcement officers accountable in my home state of Michigan. In November 2009, a Lansing police officer was disciplined after video evidence emerged showing him tasering a handcuffed and subdued suspect. In April 2005, “videotape evidence played a key role in convincing prosecutors to charge a Michigan State Police trooper with second-degree murder in the. .. shooting of a homeless man”188 in Detroit. Similar examples abound from across the country and the globe.

This is a public service that benefits both society and police departments. Advocacy groups have recognized the power of a camera-armed citizenry. In 2006, the ACLU responded to repeated accusations of police misconduct in St. Louis by distributing free video cameras to local residents, for the purpose of documenting any such incidents. Police departments themselves have acknowledged the social utility of such precautions. St. Louis’ police chief responded to the ACLU’s plan by saying, “It’s legal and there’s nothing wrong with it.” As noted above, in 2009, San Jose police adopted a similar approach in response to incidents of police violence.

Without question, society as a whole around the country is moving toward more video recording of police officers acting in the line of duty, not less - and our democracy is healthier for it. Shielding public servants acting in official capacities from embarrassing public scrutiny simply is not worth the price of eroding our civil liberties.

1

See, e.g., “Scary Ghosts Come To Life In New Augmented Reality App From Goosebottom Books,” Social Times, September 4, 2012 http://socialtimes.com/scary-ghosts-come-to-life-in-new-augmented-reality-app-from-goosebottom-books_b177104

2

Then again, Orson Welles probably thought the same thing in 1938 when he performed his original War of the Worlds radio broadcast, but that didn’t prevent large numbers of people from panicking.

Stejan Lovgen, “War of the Worlds”: Behind the 1938 Radio Show Panic, National Geographic News, (June 17, 2005), available at http://news.nationalgeographic.com/news/2005/06/0617_050617_ warworlds.html (last visited August 29, 2014).

3

Ben Burrows, Video: Watch incredible augmented reality bus stop that scares Oxford Street commuters stiff, Mirror, (March 21, 2014), available at http://www.mirror.co.uk/news/weird-news/video-watch-incredible-augmented-reality-3268061 (last visited August 29, 2014).

4

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he uses them to set a new score, an onlooker exclaims, “It’s as if there’s a machine gun built right into your glasses!” “Exactly,” Louie explains “The glasses pick up the movements of my pupils and respond with impulses which program the memory in the cartridge. The cartridge remembers the patterns on my pupils, producing a recognizable firing zone, which is activated by organic impulses produced when my pupils intercept the reflected light from the target.” He calls it Nichols’s Special Vision Track Firing System (VTFS), or the “Pupil Pistol.” To Nichols’ chagrin, his superiors promptly copy the technology and incorporate it into their pilots’ targeting computers.

It’s also a truism that government-funded technologies eventually tend to filter down into the public’s hands. From Tang to assault rifles to spaceflight, companies quickly figure out how to commercialize military-funded capabilities.

AR for the individual shooter will follow this same trend, sooner or later. Shooting games are already some of the most popular AR applications for mobile devices. How much longer until gun stores sell heads-up targeting accessories for real handguns? This alone, of course, is unlikely to be per se illegal; in fact the current political climate ensures that there will be a fierce confrontation between gun control advocates who see augmented weaponry as dangerous and Second Amendment purists who argue that the only way to stop a criminal with AR targeting capabilities is with one’s own augmented gun.

It seems inevitable that AR will be used by criminals to place digital bounties on certain places or people, visible only by others using a certain AR darknet. (More on those below.) Even more unnerving would be target device that identify certain individuals based on AR information that they share about themselves, once augmented

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“Structure home webpage, available at Structure - The world's leading healthcare 3D scanning platform (last visited on September 5, 2014).

149

“Project Tango home webpage, available at https://www.google.com/atap/projecttango/#project (last visited on September 5, 2014).

150

The former name of what is now the Augmented World Expo.

151

Google Books description of Working Through Synthetic Worlds by Morrison, Kisiel, and Smith, available at http://books.google.com/books?id=EebmDgC2bb0C&dq=augmented+reality+crime+sce ne&source=gbs_navlinks_s (last visited on September 5, 2014).

152

Id.

153

Mashable Video, Augmented Reality Goggles Virtually Recreate Crime Scenes [VIDEO], Mashable, (February 1, 2012), available at Augmented Reality Goggles Virtually Recreate Crime Scenes [VIDEO] at 201 (last visited on September 5, 2012).

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Kevin Lee, Coming Soon: Augmented Reality Goggles for Crime Scene Investigations, TechHive, (Feb. 1, 2012), available at http://www.techhive.com/article/249143/coming_soon_augmented_real-ity_goggles_for_crime_scene_investigations.html (last visited on Sept. 5, 2014).

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Jacob Aron, AR googles make crime scene investigation a desk job, NewScientist, (Jan. 31, 2012, available at http://www.newscientist.com/article/mg21328495.700-ar-goggles-make-crime-scene-investigation-a-desk-job.html#.U9mkhvldV8E (last visited on Sept. 5, 2014).

156

Mike Rosenberg, San Jose police could tap into volunteer residents’ private security cameras under new proposal, San Jose Mercury News, available at http://www.mercurynews.com/crime-courts/ ci_24979753/san-jose-police-would-tap-into-residents-private (last visited on Sept. 5, 2014).

