Greater public debate is necessary for society to determine how much more privacy it is willing cede. This includes the ability to learn information about your physical activities in your own home.
This blog post recites three macro-issues with predictions regarding the regulatory regimes that will address these issues.
Private Right to Action: Most state laws have huge gaps where consumers are left unprotected. For example, only California grants a person a private right of action which means enforcement will largely be dependent on attorneys general to prosecute violators. (Moreover, state statutes will need to provide guidance concerning the “injury” for which redress would be available.) With security cameras everywhere and a general consensus that rights may be waived for safety purposes, people may never consider themselves “damaged” immediately after leaving one’s house only if it is for the general good.
Such a utilitarian principle for the public good will presumably need to include stiff penalties that are enforceable in private litigation to deter companies from overreaching.
Fiduciary Duties: A growing line of thought seeks to define possessors of data as “data fiduciaries”, “information fiduciaries”, or “digital trustmediaries.” States are increasingly attracted to the use of these terms because (A) the law governing fiduciaries extends back to pre-Independence English law; and (B) the focus is on the relationship between the parties versus the rights of the parties.
Most people have never considered elevating Google, Apple, or Amazon to a higher fiduciary status but will do so if given the opportunity. Therefore, I predict companies will start advertising that they hold themselves to a fiduciary standard to attract customers before most state governments will create laws setting this standard.
Wearable AI: Although wearable AI is not new, its ability to interact with surroundings and, therefore, non-consenting bystanders/non-users raise significant privacy concerns. Unlike websites that ask questions about cookies, bystanders/non-users have no opportunity to consent to their image or certain information to be captured or caught by software and instantaneously analyzed by AI. It is unclear whether state governments will regulate the design process, product appearance, use of third person health and other information, and/or other means to protect the rights of everyday people.
I foresee states using an analogy to the Fourth Amendment to set boundaries on what private actors may obtain (and share with governmental entities) because this framework is already generally understood. I recommend observing the development of related law and court decisions around the how scent of cannabis permits or rejects enforcement actions by public and private actors.
David Seidman is the principal and founder of Seidman Law Group, LLC. He serves as outside general counsel for companies, which requires him to consider a diverse range of corporate, dispute resolution and avoidance, contract drafting and negotiation, and other issues. He can be reached at david@seidmanlawgroup.com or 312-399-7390.
This blog post is not legal advice. Please consult an experienced attorney to assist with your legal issues.
