Category: Data privacy

Drone regulation : compared case study under US and Swiss laws !

INTRODUCTION

What is a drone and what does it do? Drones are those little guided quadcopters (also called FPV drones for ‘First Person View’) that we can find in the FNAC or in Xtreme sport videos on Youtube. They can be used for civil (private, commercial or humanitarian) or military purposes. We do not realize that they will invade our low sky and replace lots of current tools. As examples, drones can be used for:

Delivery services for food or commercial and private mail: With its Prime Air program, Amazon announced an estimated time of delivery of max 30 minutes. The Swiss e-commerce company Qoqa has taken the lead on Swiss market of delivery by drones with a test phase for the first time in Switzerland called FlypaQ.
Mapping and modelling like the Swiss company Pix4D with its mapping software that is able to create 3D modelling from 2D pictures.
Fun and hobbies, like personal video recording, sport even and cinema. Autonomous drones used during sport activities are very popular as shown by the French start-up Hexo+. In Hollywood, the FAA authorized film producers to use drones for film shooting. Cameramen are being replaced by these drones to record scenes in the air or for car chase, which offers original angles of view. Skyfall, the Wolf of Wall Street or Harry Potter and the secret chamber contain scenes that have been shot via such drones.
Observation, surveillance private or public, like locating or tracking people being pursued or surveillance of events by the police for Euro2016.
For humanitarian or rescue purposes especially in area difficult to access or for sending food, medics, give logistics support when a natural disaster happens, etc.
For military purposes, to attack specific targets, to defend, track or identify, spy or watch civil zones …

Ideas are not missing. From an economical point of view, there is a huge market growing up for the manufacturing, repair industry and for a bigger part software companies providing specialized software and mobile applications.

Disadvantages and risks. Potential often rhymes with risks. One can argue that not everyone owns a beautiful villa with a garden and a playground where the drone can land easily to deliver a new pair of shoes like in the sympathetic, but naive trailer of Prime Air drones of Amazon…How to deal with the lambda citizens living in buildings in the cities? Will there be landing points in the city to avoid a delivered package to be stolen? In addition, with 4K UHD cameras, video surveillance will cause problems related to privacy for individuals. The Swiss Federal Data Protection Commissioner (the Swiss Commissioner), published a note on this particular matter. Furthermore, as drones are either guided or autonomous flying vehicles with a certain weight, they may collide with flying objects (or animal) or with people on the ground. Liability issues will then occur as incident risks are real. This has already been demonstrated by the recent crash of a drone with a passenger aeroplane from the company British Airways just before landing at London Heathrow airport on April 18^th, 2016. From a noice perspective, it would be easy to imagine that a sky overloaded with drones would cause damage to the environment as well as to the residents. Animal welfare organizations will likely mobilize for the cause. Even worse, one can imagine drones to be hijacked, hacked, but also used for terrorist purposes. Maybe there is here a threat that shall not be underestimated…

Future will tell us.

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PART I

DRONE REGULATION IN THE USA – CASE STUDY

Producers of TV series are very creative to elaborate original and fun scenarios related to new technologies, especially when interpretation of the law remains uncertain. One of the latest episodes (S07e18) of the excellent TV show The Good Wife, created by Ridley Scott, is a story about a surveillance drone flying above a neighbourhood recording the area for potential crime that may be committed, which disturbs one of the residents. The litigation is divided in three acts like a case study for law students or cases for bar admission exam.

ACTE 1. The owner of the drone is a private organism that seeks to record acts of crime in the neighbourhood. The drone prototype flies several times a day and randomly over the houses, recording the streets and the houses, which means people that may be inside or outside their house. The fact is that on resident isn’t happy because, as a therapist, he practices at home and his patients are filmed from the air when they come for an appointment. The therapist takes legal action against the owner of the drone for violation of his private life, especially because the drone can film people that even appear through the windows of the house that have not given their consent. He also considers the drone responsible for a loss of patients and claim for compensation damages in an amount of USD 300,000 with a prohibition for the drone to fly again.

Arguments: The therapist alleges a violation of his private life based on the common law principle of “intrusion upon seclusion“, but loses the trial. Under first amendment of the US constitution, the right for the owner of the drone and the interest of all other neighbours to prevent acts of crimes by air surveillance wins against the privacy rights and the drone can fly!

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FLY AGAIN OVER MY PROPERTY AND I WILL SHOOT YOUR DRONE !

ACTE 2. The drone continues to fly over the houses and the drone camera record the therapist taking his shotgun and destroys the drone while flying over his property. This time, the owner of the drone takes legal action against the therapist and asks for compensatory damages to get reimbursed of the value of the drone, which is an USD 80,000 prototype. In addition, the owner claims for USD 10,000 punitive damages as well as a prohibition for the therapist to shoot any drone that would fly over the houses.