157

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Sean Gallagher, Flying RoboCop is a “riot control” octocopter with guns and lasers, arstechnica, (June 19, 2014), available at http://arstechnica.com/tech-policy/2014/06/flying-robocop-is-a-riot-control-octocopter-with-guns-and-lasers/ (last visited on Sept. 5, 2014).

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Id.

162

Id.

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Id.

164

John Koetsier, “I filmed the first fight and arrest through Google Glass” (VB news, (July 5, 2013), available at http://venturebeat.com/2013/07/05/i-filmed-the-first-fight-and-arrest-through-google-glass/ (last visited on Sept. 15, 2014).

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77Id.

166

AP, “After airliner crash, SF chief bans helmet cams,” Aug. 18, 2013, available at http://bigstory.

167

ap.org/article/after-airliner-crash-sf-chief-bans-helmet-cams

168

^Richmond Newspapers v Va, 448 US 555, 586-88 (1980) (Brennan, J concurring)

'"Houchins v KQED, Inc, 438 US 1, 11 (1978) (citations omitted)

169

Branzburg v Hayes, 408 US 665, 681, 707 (1972)

170

^Detroit Free Press v Ashcroft, 303 F3d 681; 683 (CA6, 2002) (quoting Kleindienst v Mandel, 408 US 753, 773 (1972)).

171

Garcetti v Carbalos, 547 US 410, 421 (2006).

172

Id.

173

376 US 254, 279-280 (1964)

174

See, eg, Smith v City of Cumming, 212 F3d 1332, 1333 (CA11, 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest”); Alvarado v KOB-TV LLC, 493 F3d 1210, 1219-20 (CA10, 2007) (dismissing privacy lawsuit by undercover police against videographer on First Amendment grounds); Gilles v Davis, 427 F3d 197, 212 (CA3, 2005) (“videotaping or photographing the police in the performance of their duties on public property may be a [First Amendment] protected activity”); Fordyce v City of Seattle, 55 F3d 436, 439 (CA9, 1995) (recognizing a “First Amendment right to film matters of public interest”); Blackston v Alabama, 30 F3d 117, 120 (CA11, 1994) (First Amendment protects right to film public meetings).

175

City of Ontario v Quon, 130 S Ct 2619, 2631 (2010).

176

Rotkiewicz v Sadowsky, 730 NE2d 282, 288 (Mass, 2000) (emphasis added);

177

Bozeman Daily Chronicle v City of Bozeman Police Dep’t, 859 P2d 435, 440 (Mont, 1993)

178

68 Wn App 802; 845 P2d 1355 (Wash Ct App, 1992)

179

nJohnson v Hawe, 388 F3d 676, 682 (CA9, 2004) (internal quotation omitted) (upholding a §1983 action against a police chief who arrested a citizen for videotaping the chief “in the performance of his public duties”).

180

^Hornberger v. ABC, 799 A2d 566, 594 (N.J. Super. 2002) (dismissing eavesdropping charges against television station that used hidden cameras to record police searching a car); see also Hart v City of Jersey City, 308 NJ Super 487, 493; 706 A2d 256 (NJ App Div, 1998) (“police officers, because they occupy positions of public trust and exercise special powers, have a diminished expectation of privacy”); Commonwealth v Henlen, 522 Pa 514; 564 A2d 905 (Penn, 1989) (finding no reasonable expectation of privacy for police officer who was recorded interrogating a prison guard in closed room); Rawlins v Hutchinson Pub Co, 543 P.2d 988, 993 (Kan, 1975) (“a public official, a fortiori, has no right of privacy as to the manner in which he conducts himself in office. Such facts are ‘public facts’ and not ‘private facts.’ Hence, a truthful account of charges of misconduct in office cannot form the basis of an action for invasion of privacy.”)

181

Angel v Williams, 12 F3d 786, 790 (CA8, 1993) (applying Missouri law).

182

94Glik v. Cunniffe, 655 F. 3d 78 (1st Cir. 2011)

183

The wearable video recorded by Anthony Graber.

184

(USA Today, July 17, 2010) (“This is an abuse of prosecutorial authority and a misinterpretation of state law. But it’s typical of the attitude of too many prosecutors and police toward people who record their encounters with law enforcement”); (ABC News, July 20, 2010) (“Arrests such as Graber’s are becoming more common along with the proliferation of portable video cameras and cell-phone recorders”); (Boston Globe, Feb. 3. 2010) (“in Massachusetts and other states, the arrests of street videographers, whether they use cellphones or other video technology, offers a dramatic illustration of the collision between new technology and policing practices”).

185

Letter from Robert McDonald of the State of Maryland Office of the Attorney General to Honorable Samuel Rosenberg, (July 7, 2010), available at http://www.thenewspaper.com/rlc/docs/2010/md-youtube.pdf (last visited on Sept. 5, 2014).

186

(Time, Aug. 4, 2010).

187

See, e.g., Johnson, supra (“Because it was clearly established under Washington law at the time of the arrest that recording a police officer in the performance of his public duties was not a violation of the Privacy Act and it was unreasonable for Chief Nelson to believe otherwise, we hold that the Chief is not entitled to qualified immunity”); Barela v City of Woodland, 358 Fed Appx 857, 859 (CA9, 2009) (same, following Johnson and Flora).

188

Ben Schmitt, Acquitted In Killing, Trapper Files a Lawsuit, Convertino and Associates webpage, (March 15, 2006), available at http://convertino.net/id21.html (last visited on September 5, 2014).