The gap is being mapped
Tech Policy Press has been running the argument about capture of people who never agreed to it, including a piece this summer on who controls a digital likeness in the age of AI wearables. That work is mapping where the protections run out, and the map is worth having.
Our concern sits one step past it. Suppose the gap closes. Suppose a jurisdiction grants a clear right against having your face captured and processed without consent, with damages attached and a private route to court. Now ask what has to happen for that right to do any work.
Enforcement runs on awareness
Someone has to know. Every enforcement mechanism in this area, whether a complaint to a regulator or a claim in court, begins with a person who noticed something and decided to act. That is a reasonable design when the harm announces itself, and it is why data breach regimes have notification duties bolted on.
Wearable capture has the opposite property. The whole product thesis is that it does not interrupt anything. In our field sessions, across 1,564 Bluetooth devices logged, one arena of roughly seven thousand people produced fifteen detections. Nobody in that building knew, and those fifteen are only the ones broadcasting something we could see. A right that is exercised by the aggrieved party will be exercised almost never, and its non-use will be read as evidence that the problem was overstated.
The lever has to sit before the capture
We would put the obligations on the device and the venue rather than on the injured person's initiative. Requirements that bind at the moment of manufacture or the moment of entry do not depend on anybody noticing anything, which is the only property that matters here.
That is a harder ask politically than creating a cause of action, and we are not going to pretend otherwise. Constraining a legal consumer product before any harm is demonstrated is exactly the kind of regulation that draws the strongest opposition. It is also the only version that reaches the people the rule is for.