Arguments: The therapist alleges that he shot the drone because he felt threatened. He argues that the drone was shot to repel a potential attack. His counsellors plead the “Castle doctrine“, created in 1628, which is a common law principle for legitimate defence specific to the property. Under this doctrine, a landlord can repel an imminent attack when there is a legitimate threat of an intrusion in his property or the house. As the judge considers that this situation does not constitute a reasonable fear/threat, he requires the lawyers to prove it. Therefore, the counsellors call a drone expert, who presents to the Court a video with civil and military drones showing that it is almost impossible to make the difference between civil drones and combat drones. We can also see that drone technology allows to capture infrared or heat detection images and that some other drones can feature connected technologies that can hack a computer from the air and can steal the landlord’s personal data. In reference to the castle doctrine, the expert concludes that a drone can be an intruder in the house without physically penetrating it resulting in a violation of the therapist’s property and privacy.

Despite those efforts, the drone owner wins this second act. The recording shows that, at the moment the therapist shot the drone, it was not flying in a stationary mode, but rather flying away the propertym which means he was “retreating”. In such case, the castle doctrine is not applicable to retreating because it is strictly prohibited to shoot in the back…

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THE SKY IS ALSO MY PROPERTY, RIGHT?

ACTE 3. The final act intend to solve altitude issues related to unmanned aircraft systems. Basically, the question is to know whether the drone was still flying in the jurisdiction of the FAA (Federal Aviation Administration) when flying over the property of the therapist or not. As the drone was shot at a 200 feet altitude (60m), the Court must determine whether the federal rules of FAA still apply or if the case is governed by the rules of private property.

Arguments: The chief legal counsel of the FAA (from the enforcement and compliance division) is called to inform the Court whether it is legal or not to shoot an unmanned aircraft in this area of space. The legal counsel explains that between 0 and 500 feet (150m), there is a zone called “Classe G” that does not fall under the FAA’s jurisdiction. According to the therapist’s lawyers, it would be illegal to shoot a drone over 500 feet, but totally legal under.

The attorney of the owner of the drone, plead the US vs Causby case. In this case, military planes from the military airport where making a lot of noise in addition to flies over Mr Causby’s property. This situation caused a severe damage to Mr Causby’s, which forced him to abandon his business. Actually, the planes were flying at an altitude of 83 feet (25m) above the farm which led the chicken to jump over the wall killing themselves. This case refers to an old Roman law principle “Usque ad sideras et usque ad inferos” which inspired the common law principle of “from the depths to the heavens” related to vertical property. In Causby’s case, which he won, the limit of the vertical property was set at 83 feet. Thus, 200 feet (60m) is above 83 feet, which means the therapist was not entitled to shoot the drone that wasn’t flying over the space of his property. On that question, the lawyer of the FAA considers that between 83 and 500 feet, the regulation never said anything. The judge then considers that, in this case, the law is not adapted to technologies and rules in favour of the owner of the drone confirming Causby’s case.

This funny episode proves that, at least in the USA, one can play with the law and imagine scenarios that may be solved in such manner. The solution of such litigation may be based on very old case law related to airplanes frightening chicken, which may be inappropriate, but applicable to drones…

This first part only offers a summary of a TV show for further discussions. In no event shall this constitute a legal opinion under US law. For further information under US Law related to drones, this legal blog provides very detailed information and is only dedicated to the applicable regulation and rules of drones in the USA.

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PART II

DRONE REGULATION IN SWITZERLAND

What is the regulation in Switzerland and how would a Swiss Court rule this case ?

In Switzerland, unmanned aircrafts systems are regulated by the Federal Office of civil aviation (FOCA). It is governed by the Swiss Federal Act related to Aviation (LA) and the Federal Ordinance about special category aircrafts (OACS). “Air rules” also supplements this regulation with EU law related to the maximum flying altitude. Because of the developments of the civil drones market, FOCA recently amended its Ordinance and gave some guidance. From a legal perspective, drones are mostly remotely piloted aerial vehicles. They are de jure aircraft models, which corresponds to Small Unmanned aircraft Systems (sUAS) in the USA. Up to a weight of 30 kg these aerial vehicles can basically be operated without a special permission under the condition that the pilot keeps a permanent eye contact with the flying object (art. 17 OACS). Under those rules, drones are not allowed to fly above gatherings of people. Any exception to these principles requires an authorization from the FOCA, that can be required through this page, especially for drones that are operated without any eye contact.

For further information, visit the website of the FOCA or AirShoot suisse.

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HOW TO APPLY US CASES UNDER SWISS LAW ?

