Marc Jonathan Blitz (Oklahoma City University) has posted The Right to Map (and Avoid Being Mapped): Reconceiving First Amendment Protection for Information Gathering in the Age of Google Earth (61 COLUM. SCI & TECH. L REV. 116 (2013)) on SSRN. Here is the abstract:
Modern electronic maps not only tell individuals where to find a city or street, they simulate the experience of traveling there: With the aid of Google’s "Street View" service, for example, individuals can peer at the details of streets, squares, and storefronts thousands of miles from where they stand – even in locations they have never visited, and may never visit at all. Such technological developments typically raise new legal challenges, and the one that has received the most attention from commentators is the challenge of protecting privacy. Legal commentators have worried that if mapmakers can record vast portions of our environment, and then allow individuals to observe any location they wish on the World Wide Web (or with other software applications), they will open up to visual observation areas and activities that people legitimately wish to keep obscure or unseen. Legislators in various United States jurisdictions have thus proposed bills that would place limits on what Google or other modern mapmakers can photograph – and legislators in other countries have already imposed such limits on Google Street View.
But if there are privacy and security interests that weigh in favor of restricting the image capture used in modern mapping services (and I argue in this essay that there are), are there also First Amendment or other liberty interests that cut the other way? If so, what is the nature of these constitutional liberty interests to create or access dynamic computerized maps, and how do we balance those interests against the privacy and security interests that might justify some restrictions on what mapping software can reveal about us? It is, after all, difficult to strike this legal balance in the proper way if we attend to only one side of it.
The First Amendment already protects photography and other kinds of artistic expression. Scholars such as Seth Kreimer have argued that it should recognize a broader right of "image capture" by individuals. Recent cases on video recording of police encounters, such as the Seventh Circuit’s decision in American Civil Liberties Union v. Alvarez, have found that, in some circumstances, individuals have a right to create a visual record of their encounters with government.
But should free speech not only protect image capture, but also protect the wide scale, automated image capture by modern-day mapmakers? Such automated image capture, after all, is in key respects very different from what a person does when she takes a photo with an eye to such qualities as the placement of objects within a frame, the arrangement of light and shadow in it and in relation to the objects, and the interplay of color and shape. In contrast to such conscious and careful decisions about what the photograph will look like and about the way a viewer might later understand it and react to it, the cameras on Google’s fleet of Street View trucks are simply sweeping in as much of the environment as possible – so that Google can stitch into a virtual three-dimensional landscape for viewers to explore. Even if the First Amendment protects individual photographers, it is not clear that it would also protect this wide-scale gathering of visual data.
I argue in this article that it should, and that this is so not simply when (and because) such image capture is a prelude to later expressive activity, but rather because the First Amendment should protect a right to receive (and capture) information from the surrounding environment. While the Supreme Court, in previous decisions, has indicated that the First Amendment only gives individuals a "right to receive information" when that information comes from a "willing speaker," I argue that this conclusion deserves reconsideration. First Amendment values, I argue, are offended not only when citizens are metaphorically gagged by the government, but also when they are blindfolded by it or forced to view the world only through government-imposed lenses. This principle that individuals should not be confined to a government-filtered view of the world, but should rather be able to explore it on their own – at least in ways that avoid imposing harms on others – applies not only to the observation of political activities (such as police encounters) but also to exploratory activity more generally. Some scholars have previously argued for such a right to autonomous exploration, but argued that (in order to keep it within reasonable limits) it should be understood as a right that journalists or those playing similar roles can invoke under the press clause, not a right that is available to citizens more generally. Using modern computer generated maps as an example, I argue for a broader conception of the right to receive information that allows individuals to explore and record their environment even when their focus is on matters of purely personal interest, rather than on issues of public concern, and even when their activities have no connection to journalism. I also argue that even if courts recognize that individuals have such a right to receive information about their environment, there is still room for government legislation that bars individuals or mapmaking companies from photographing or video recording their environment, but that any such legislation should have to survive a form of intermediate scrutiny in order to be permissible under the First Amendment.