The Invisible Gaze: How New Uses of Technology Are Changing the Rules of the Game When It Comes to Privacy and Data Protection

Until recently, privacy was a fairly simple matter: all you had to do was close the front door or draw the curtains to know that nobody was watching you. However, technology has now advanced so much that those physical boundaries have almost disappeared. We live in a world where anyone can be recording us continuously, either on audio or video, without us realising it.

This reality is particularly evident in two very different situations, which nevertheless share common risks:

• At home: It is becoming increasingly common to install cameras to look after elderly people who need assistance, children or pets.
• On the streets: Meta’s smart glasses (such as the Ray-Ban Meta) are already in circulation; they look like ordinary glasses but record everything the wearer sees and hears.

Where does this leave our right to privacy and not be under surveillance 24 hours a day? 

Below, we analyse how data protection authorities, based on the criteria of the Spanish Data Protection Agency (hereinafter ‘AEPD’), view this technology and what challenges lie ahead for Chile with its new data protection law.

Case 1: Home Care: When does a ‘domestic’ camera cross the line of legality?

It is entirely understandable that a family would want to install cameras in an elderly person’s home. It provides peace of mind to know whether they have fallen, taken their medication or need urgent help. But beware: just because a person is elderly or in need of care does not mean they lose their right to privacy. The home remains a person’s most private space.

The AEPD has published a very clear guide on this, breaking the issue down into two scenarios:

- ‘Family consent’ (domestic sphere)

If the cameras are used solely and exclusively for personal activities, data protection law does not apply. This scenario applies only where children or immediate family members have access to the footage, and it is used solely and exclusively for the care of the family member without being shared with anyone else.

Even so, the AEPD asks that three basic rules be observed:

• The elderly person must be aware of this and consent to it: provided their mental health permits, they must understand that there is a camera, what it is for and who will be viewing the footage. Furthermore, they have the right to say, ‘I don’t want to be filmed any more’.
• Smart settings: It is not a question of leaving a camera switched on and recording all day, all the time, if it is not necessary. It is much better to use systems that are only activated if they detect an emergency (such as a fall), to limit the areas being recorded and to delete the videos.
• The danger of audio: Recording conversations is far more intrusive than recording images. As a general rule, and in line with the principle of ‘privacy by default’, the microphone on cameras should be switched off.

b) When the Personal Data Protection Act applies (presence of carers and third parties)

The situation changes radically if a professional carer, healthcare staff, visitors or a domestic worker comes into the home to work. As soon as the camera routinely records people from outside the home, data protection law must be strictly complied with.

What does this mean in practice?

• Workers have a right to privacy and data protection; these rights do not cease to apply simply because the family wishes to monitor the elderly person.
• They must be informed in writing that cameras are in place.
• It is strictly forbidden to install cameras in places requiring enhanced privacy, such as bathrooms, or in the room of a live-in carer.
• Cameras must not be used for workplace surveillance.

Case 2: Meta’s smart glasses – surveillance goes mobile

The problem in this case is a lack of information and awareness. Meta’s smart glasses look like ordinary sunglasses or reading glasses, but they contain hidden cameras, microphones and an Artificial Intelligence (‘AI’) system.

This changes the picture for several reasons:

• Covert recordings: Anyone can record a video or livestream on public transport, in a café or on the beach without anyone around them realising. Although they have a small LED light that comes on when recording to ‘warn’ the wearer, there are already tutorials online showing how to cover it with a marker pen or a sticker.
• Artificial Intelligence using your data: Meta admits that the glasses’ AI analyses everything the user is looking at (places, text, people) to learn and train its algorithms. In other words, if you’re walking down the street and someone wearing these glasses looks at you, your data will be sent to Meta without your permission.
• The end of anonymity or instant identification: Meta has the technology to include facial recognition in its glasses; whilst this hasn’t been implemented yet, it could be. Put simply: someone could look at you in the street and, within seconds, see your name, your phone number, where you work and your social media profiles on their screen simply by cross-referencing your face with public data from the web – all without you even realising it.

3. The challenges. 

How is invisible technology regulated?

In the case of home care cameras, the central dilemma is monitoring compliance. Traditional monitoring tools are limited when dealing with private homes.

New technologies and their scope of impact

In the case of smart glasses, the dilemma lies in the user’s lack of awareness and in the potential uses and developments of the technology, which could seriously affect privacy in the face of technologies that are invisible or that go beyond the current scope of protection.

The dilemma of privacy notices

If a family installs cameras to care for a sick person, are they obliged to provide the carer with a written privacy notice? And even more complex: how will the future Data Protection Agency (ANPD) monitor compliance within private property to ensure that the carer’s rights are being respected?

The practical impossibility of seeking consent

In the face of constant recording, the concept of consent is in deep crisis. An elderly person with dementia or impaired cognitive faculties may lack the capacity to understand or sign a consent form regarding the processing of personal data, which raises the question of whether the family can have unlimited access to their privacy.

Furthermore, anyone walking through the Metro or a shopping centre wearing smart glasses has, in practice, no way of asking permission from the dozens of people who appear in their footage; worse still, in this scenario, the average member of the public will probably not even be aware that they are being recorded.

Where do we draw the line?

Chile is at a critical juncture with the creation of its new data protection framework. The major challenge facing the future Agency will be to resolve the grey areas surrounding these new forms of data processing and technologies.

To move forward, the national debate must focus on defining the limits of what is acceptable. Private employers will have to understand that a camera is an exceptional measure of last resort and not a method of continuous surveillance. Furthermore, this opens up a necessary discussion about public spaces: should we start restricting the use of smart glasses in places requiring a high degree of privacy or in educational settings, just as mobile phones are restricted in certain contexts?

At the end of the day, the fundamental question facing us as a society is: are we willing to sacrifice our day-to-day privacy, the spontaneity of a conversation at work or our peace and quiet at home, in exchange for what appears to be greater security or the simplification of daily tasks? If we do not set limits now, we run the risk of turning our lives into a permanent live stream.