Civil libertarians see serious privacy implications in such a system. Sociopaths and stalkers might use
the technology to pick out victims. Other criminals might scan crowds in expensive neighborhoods, to see who’s not home (and thus whose home may be vulnerable to burglary). Blackmailers might frequent shady areas (bars, brothels and gambling dens) to capture images and identify potential targets.
Is it legal to take a picture of someone without their consent? Absent physical contact or other forms
of harassment (one thinks of the extremes of paparazzi photography) it is generally legal to take a photograph of an individual, in a public place, for personal (not commercial) use. See Nader v. General Motors Corp., 255 N.E.2d 765 (N.Y. Ct. App. 1970) (mere observation of a person in a public place does not constitute invasion of privacy),
www.privacynetwork.info Even a broadcasting purpose for such photography may be upheld, at least in some cases. See Deteresa v. American Broadcasting Companies, 121 F.3d 460 (9th Cir. 1997),
“Is it legal to take a picture of someone without their consent?”
www.openjurist.org. There is, however, a flexible privacy-based notion of “intrusion upon seclusion.” See Restatement of
the Law, Second (Torts), Section 652B,
www.cyberlaw.harvard.edu/privacy. Under that principle, a “highly offensive” means of gathering information (such as the use of a telephoto lens to spy on a person taking a shower at home) might be considered offensive. See Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996) (news crew anchored boat just off shore of couple’s vacation home, and used binoculars and directional mi- crophones to observe and record private activities of the family), summarized in From Paparazzi To Hid- den Cameras: The Aggressive Side Of A Free And Responsible Press,
www.informaworld.com/smpp. The courts will have to tell us, in years to come, whether the use of facial recognition technology, and data-min- ing to compare facial images to stored samples, oversteps the boundaries of common privacy expectations.
Steve Bennett’s practice at Jones Day focuses on domestic and international commercial litigation and ar- bitration, including cases involving bankruptcy, construction, corporate, energy, insurance, intellectual prop- erty, privacy and data security, and other disputes.
Steve is chair of the Firm’s e-Discovery Committee and an active member of the Firm’s construction prac-
tice team. He co-founded the Sedona Conference Working Group on International E-Discovery. He co-teaches courses on advanced civil procedure (e-discovery) at New York Law School and Fordham and previously taught a similar course at Rutgers.
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