As technological advances are made in the design of smart sensors, the issue of privacy in public places, first discussed by Warren and Brandeis in 1890, becomes an important topic for law and policy. This paper examines issues of privacy that are impacted when an individual’s image is recorded by a video-based wearable computer, analyzed using facial recognition software, and uploaded to the internet. While the Constitutional basis of search and seizure law for individual’s placed under video surveillance is reviewed, a particular focus of the paper is on a less investigated but emerging area of concern, the video recording and facial recognition of individuals in public places by non-government actors. The paper presents an overview of the law as applied to the use of video systems for surveillance, reviews facial recognition techniques, and discusses cases arising under state law dealing with video recording of individuals in public places. The paper concludes with recommendations for the protection of privacy calling for the legislation enactment of an information privacy statute to cover the disclosure of private information for individuals filmed by wearable computers equipped with facial recognition software.
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