Wearable recording technologies will prove enormously useful in many circumstances. Their use is not inherently incompatible with personal privacy. Nevertheless, they will make possible eavesdropping and common-law invasions of privacy on an unprecedented scale, to the point where these technologies will eventually force a redefinition of what the common law recognizes as private.
From a privacy standpoint, the biggest concern will be the devices that are always on, always recording. Because these are designed to keep recording even without conscious intervention by the user, it becomes virtually inevitable that the user will wear them into situations where he or she would not otherwise think to pull out a recording device, and where he or she would not record if they had been thinking about it. Here I am referring to private conversations and intimate surroundings. The fact that these devices record over their buffers every so often is irrelevant from a liability perspective; it is the act of recording that constitutes eavesdropping and/or intrusion into seclusion. Taking the next step and broadcasting that recording to third parties—which, again, at least some of these devices can be set to do with or without conscious intervention—risks additional liability for common law causes of action such as publication of private facts or, depending on the context, false light.
Although digital eyewear could be used to make surreptitious recordings, the prospect is not materially greater than with the smartphones and other mobile recording devices already on the market. As long as the onus is on the user to manually activate the recording feature, the devices are functionally equivalent to any other form of recording device. Indeed, head-worn recording devices actually have less capacity for surreptitious recording, since they are conspicuous and require the user to constantly look at the subject of the video recording and to be within earshot to hear the audio being recorded.
Privacy concerns can also be at least partially mitigated to the extent that the device in question makes it reasonably clear to third parties that it is recording. Eavesdropping and privacy rules generally cover surreptitious recordings, not those made with the knowledge of the person being recorded.
Over time, as wearable recording technology becomes more commonplace, the average person’s expectations—and, therefore, the law’s definition of a reasonable expectation—of privacy will change.