It seems interesting to wonder, from a theoretical point of view, how the fictive litigation of Ridley Scott would have turned if it had happened in Switzerland. Of course, US trials are extremely different from EU countries and are based on common law principles (Anglo-saxon influence) that differ a lot from civil law principles (Roman law influence) .

ACTE 1 – Private surveillance from the air. The first act basically raises two questions: how can a citizen use a drone for private surveillance and to what extend can the landlord claim for damages to the owner of the drone for loss of customers.

Arguments : Drone surveillance is related to both aviation rules and right to privacy or right to publicity (art. 28 of the Swiss civil Code and Data protection Act). With autonomous unmanned aircraft flying without constant visual eye contact from the pilot, the owner needs a permit from the FOCA. It is likely that for privacy rules or publicity rules, as well as security of the residents and noise pollution, no permit would be delivered for an autonomous, frequent and random fly over a residential neighbourhood. It would be a case by case question that may only be decided by the FOCA. A surveillance drone records images from the air on the private and public domain. Video surveillance on the public domain is not allowed by private individuals or companies without concluding an agreement with the local authorities. According to the Swiss Commissioner, such surveillance on the public domain is generally considered as disproportionate and prohibited, unless the area filmed on the public domain is very small. Because the rights to privacy of passers-by would be violated, such surveillance would probably be illegal as it is the role of the police to prevent acts of crimes and to have jurisdiction in this field.

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CONSENT THAT HITS THE NAIL ON THE HEAD

Regarding drone videosurveillance on the private domain, the Swiss Commissioner published a memento related to surveillance by private individuals. In summary, if a person cannot be identified, especially if faces or licence plates are blurred, the Data protection Act will not apply. Other questions would raise such as neighbourhood law in relation to excessive noise imissions (art. 684 al. 2 of the Swiss Civil Code). As the purpose of the surveillance is to know the author of the crime, the faces would not be blurred, and this images would be stored, used, published or even sent to the police. To be legal, every filmed person should consent to this recording (art. 13 Privacy Act) after having been informed (art. 4 al. 5 privacy Act) of the surveillance. It could be done through warning signs with detail information of the owner. In a recent decision 4A_576/2015 of March 29th, 2016, the Swiss Supreme Court considers that even inside a building, one single tenant can refuse to be filmed and can require the landlord to withdraw all the cameras of the building. In the Ridley Scott case, there may be other less invasive ways for the owner of the drone to prevent acts of crimes. The answer would certainly be different for surveillance of a commercial property with no passers-by and with high security risks.

Except neighbourhood issues, the liability of the owner of the drone for loss of customers is interesting. This is a case of civil liability in the form of an economical damage caused by a third party to the customers of a resident with a decline in turnover. There is no contract between the parties, which means that basic rules of tortious liability. Such trial would not be easy for the neighbour to win especially if the drone is entitled to fly. If it is not, the therapist must prove that civil liability rules have been violated according to article 41 of the Swiss Obligation Code. He would need to prove that (1) he has suffered a prejudice (decline of turnover), (2) in “natural and adequate causal relation” with the fly of the drone over the houses, (3) that the owner of the drone violated a specific article of the law (legal principles or articles such as violation of the Data Privacy Act) and (4) that the owner of the drone committed a fault (wisful misconduct or negligence). If these four conditions are met and if the therapist can quantify the amount to claim, he would be entitled to claim for damages…

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GIVE ME MY GUN SO THAT I CAN SHOOT THIS GODDAMN DRONE !

ACTE 2 – Shooting the drone. Weapons regulation is very different in Switzerland compared to the USA. Very far from the second Amendment of the US Constitution that give to every US citizen the right to wear a gun, Switzerland prohibits any acquisition, possession or use of automatic weapons (art. 5 al. 1 to 3 of the Swiss Federal Act related to weapons). The fact that one can buy a gun if he holds a licence (art. 8 LArm), does not mean that he would be allowed to have free use of it. If someone shot from his garden like the therapist did, the neighbours would very likely report such act by calling the police or to criminal authorities for fraud to the Swiss weapons Act, or to have taken a risk for the neighbours life or physical integrity in case the drone crashes. The issue would be similar if the therapist destroys the drone without any weapons resulting in a risky zone. It would depend on the weight, the height and the place where the drone could land or crash in case of an accident. If nobody is hurt and no risk was created, the owner of the drone could only claim for reimbursement of the drone if the drone was flying illegally over the therapist’s property.

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I SAY: THERE IS A DRONE FLYING OVER MY GRASS !

