The doctrine is being narrowed in the wrong place for this

Courts have spent several years chipping away at the idea that sharing information with a third party forfeits any claim to protection. Lawfare has been tracking that closely, including a recent piece arguing that the real fight over digital privacy is only starting after Chatrie. The direction of travel is toward requiring more of the government before it can reach records held by intermediaries.

Every one of those cases involves a corporate custodian standing between the individual and the state. That structure is what gives courts something to regulate. Remove it and the reasoning has nothing to attach to.

A recording of you is somebody else's property

Footage from a pair of glasses is held by the wearer. If an officer asks for it and the wearer says yes, no doctrine has been triggered, no warrant is needed, and no third party had to be compelled. The person in the footage is not a party to the exchange and generally never learns it happened.

This is not a new hole. It is the same hole that home camera networks opened, and it is being widened. A doorbell camera covers a fixed piece of a street. A wearable one goes into transit, workplaces, waiting rooms and living rooms, indoors where fixed cameras are not, at the eye level of whoever is talking to the wearer. What accumulates is a distributed archive of interior and interpersonal life that is legally trivial to request.

Protection has to attach earlier

Our position is that anything meaningful here has to constrain capture and retention rather than access, because access is the point at which the law has nothing left to work with. Limit what is kept and for how long, and the request reaches less.

We are not going to pretend that is clean. A rule restricting what people may do with recordings they lawfully made runs into speech and property interests that are not trivial, and the same footage that enables casual surveillance also documents abuses of power. Anyone proposing a limit here owes an answer to that, and we do not have a satisfying one.