Imagine never having to relive that awkward moment where the name of a person you’ve met many times before escapes you. Consider looking at billboards that advertise services or products actually tailored to your interests. Picture reading the news and becoming immersed in the dispute that you are reading about.
Augmented reality converts these hypotheticals into…reality. Just this summer, we witnessed children and adults alike running around cities across the world trying to capture virtual creatures appearing on their smart phone screens as if they were in the same real-world location as the player (aka Pokémon Go).
While Augmented Reality (AR) is still in its infancy, multiple industries have already actually “augmented” peoples’ experience of reality. Magazines have used AR to bring their stories to life – e.g. the Washington Post’s visual retelling this May of the events leading to Freddie Gray’s arrest and death in Baltimore. Companies have leveraged AR’s potential to improve their business – e.g. clothing retailers have used it to enhance the shopping experience. The sport industry has caught on to benefits of AR as well – as seen by Google’s indoor maps of the golf course at the Rio Olympics or platforms like interactiveSquash and Shadow Shooter that enable their users to improve their squash game with a motion sensing screen or shoot virtual enemies with an AR enhanced bow and arrow.
By blending virtual digital information in a real-world environment, the potential applications of AR are endless, and to the U.S. Congress, its implications very real.
First Congressional Hearing on Augmented Reality
Yesterday (November 16, 2016), the Senate Committee on Commerce, Science, and Transportation held the first congressional hearing on augmented reality. I was among the few hundred people in attendance in Washington D.C., getting an early, first-hand perspective on the potential applications and policy considerations of the rapidly developing technology. A number of experts in the field were there to answer Senators’ questions, namely:
- Brian Blau, Research Vice President of Gartner (leading information technology market research company)
- Ryan Calo, Assistant Professor of Law at the University of Washington in Seattle (Faculty Director of UW’s Tech Policy Lab).
- John Hanke, CEO of Niantic, Inc (the software development company that brought us Pokémon Go)
- Brian Mullins, Co-Founder & CEO of DAQRI (tech company focused on empowering people in their everyday lives through AR)
- Stanley Pierre-Louis, General Counsel of the Entertainment Software Association (the U.S. association representing companies that publish computer and video games)
U.S. Sen. John Thune, chairman of the Senate Committee on Commerce, Science and Transportation opened the hearing. He cautioned that government should not jump in too soon to regulate new technologies with a heavy-handed approach. The witnesses then proceeded to give brief testimonies and answer questions.
Brian Blau made clear that for AR technology to flourish, innovation needs to be supported and accelerated without undue restrictions. While AR is mainly used by businesses today, Blau predicted that we are not far off from consumer AR becoming common. In answering Senator Thune’s question about barriers to broader consumer adoption, Blau explained that AR can come to consumers in many ways other than expensive headsets, such as mirrors in retail stores that show shoppers what clothes might look without having to try them on.
Brian Mullins discussed the application of AR to the workspace. He addressed Senator Wicker’s question whether AR would create or replace jobs in a state like his own (Mississippi). Mullins did not hesitate to answer positively. He described AR’s potential to reduce errors, increase efficiency on complex tasks and improve worker safety. Specifically, he discussed the use of “smart helmets” and their potential to empower workers with what they call “knowledge transfer” in the workplace.
Mullins gave the fascinating example of a worker transitioning to a new manufacturing facility in her community. On her first day, she can quickly gain new skills and knowledge through step-by-step augmented reality work instructions. She can thus look at the disassembled wing of an aircraft and see step-by-step instructions appear right on top of the components that she needs to put together.
Mullins also described the benefits of AR for road safety. Sensors in vehicles can provide drivers with critical information appearing on the windscreen. DAQRI’s own AR technology has already reduced distraction and helped drivers make decisions faster. In response to Senator Danes concern about accidents in rural areas, Mullins was confident that the AR technologies designed for urban areas could be adapted to rural driving as well.
Ryan Calo highlighted the positive applications of AR, from training tomorrow’s workforce to empowering people with disabilities. Calo also recognized that AR raises acute policy concerns that companies must address if AR is to become widely adopted by American society. Calo put forward a 5-point approach for the positive development of AR:
- No assumptions of fixed growth. Augmented reality is advancing rapidly but measures should be enacted flexibly.
- Threat modeling – anticipating what adversaries might do with AR – is essential to avoid compromised systems causing harm to individuals.
- Coordination between policy makers and AR designers. Accurate policies require accurate AR models or designs.
- Consulting with diverse stakeholders. People will experience AR differently (e.g. children or incarcerated people), with each experience creating its own opportunities and dangers.
- Acknowledgment by AR designers of the inherent trade-off between collecting more data for better performance and doing so at the cost of privacy.
John Hanke explained that Pokémon Go was created with three goals in mind: (1) encourage children and people to actually go outside, (2) enable people to explore, discover and develop a deeper connection with the places they live in and (3) encourage real social interaction between people.
Hanke also defended Pokémon Go against two common criticisms: data collection and safety. First, Hanke reiterated that Pokémon Go collects only the minimum amount of data necessary to operate the game, and not, as many have alleged, vast amounts of personally identifiable data to sell to third party advertisers. Second, in response to the safety criticisms in the New York Times article linking Pokémon Go to accidents caused by distraction, Hanke maintained that Niantic has been the only actor in the industry to disable its game when a user moves beyond a certain speed. He explained that eliminating the use of the app at any speed would not only be a step too far but also ignore the issue of personal responsibility.