ACTE 3 – From the depths to the heavens. Switzerland abandoned since a long time the Roman Law principle under which a landlord can repel any threat or disturbance to one’s property from the hell to the heaven, which meant regardless of the depths or the height. Jurisprudence related to article 667 al. 1 CC explains that a landlord can master aerial space and prevent or stop any misconduct from a third party in this space if it undermines peaceful use of the property. However, the Swiss Supreme Court declares, in a first case, that property right shall continue at least up to a height of 10m to 40m corresponding to a cable car passing over a constructed house or building. The Court also declared that it is illegal to fly at a low altitude in the nearings of a private airport without consent of the landlord who may be entitled to oppose. Therefore, a landlord is entitled to protect and defend himself against damages to his property from third parties, for example against noise disturbance at an altitude of 108m, but not 600m…

Argumentation : Given the mentioned jurisprudence, it is certain that property rules apply up to 40m, likely up to 108m, and unlikely with a doubts between 108m and 600m. In the Ridley Scot story, the drone was flying at 60m (200 feet) above the property of the therapist. Therefore, the drone would still be in its property and, to the extend that the fly caused a prejudice to the therapist, who must have a legal interest to exercice its rights against the owner of the drone.

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SEE YOU IN A CRIMINAL COURT ! BUT REALLY, BASED ON WHAT ?

From a criminal point of view, one can advice to file a complaint to the Prosecutor (district attorney) or the police based on a violation of domicile (unlawful entry). In Switzerland, this offence (art. 186 of the Swiss Penal Code) would be difficult to apply as it related to humans, entering a garden closed with a fence. Thus, it is hard to fence off the sky…To know if an unmanned aircraft can imply to hold its owner as liable for for unlawful entry is questionable. Unmanned aircraft may cause injuries, but in this case no accident has occured. If someone is placed in a life-threatening position by the drone another offence could be questionable, but hardly applicable (art. 129 CP). Legitimate self-defence related to unlawful entry can apply. Under Article 15 CP, imminent attacks can be legally repelled, for example, against its property or if one’s individual freedom is violated. The therapist could also try to file a complaint for violation of the Swiss Data Protection Act (art. 34 et 35 LPD)…

CONCLUSION

If shooting a drone is forbidden in your country, well you may be forced to use on of these techniques :

Safe Harbor Framework invalidation : recommendations for Switzerland

I. Introduction

In a decision dated October 6th, 2015, (Case Max Schrems vs Facebook) the European Union Court of Justice invalidated the Safe Harbor Framework, which had permitted U.S. companies to comply with EU restrictions on the transfer of personal data outside the EU. As a non EU country, Switzerland concluded the “US-Swiss Safe Harbor Framework” (“Swiss SHF”) which is the equivalent to EU safe Harbor. This decision creates a real legal vacuum for around 4,500 companies which were relying on the Safe Harbor Framework to transfer data to the USA, which also applies in Switzerland.

Read this good article that summarizes the context of the decision, the legal issues and the proposed recommendations for multinational companies in EU.

II. Communication from the Swiss Commissioner

In his latest communication (in French), dated October 22nd, 2015, the Swiss Federal Data Protection and Information Commissioner considers that the Swiss SHF is not a sufficient legal basis any more and recommends to all Swiss companies to amend their contracts with US corporations to include provisions which guarantee an adequate level of data protection.

In addition, the Commissioner recommends to Swiss corporations, by January 2016, to

promptly and expressly inform all data subjects of a possible access to their data by US authorities; and
include provisions in their agreements to support data subjects in implementing adequate measures to ensure sufficient legal protection, execute corresponding procedures and accept any effective decision from an authority.

The Commissioner reminds that any individual is entitled to require a civil Court to examine the validity of each data transfer.

III. Conclusion

With this decision, data transfer to the USA is not illegal provided that companies complies with the above mentioned recommendations and update the provisions in their agreements with sufficient guarantees that measures are taken to ensure data security.

However, the United States have been clearly considered as a country where the level of security related to data is not adequate due to US regulations allowing mass-surveillance. This is a direct consequence of the Edward Snowden revelations. Therefore, as long as companies comply with their obligations to ensure adequate protection measures and inform individuals of a potential access of their data by the US authorities, data transfer shall remain valid.

In Europe, Article 29 Group (G29) has required EU institutions to renegotiate a new Safe Harbor Framework, compatible with EU laws, within 3 months from the decision of the European Court. Given the number of companies that are subject to this decision, this would be very interesting to follow.

Tails 1.0 : the amnesic and incognito live system

I. Tails 1.0

1.1 Version 1.0 released

It is official. Since the 29th of April 2014, the last baby of the Tor Project has ben released and is now available for download : Tails 1.0.

“Privacy for anyone anywhere”

Tails 1.0 is a live operating system that protects you against data gathering and increases your privacy on the Internet. It includes built-in open-source software and is bootable from a USB flash key or a DVD. This software has been used by Edward Snowden to evade the NSA and communicate with Glenn Greenwald in June 2013.

