Turning Yourself Into a Surveillance Camera May Be Perfectly Legal
A more plausible argument is that while displaying a photo may be protected, a prohibition on taking photos would not be a prohibition on "speech." This is because unlike displaying photos, when taking a picture one is not speaking to an audience—there is no message being conveyed. So does that mean we can prohibit the capture of images without the subject's consent?
Late last year I wrote about the Narrative Clip, a digital camera about the size of a postage stamp that clips to one's breast pocket or shirt collar and takes a photo every thirty seconds of whatever one is seeing. Since then I have received my Clip and I wear it on occasion to catalog my day. People's reaction to the fact I'm capturing every moment has been a mixed bag. Yet despite how people feel about it, my sousveillance is likely protected by the First Amendment.
Most people don't notice that you're wearing it. But when they do, their reaction is often negative. I found this out the same day I got my Clip in the mail.
A few hours after I first put it on, I went to a meeting with about six other coworkers. Someone noticed it right away and asked me what it was. I explained, and everyone laughed nervously. They joked a bit and let it go, chalking it up to the fact that I'm the tech policy guy, always trying new gizmos and poking the edges of convention.
A few minutes later, after the meeting had begun, another co-worker came in late and sat across from me. After a while she said, "What is that?" Everyone laughed nervously again and I explained. She wasn't having it and said, "OK, you have to turn that off."