In response to Senator Nelson’s question about AR designers protecting their devices from hackers, Hanke described the widespread and sophisticated nature of hacking attempts at the Pokémon Go software as “eye-opening”. He also shared that AR companies often find themselves in somewhat of a “wild west” situation, not always feeling like there is a sheriff out there to help them in the fight against adversaries.
Finally, Stanley Pierre-Louis suggested that many of the legal issues arising with AR technologies fit neatly within existing legal frameworks: AR is essentially just another advanced content delivery system. Pierre-Louis cited to the late Justice Antonin Scalia’s majority opinion in Brown v. Entertainment Merchants Association, 564 U.S. 786, 790 (2011) (the case that held that video games enjoy the same First Amendment protection as books, plays and movies) that “whatever the challenges of applying the Constitution to ever-advancing technology” ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears”.
Legal Implications of Augment Reality
From a legal and regulatory perspective, AR has not yet attracted the widespread discussion one might expect. As lawyers in the ever-developing digital media space, we must advise our clients before the law settles and sometimes litigate issues that have not yet been tested.
In 2015, Brian D. Wassom published the first in-depth study of the legal implications of augmented reality (Augmented Reality Law, Privacy, and Ethics). In his book, Wassom considers AR through the prism of various established legal fields, such as privacy, advertising, intellectual property, real property, torts and criminal law.
Privacy and Augmented Reality
For example, the interaction between privacy and AR poses interesting legal questions. Consider wearable AR technology, such as facial recognition eyeglasses that enable the person wearing them to look at someone and instantly see displayed before them all of the available data on that person. To help recall forgotten details and prevent otherwise socially embarrassing situations, wearable AR technology relies on the collection of biometric data (e.g. facial recognition).
How is this regulated? At a federal level, the U.S has specifically avoided the issue. While privacy is regulated in areas such as medical records (Health Insurance Portability and Accountability Act 2000), consumer information (Fair Credit Reporting Act 1970), telemarketing (Telephone Consumer Protection Act 1991), electronic communications (Electronic Communications Privacy Act 1996) and children and the internet (Children’s Online Privacy Protection Act 1998), there is no federal law on the collection of biometric data.
Contrast this to the situation in Europe, where the Data Protection Directive 95/46/EC was specifically designed to protect the privacy and protection of all personal data collected on EU citizens.
This protection was recently strengthened by the coming into force on 25 May 2016 of the General Data Protection Regulation (the “GDPR”). Unlike a Directive, the GDPR is a Regulation and thus directly applicable in all Member States, without the need for implementation by national legislation. The GDPR strengthens the rights of individual data subjects, giving them a right to request information about data processed about them. It also imposes direct obligations on data processors to demonstrate compliance with the GDPR. This data protection regime has understandably made European companies hesitant to implement augmented reality technologies. This phenomena is clearly being felt within the industry, as reflected by John Hanke’s comment at yesterday’s hearing on the need for greater clarity with colleagues in Europe about the ambiguous interplay between AR and privacy there.
In the United States, only two states, Illinois and Texas, have enacted laws regulating the collection and use of biometric information: the Illinois Biometric Information Privacy Act (2008) and Section 503.001 of the Texas Business and Commercial Code (2009). As AR devices become more widespread, other States may be compelled to consider similar legislation as well. The issue has, for one, been on the Federal Trade Commission’s radar since 2012, when the FTC released its report “Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies”. The FTC’s Report was criticized internally (see Commissioner Rosch’s Dissenting Statement) and may change under the incoming Trump administration. A thorough understanding of the current biometric legislation and tracking of new developments is crucial for any lawyer advising AR companies using facial recognition technology in the U.S.
It is also worth considering whether the prevalence of AR technology will alter our conception of what constitutes a “reasonable expectation of privacy”. As Wassom points out, thirty years ago, shoppers in retail stores would not have expected to be filmed during their shopping sprees. Today, even if we take for granted that everyone has a recording device in his or her pocket, do we expect a retailer or the people we meet at cocktails to be recording us via AR devices? The legal answer to this question varies from state to state. To date, California has ventured the furthest, holding that, in certain circumstances, individuals benefit from a zone of privacy even outside the confines of their home or hospital, see e.g. Shulman v. Grp. W Prods., Inc., 59 Cal. Rptr. 2d 434, 457 (1996) (victim had a reasonable expectation of privacy in helicopter to hospital) and Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 277, 211 P.3d 1063, 1066 (2009) (plaintiffs had reasonable expectation of privacy in work space that their employer would not install video equipment capable of monitoring their activities behind closed doors).
Why does this matter to AR designers? While devices or apps are rolled out on a national level, state statutes cannot be avoided. A plaintiff claiming a breach of privacy by an AR product will bring a claim in the state where he or she was at the time of the alleged infringement. As such, lawyers will be required to advise both on procedural choice of law and substantive law issues.
Watch This Space
Ultimately, the list of legal implications raised by AR extends as far as its creators’ imaginations. As AR technologies continue to transition from hypothetical TED talks to actual consumers’ pockets (Bloomberg has just confirmed Apple’s development of an AR headset to be used in conjunction with the iPhone), these issues will become increasingly pressing.
Advising in this space requires not only knowledge of the current domestic and international laws governing a number of adjacent legal fields, but also a deep understanding of what AR technology is capturing, storing, converting and distributing.
Alexia Bedat is an Associate at Klaris Law PLLC