1.2 Specifications

Its little name: the amnesic incognito live system.

Like Tails 1.0 is an amnesic operating system since it doesn’t record your data and erase your traffic information when you close the program. It is also incognito because your Internet traffic is confidential, secure and your data encrypted (files, emails, chat, etc.).

As well as other existing software (Bouldows for example), Tails is a live operating system and works can be launched from a USB flash key, an SD card or a DVD. When installed, Tails includes lots of open-source software usable for the Internet (Tor browser, Firefox, etc.), data encryption tools (such as Truecrypt) or simply office use (Open Office, Gimp, etc.). Tails 1.0 is distributed under a GNU/GPL licence including Creative Commons logos or coming from thenounproject such as the USB logo of Tails 1.0.

The official website says that it helps you to :

use the Internet anonymously and circumvent censorship;
all connections to the Internet are forced to go through the Tor network;
leave no trace on the computer you are using unless you ask it explicitly;
use state-of-the-art cryptographic tools to encrypt your files, emails and instant messaging.

II. Tor Project & Cie

Tor Project regroups developpers that advocate for more open-source, security, anonymity, encrypted data and non-trackable, free software. In a few words non-commercial purpose and building software for confidentialiy and full privacy of the users on the Internet. Tor is an acronym for The Onion Router because of it refers to layers of encryption, nested like the layers of an onion, used to anonymize communication. As free software it enables online anonymity and censorship resistance. Tor directs Internet traffic through a free, worldwide, volunteer network consisting of more than five thousand relays to conceal a user’s location or usage from anyone conducting network surveillance or traffic analysis.

Parallel to Tor Project, Guardian Project is a good complementary resource for open-source Smartphone software for the public and developers.

Encrypted email applications, browser working with unique proxys or jumping ones, anonymous and encrypted live chat, coded messages sent though steganography principle, lots of software that are more accessible, more democratical and less elitist.

III. Tails : for who and for what use?

3.1 First test of Tails 1.0 (short overview)

When you start it, Tails seems to be accessible to anyone. You can be a Linux, Windows or Mac OS user, you will be guided step-by-step for installing it and use it. You lose a bit of your comfort zone by setting up the starting options and tools (such as keyboard, mouse, Wifi, admin password, etc.), but nothing really mad if know how to install an OS.

Tails desktop

Windows XP users will fatly find their way with an original option : “Windows camouflage” which is simply Tails OS with a Win XP theme.

Mac OS users will have to bite the bullet, because its less intuitive. For my first start, it was impossible to access to the local data on my HDD of my Macbook! In addition, please use a mouse because the use of the Mac touchpad rapidly becomes a nightmare. (Do not forget to press alt key to boot Tails).

Globally, Tails is rather intuitive, with lots of comfortable options such as a persistent volume where some data and new software can be saved as well as your settings (otherwise you’ll have to start all over again every time you start Tails) and can be updated. This option only works with a USB flash key, because a DVD cannot stock and save any more data on it. Connection to the Internet is easy and the jumping system method of Tor lets you surf on Facebook or Gmail without any problem. Even without VLC, Totem video player is rather good and read almost without any problem a .mkv video file including H264 for video codec and AAC for audio with multilingual audio track and subtitles.

At this stage, we can say that Tails 1.0 is intended for a broad audience, not only for those who loves penguins. You don’t know programming or writing code lines in a terminal, it is not a problem. Nevertheless, in my opinion Tails will not be accessible to everyone and lots of patience is needed for a dayly use, especially if you always have to configure the settings again at every starts. But obviously, it is the very principle of a live operating system …

3.2 Multipurpose use

Tails 1.0 includes an interesting list of open-source software such as Iceweasel for the Internet (GNU version of Firefox), Claws mail for emails, Pidgin for chatting, Open office for documents, Gimp (Photoshop’s equivalent) or TrueCrypt for data encryption. But, this Operating System is not foolproof. The user is warned about the limits of the program, especially for data encryption and deciding how to act with the computer and the information spread on social network or the Internet. Choosing a good password and change it from time to time is a must.

Tor Browser is not a standard Internet browser. It is from far slower than any other browser because of its functions. Blocking Ads, scripts, spy software, cookies, run Internet trough jumping proxys or data encryption require times, slow your network and block most websites that do not match with that settings. Most of e-commerce websites, social network or standard websites will not work if specific blocking options are enabled. Same script when you use Firefox with too many add-ons or plugins such as Ghostery, Adblock Plus, Donottrackme, etc.

