Scholars have recently begun to contemplate the prospect of “pervasive computing,” with data-processing capacity and cues to digital data ubiquitously embedded in devices distributed throughout the human environment. Pervasive computing still lies in the future, but in the last half-decade we have begun to experience the reality of pervasive image capture.

As digital technology proliferates in camera phones, iPhones, and PDAs, almost any image we observe can be costlessly recorded, freely reproduced, and instantly transmitted worldwide. We live, relate, work, and decide in a world where image capture from life is routine, and captured images are part of ongoing discourse, both public and private. Capture of images has become an adjunct to memory and an accepted medium of connection and correspondence. Digitally captured memories, in turn, precipitate conflicts between governmental authority and free expression.

In the aftermath of the Iranian election during the summer of 2009, authorities sought to impede reporting on efforts to suppress opposition demonstrators. Yet cell phone videos disseminated over social-networking sites illuminated both official abuse and the scope of civil resistance. The most striking images, depicting the shooting death of Neda Agha-Soltan, were captured by nearby owners of cell phone cameras, e-mailed to a series of correspondents outside the country, posted on Facebook and YouTube, and then broadcast by conventional media the same day. In the United States, amid arrests of inconvenient photographers at the 2009 G-20 Summit in Pittsburgh, images of efforts to suppress demonstrations documented on amateur digital video followed a similar route to public cognizance.

At the boundary between public and private, conservative activists Hannah Giles and James O’Keefe impersonated a prostitute and a procurer seeking aid from local offices of the Association of Community Organization for Reform Now (ACORN) and surreptitiously captured images of the resulting interactions. The videos, initially posted on YouTube and a conservative website, rapidly spread to generate mainstream political controversy. ACORN brought suit claiming that the image capture constituted an invasion of privacy and a violation of state wiretapping statutes.

A similar dynamic unfolds in more personal contexts. The phenomenon of “sexting,” in which owners of digital cameras capture their own nude or revealing images and convey them by text message or e-mail—with the accompanying danger of retransmission—has become increasingly prevalent with ubiquitous ownership of cell phone cameras. Law enforcement authorities have taken alarm, and they have responded by invoking child pornography and obscenity statutes to threaten prosecution of underage sexters.

These clashes between image capture and attempted suppression are typical, but hardly exhaustive. In the next decade, the proliferation of digital visual capacity will regularly require legal decisionmakers to come to grips with the status of pervasive image capture under the First Amendment. This Article commences the task.

I begin by parsing the technological trends that have set the stage for pervasive image capture as a social practice and proceed to sketch the emerging ecology of visual memory and discourse. I then canvass legal developments that threaten to shadow the promise of the new medium and discuss their proper analysis under the First Amendment. I argue against claims of earlier analysts that the process of recording images constitutes unprotected action. In today’s world, personal image capture is part of a medium of expression entitled to First Amendment cognizance. I close with an initial account of the First Amendment protections of pervasive image capture.

Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record