During a privacy law seminar I took in the summer after 1L year, I wrote what became my very first published article. It had the ghastly-long title, “Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual’s Image over the Internet.” (I’ve since maintained a constant practice of short article titles, sometimes even one word). The article, published in the Santa Clara Law Review, attempted to grapple with a number of the legal issues that arose from the then-novel Google Street View. I distinctly remember sitting in the privacy class during the Summer of 2007, when somehow I came across this new Street View thing on my Macbook. (Yes, I was always multitasking in class). My first reaction was that Google had installed cameras at certain locations in San Francisco (the launch city) to get those 360-degree camera angles. Only later did I learn that Google had hired a fleet of cars to drive around cities to photograph everything.
That innovation spurred my curiosity, which led me to develop the concept of Omniveillance. No longer was surveillance limited by fixed geographic location (such as a closed-circuit camera mounted on a wall) or by opportunity cost (police can’t be everywhere). Now, this persistent surveillance could be used to quickly record entire cities in short periods of time. But this was only the beginning. I sketched out in the article what I envisioned as the future of omniveillance:
As distinguished from previous forms of public monitoring, this new form of surveillance will be omnipresent, as it can record vast areas of space over a very small period of time. It provides the users of this system with omniscience to know everything happening in a specific location at a specific time. Furthermore, this information will be indefinitely retained, and easily accessible. When future versions of this technology is [sic] properly implemented, it will be possible to enter a time, date, and location, and witness what happened at that moment as if you were there. It is a virtual time machine. In addition, using facial recognition technology, it will even be possible to search for a particular person’s location at any given recorded moment. Although Street View is currently only limited to urban metropolises, companies such as Everyscape seek to expand digital surveillance to rural locations such as ski-resorts, beaches, and other out-of-the-way places.124 Another friendly neighborhood surveillance provider called Earthmine is developing technology that can record all stores, restaurants, and other locations in public.125 No place would be safe from the unblinking eye of omniveillance.
Nearly, a decade, this form of wide-area surveillance has come to fruition. At Prawfs, Kevin Lapp writes about the City of Baltimore’s new aerial monitoring system:
Reports emerged this fall that the Baltimore Police Department had accepted private funding to secretly retain the services of Persistent Surveillance Systems and its wide area surveillance system to help it investigate crime. Persistent Surveillance Systems owns an airplane. On the belly of the plane is an array of cameras. At first light, a pilot flies the plane up to 10,000 feet and circles the city for hours. While it is circling the city, every second, the cameras take a still image of a 30 square mile area. The photos are instantly processed and downlinked to a command center on the ground. Operators on the ground can pull up the images, and from any specific moment, go backwards or forwards in time, second by second, and watch everything that the plane saw. Operators can follows cars and people fleeing a crime scene, and look backwards to see how they got there. The system’s developer, Ross McNutt, has called it “Google Earth with TiVo capability.”
Kevin discusses the validity of this practice under the Fourth Amendment, in light of Ciraolo, Riley, Kyllo, and Jones. My article deliberately avoided the Fourth Amendment implications of omniveillance, and focused only on the civil aspects.
I’ll close with a funny backstory. Omniveillance was originally my note for the George Mason Law Review. As history will tell you, GMULR did not publish it. I distinctly remember the editors telling me that they thought my note was unrealistic and far-fetched. One editor in particular scoffed at my idea, saying the type of computational power needed to record an entire city was impossible. Frustrated, I decided to submit the article on Expresso. Very few journals even accepted student submissions. I didn’t have high expectations. Much to my surprise, I received (almost) immediately an offer from the La Verne Law Review, followed shortly by the Richmond Journal of Law & Technology. A few days later, I received an offer from the Ohio Northern Law Review. After sitting on that offer for about two weeks, and nothing else popped, I accepted it, and withdrew all of my other submissions. Two days later, the Santa Clara Law Review made me an offer. With a very early experience in the law review game, I asked Ohio Northern if they would release me, but understood if they didn’t. The EIC agreed, and wrote back “Professionally, I am disappointed that you will not be publishing with us, but personally, I am thrilled that you have been afforded the opportunity to publish with a journal that speaks to your targeted audience. This is truly a great achievement in your young publishing career. ” The publication process with Santa Clara went quite well, and my piece was selected as the lead article. The EIC sent me a nice email explaining that he was proud his journal accepts student submissions–most don’t–pointing to my article as proof. At the time, I could have never known that GMULR turning me down was such a valuable experience–and in hindsight, it helped pave the way for my future publication record.