Thus, running Tails is rather simple and all the built-in software let you have a daily use, but not for everyone or anyhow. Installing more software on your USB flash card and saving settings are an indication of the longevity of the project. Will it be enough for a very broad use? A wide professional use in private or administration sectors is something even more uncertain …

IV. Conclusion

Other projects like Guardian or Tor are necessary for helping the web community to protect user’s privacy and anonymity and other strong values of tomorrow’s Internet. Recent software developments allow to reach a wider and broader audience. In that context, the massive innovative efforts of the open-source developers must be welcomed. These projects encourage people and governments to promote, use or develop such software. The Swiss Federal Supreme Court is a great example with its project: “OpenJustitia” (only available in French or German).

However, few of these software are really used by a majority of the Internet users. First, these programs are not of public knowledge, and Internet users ofter do not know alternatives exists or do not want to know about. Second, for years these software have not been very “user friendly”. Problems of settings, installation or use may repell the average user motivated by more protection but do not have sufficient knowledge or do not understand the proposed tool. Finally, the very geek design may often rejects users in a media hype world where people think that because it’s nice, it’s better…

Visiting Tor and Guardian Projects websites may be very instructive. Lots of unknown software for PC, Mac OS or Android are available for download. Their use is often simpler as we could have thought and allows you to decrease Internet tracking (see my article about Panopticlic in french) and preserve anonymity.

What about you, have you or will test Tails 1.0 ?

Google Glass : pros or cons ?

Google Glass is very popular but do not receive general agreement. However this gadget has an incredible industrial value and some revolutionary concepts of use (e.g : e-Health, human interaction in other languages, etc.). However, it is, and will remain a cause of concern for consumer protection and privacy.

This article is intended for taking stock of the actual knowledge through Internet media and the legal situation in several countries that already initiated preventive prohibitions (like USA, UK, France). Finally, a brief outline of the legal issues in Swiss law will be approached.

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HIGHLY ANTICIPATED AND CONTROVERSIAL TECHNOLOGY

Fans of tech inventions really look forward buying Google Glass (hereinafter : “GG”) to see its real potential of use. In reference to the terms of a letter sent to Larry Page (CEO of Google) questioning him about the risks of GG on privacy, the features of these glasses could be shortly resumed as follows :

Google Glass includes an embedded camera, microphone and GPS, with access to the Internet

Speculations about their use, features, but also about the risks and the legal drifts of the GG are the daily bread of journalists, bloggers and Internet users. The question so far would be : “how far could go Google with this new gadget“. 8’000 Internet users have already worn them for the special amount of $ 1’500.- in several American towns. Wearing these glasses not only was a privilege. It was also a way of asking these lucky users to imagine and offer Google use suggestions. Instead of paying the users for their ideas, the Mountain view firm is reversing the situation into an original concept by making “paid crowdsourcing”, as well as the Ads systems of the GG called « Admented reality ».

While all fans are awaiting Google Glass, the technical possibilities should frighten other people for obvious privacy matters. This sober and futuristic computer, which only stands on the tip of the nose, working with augmented reality deserves to be paid attention to!

Technical specifications

« Google Goggles » was not a success. However Google Glass intends to be its evolution with a lot more advanced features. The introduction page of GG seems to show glasses with a camera, a microphone, an analyzing environment tool with voice or gesture control (e.g. : for the zoom) and would definitely be based on augmented reality technology.

Fields of application

GG potential could be really wide in several area of application as well as for private use or professional use. The question is : will this tool be efficient enough to stand a full day in order to overcome human weaknesses or vagueness? Here are some of the possibilities we could imagine.

Private or professional use

Private use won’t be so different as a Smartphone use. It’s just lighter, it works thanks to the voice control application and it can be used without taking your hands out of the pocket.
Professional use should really be challenging and exciting. Any kind of job that would require human work with an extreme precision (clock/watch making, micro technology, medicine, surgery, etc.) or real-time complementary informations could be improved with GG, such as zoom functions, real-time data analyzing functions, more camera angle views displayed on the glass, etc.

Medical applications / e-Health

During a Surgery, a doctor could have a real-time access to medical analysis, or could see different angles of view taken from several cameras. The zoom function could also be interesting in this case…
E-Health will be one the most lucrative but also promising field of activity in terms of innovation, thus for the industry, IP, IT, medical and legal drifts, especially in Switzerland. You might have read news about the Insight function which is built to identify people by their clothes. A medical application used on GG could be a great advantage during an attempt of rescue (e.g. : road accident, etc.). Imagine a rescue worker or an ambulance man identifying the victim of the accident with the GG and accessing immediately to his medical files (checking the blood type, important disease, allergies, reactions, drug or antibiotic resistance, etc.) and respect self-determination of the patients (according to an advance directive).

