Earlier this year, a man was removed from a movie theatre and detained by Immigration and Customs Enforcement (“ICE”) and local police officers because he was wearing his Google Glass while watching the movie. Law enforcement officers believed he had been using the device to record the movie. According to the Glass owner, he was detained and interrogated for hours; ICE would only say that he had been “briefly interviewed” and “voluntarily” answered questions. The incident was resolved when–with the owner’s consent–an ICE officer plugged the Google Glass into a laptop and scrolled through the contents, finding no evidence that he had videotaped the movie.
The incident got a lot of attention online, mostly consisting of sympathy for the Glass owner and hostility towards the law enforcement officials who conducted the seizure and search. On the surface, this criticism seems warranted–the man’s seizure certainly appears to be illegal, and the “consent” he gave for the search while being illegally detained would certainly be invalid. Also, the officers’ tactics seemed to be a bit heavy-handed: there were somewhere between four and twelve law enforcement officers total; they allegedly berated the man with questions about his personal life and his employment; they refused to let his wife know where he was or what was happening, and so on. Undoubtedly, there were gentler (and probably more effective) ways of handling the situation.
But the legal question turns out to be a bit more complex upon further examination. Was the seizure in fact illegal? Law enforcement officers are allowed to arrest a person if they have probable cause to believe that he or she is committing a crime. If the man had been pointing a video camera at the screen, there would be no question that he could be seized. If he had been holding his smart phone up and pointing it at the screen, that would also likely constitute probable cause. At the time of this incident, Google Glass was a fairly new device, and it was extremely unusual for someone to outfit them with prescription lenses (as this man had in fact done). Thus, when the manager of the movie theater–and later, the ICE officers–saw a man wearing Google Glass to a movie, they had no reason to think that he was actually using them as prescription glasses. And although there were other possible reasons for him to be wearing the device during the movie (to surf the internet while watching the movie, or perhaps check his email during the slow scenes), the most reasonable assumption is that he was using Google Glass to record the movie. In this case, of course, the assumption was wrong, but that doesn’t mean that ICE didn’t have probable cause in the first place. Law enforcement officers have made legal arrests on far less evidence than they had in this case.
Thus, the interesting thing about the Google Glass incident is not that the law enforcement agents were acting beyond their legal powers (a situation which regrettably occurs in many situations, even outside the context of law enforcement), but that in fact the law probably did give them the right to act in this way. Most observers will say that this conclusion makes the Google Glass incident far more troubling; some will conclude that probable cause analysis should be changed or tweaked when devices such as this are involved. But it is useful to look at the situation from the law enforcement perspective: if ICE officers are tasked with detecting and preventing movie piracy, what other options did they have? They could have requested that the man remove his glasses–but he might have simply refused the request (and at any rate, a law enforcement officer’s only recourse when faced with someone who is likely committing a crime has to be more than asking the suspect to stop committing the crime). Unless movie theaters choose to ban Google Glass from all of their theaters, the device has given potential movie pirates an opportunity to surreptitiously record any movie while claiming that the device is equipped with prescription lenses. This may not bother many people, since movie piracy is not viewed as a particularly serious crime, but this is not the only context in which new technology can change the balance of power between law enforcement and criminals. The past few decades have given all of us–including criminals–the ability to record, transmit, and store data in ways that far outstrip the ability of law enforcement officers to investigate crime using traditional methods.