That kind of technology should be developed with lots of precautions and this means people must be identifiable at a very great probability to avoid serious medical errors. The technique and the power of these glasses will have to be increased a lot to reach that level of feature in order to have a daily professional use. Furthermore lots of tests and legal agreements would be necessary to integrate them in public health programs, which is not going to happen tomorrow.

Other person like visually impaired could be helped by GG to move in the streets (GPS navigation system, facial, objects or obstacles automatic recognition, etc.).

Other applications

There will be lots of challenge and opportunities for GG Video games, which could boost industry and friendly use of these glasses. A part from that, international federations of sport already thought about referee wearing those glasses during some match. Porno industry is obviously interested in developing features and Apps for the GG, such as the recent fake porn trailer available on the Internet. Some creative people also thought about wearing the GG during a job interview to analyze the candidate’s behavior and to seek candidate’s profile, past, network, and more… Lots of others ideas such as a nature walk, or getting his car back could also be imagined…

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PROHIBITION ALREADY STARTED

Fears about GG’s entry on the market

Despite lots of fun features and useful professional uses, people, but also organizations, worry about the entry of GG on the market. Fears are twofold.

One one side, there are legitimate worries about consumer and data protection for the active users of the GG. Risks for active users may be focused on targeted ads system (based on environment interaction) and direct or indirect surveillance “under Google glass” from the authorities or giant Internet firms.
On the other side, all the passive users of the GG (such as people in public places) will be concerned about their privacy. Passive users protection would be necessary to prevent “undesirable screenshots” from a pedestrian, as well as undue audio or video recordings. Not only the main thing is that people won’t know they would be recorded or pictured, but also that they won’t be able to agree or not to a recording.

When law comes before technology

GG won’t be tolerated in places where Smartphones, cameras or computer are already prohibited (cinema, banks, casinos, shows, hospitals, etc.). Nothing new under the sun.

Just the once will not hurt, and while GG are still in beta test, several public Organizations, private or little companies try to anticipate the take out of the store to prevent conflict situations. Ten privacy Organizations, including Hanspeter Thür, the Swiss Federal Data Protection and Information Commissioner (FDPIC), and the French IT and Freedom National Commission (CNIL), sent a letter to Larry Page about concern for privacy, and the collect and use of user’s data by Google.

Precautionary prohibitions in a few countries

In the United States of America, the Google Glass will be prohibited in Las Vegas, and in every Casino of the city. The Google glass will neither be allowed in Seatle at « 5 Point bar » which is the first bar to consider wearing GG as illegal before they are put on the market.
In United Kingdom, the spokesperson of the Britain Transport Minister said that GG will be banned for drivers because it would affect too much traffic behaviors even if their purpose is to help drivers with GPS functions.
West Virginia State and Delaware State (USA) are also working on a similar draft legislation to ban GG for drivers. Indeed, after the publication of an article on the website CNET entitled “The truth about driving under the influence of Google Glass“, public and political opinions have strongly reacted. As a result, these two government will probably establish rules to ban this gadget for drivers, but maybe for other use. A women already got ticketed for “distracted driving” because she was wearing the GG during driving.
In France, such glasses will automatically be banned for drivers according to article R412-6-2 of the French Road Code. This legislation provides that « Placing an operating device with a screen in the field of vision of the driver of a moving vehicle that do not constitute a driving or navigation aid is prohibited ».
A website entitled “Stop the Cyborg” offers to download a “Google Glass Ban” sign (pdf) for private places where the owner wants to ban it (bar, restaurant, etc). You can also check the list of ten places where Google Glass will be banned : on this website.

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WHAT IS THE SWISS LEGAL FRAMEWORK ?

Goggle Glass in the private or public context

If Google Glass product access the Swiss market, everyone should wear them without any problem in a private context. Private context is when you are with your family or friends. But, as soon as someone will wear the GG, everyone may be screenshot without knowing it and without prior consent. From a privacy perspective, this may become an issue should there be processing of (sensitive) personal data without prior notice or consent.

In a public place (bar, public transport, parc, demonstration, etc.), many sensitive issues will occur related to the use of GG, particularly regarding privacy, data protection and private sphere.

Data protection and privacy

Data gathering location and data processing

First of all, one of the most sensitive issue would be : What use will be made of all the data gathered by Google ? Even if connecting to Internet is a national issue (Internet provider with 3G and 4G and telecommunication providers), most of the information should automatically transit to Google servers to be stocked (at least temporary) which means in the USA. As can be seen with PRISM case, it is not clear whether the local data (in non-US countries) are not scanned by the NSA. But all our data may be if they are sent to USA to Google servers. Maintain control on all your data might possible only if they are kept in your country, encrypted and if they do not transit through the Internet Giants (Google, Yahoo, Facebook, etc.). Hard to tell before having tested these glasses !

Personal data and private sphere

As soon as a image or sound is recorded, this may cause legal problems. One the fundamental principle is the right to self-determination. Consent is the cornerstone of data protection and is a ground of justification which makes lawful a privacy intrusion (such as data gathering and processing). Thus, data gathering without prior consent is illegal. Every GG user sitting in a bus or a metro taking pictures or filming someone would automatically infringe the Swiss Federal Law on Data Protection (article 12 LPD) or to the Swiss Civil Code (article 28 CC).

Swiss Criminal Law (Penal Code) also punishes unauthorized audio recordings (see article 179^bis to 179^septiesCP). It can lead to a fine or prison.

The Insight Function of the GG may also be very intrusive in everyone’s life, even if the data are gathered from pictures found on the Internet and uploaded by the users themselves.

Intellectual property

Second sensitive theme : Intellectual Property, such as trademarks, copyright (pictures, music, movies, books, etc.). Since prohibition in cinemas will be obvious, the issue won’t be so easy with concerts, theaters or museums where controls are not systematic. Remember that according to Swiss Copyright Law provides legal private copying if the use is restricted to friends or family. Such right disappears when the source is illegal or if it is shared out of the private circle.

We can be sure that Google will set up copyright detection system, as it already exists with YouTube. We can trust it.

Google Glass in the context of driving

Since it seems to be debated in several countries, it may be interesting to examine this issue in Switzerland. As you would see further, Swiss legislation seems more precise than french legislation about this prohibition.

Phone Call during driving

In Switzerland, cell phones during driving are prohibited. More specifically, the Swiss Federal Road Traffic Act (RTA) provides that « the driver has to remain constantly in control of the vehicle in order to respect all the prudence obligations (article 31 par. 1 RTA). The driver would have to pay a CHF 100.- fine to have used his mobile without hands-free unit during the course » (article 3 al. 1 OAM).

In addition, the Federal Ordinance of the Trafic Road Act provides that : « the driver must pay attention to the road and to the traffic. He will avoid any activity which could make driving more difficult. He will also ensure that his attention would not be distracted, in particular not by a sound device nor by any communication or information device. It is established by the Federal Swiss Case Law (jurisprudence of the Swiss Supreme Court) that sending an SMS during driving is a severe infringement to Road Traffic Act (6B_666/2009) (article 90 par. 2 RTA) that may lead to a fine or a maximum three years jail sentence.

What about Google Glass ?

Driving any vehicle require a perfect attention and visual acuity. Google Glass meet several scope of vision with notifications on one of the glasses. In reference to above-mentioned Swiss legislation and jurisprudence, wearing GG will be illegal if it is harder to drive with, which it seems to be most likely possible. The Google Glass drivers could be receive a administrative penalty (withdrawal of the driving licence) and a penal sentence (fine or jail).

It would more secure to let the passenger wear them.

Criminal proceedings

Criminal proceedings and Surveillance legislation deserve also an attention. The Swiss Federal about Surveillance of the Correspondence through Postal services and Telecommunication (LSCPT in french) allow Authorities to follow and monitor both individuals and companies suspected of charged for criminal offenses. Would it be allowed for Authorities to connect to the GG or ask Google data to proceed to a retrospective surveillance?

If the Investigation Authorities can monitor and record communications through Skype, which is the case in Switzerland, it will be technically possible with the GG. The problem is not how to do it, it is about collaboration. Will Google collaborate with the Swiss Criminal Authorities if they ask for it to resolve criminal cases? International mutual legal assistance in criminal matters is often a fatal obstacle when criminal offenses are committed through IT and New Technologies because the process is too slow. Furthermore, data retaining duration is not long enough to let Authorities have access to data before its erased (even if the duration will be lengthen to 12 months, judgment 1B_128/2013 of the 8th of May 2013).

Other legislation, such as liability of Internet intermediaries, could enter into consideration.

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FINAL THOUGHTS

After these conceptual and legal considerations, my impressions, but also risks and abuses of those glasses are mixed. If we were living on Thomas Moore’s Island, Google Glass marketing wouldn’t have any bad consequence in a society composed of exemplary and model citizens or benevolent companies.

Are Google Glass and the future competitors of these glasses going to make a technological revolution? Will our daily habits and human interaction drastically change? Will 2014 be a progress year or we are going to go back 30 years later (1984)?

Swiss legislation seems to be well prepared for the arrival of Google Glass and do not really need to be modified for the moment since lots of situations may be solved with actual legal framework. Nevertheless, we don’t really know what to say before they enter into the Swiss market , which should not be before 2015 …

Stay tuned to see what will the USA authorities to when it will be on the market …

10 November 2013
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Gabriel Avigdor
Case law, Data privacy, Health law, Intellectual Property, Security, Technology