You are sitting in a coffee shop with your laptop.
The person at the next table is wearing a pair of Meta Orion glasses, slim, stylish, indistinguishable from ordinary eyewear to a casual glance. Without turning their head, they can see your face, identify you, pull your LinkedIn profile, cross-reference your name with any public record that has been indexed, and, depending on what data brokers have compiled and what the glasses’ integrated AI can access, surface your neighborhood, your employer, your approximate income range, and a list of interests derived from your social media activity.
They are not doing anything illegal. They are not violating the Fourth Amendment. The Fourth Amendment protects you against unreasonable searches by the government. The person at the next table is not the government.
This is not a hypothetical. It is the current state of commercially available wearable technology, and it is producing something the founders could not have specifically anticipated but whose structural logic they had already named: a form of surveillance power so concentrated in private hands that constitutional protections, designed for a world where only governments could surveil at scale, no longer function as the founders intended them to.
The public has noticed. Meta’s smart glasses have earned the informal nickname “pervert glasses.” Owners report feeling unable to use them in public spaces because of the social hostility the devices attract. This self-regulation is a meaningful data point: ordinary citizens, without legislation, without courts, without a constitutional framework that covers this situation, are improvising a social norm to fill the gap that the formal rights architecture does not address.
The improvisation is not a solution. It is a signal.
The Wall
The Fourth Amendment was designed to stop general warrants, the colonial-era practice of issuing blanket authority to search any person or place an officer chose, without specifying what was being sought or why. The founders knew this abuse directly. Their homes had been entered, their papers examined, their persons detained under general warrant authority. They wrote the Fourth Amendment to end it.
The protection it provides is specific: the government cannot conduct unreasonable searches. Warrants must be issued on probable cause, must describe the place to be searched and the things to be seized. The citizen is protected against the state’s power to investigate, identify, and surveil without judicial authorization.
This protection ends precisely at the boundary between government and private actor.
A private person scanning your face in a public space is not conducting a “search” in the Fourth Amendment sense. There is no probable cause requirement, no warrant, no judicial oversight, because there is no constitutional obligation on a private actor that the Fourth Amendment imposes. The technology that allows face identification, cross-reference with commercial data brokers, and real-time profiling of any visible person is not regulated by the constitutional framework that constrains government surveillance, because that framework was designed for a world where only governments had the resources to surveil at scale.
That world no longer exists. The resources required to conduct continuous facial identification, behavioral tracking, and personal data aggregation cost $299 at retail. The power to surveil that once required a government apparatus now fits on someone’s face in a coffee shop.
What the Federal Farmer Predicted
The Federal Farmer, writing in October 1787, made the argument that has become the organizing insight of this category: rights on paper are not the same as rights in practice.
He was writing specifically about government power, his concern was that a federal government with vast, distant authority would find ways to work around the rights that a bill of rights formally protected. But the underlying logic extends beyond the government-citizen relationship he was analyzing.
The Federal Farmer’s argument was about the gap between formal protection and practical protection. A right is operative when there is a mechanism to enforce it, a court you can reach, standing to bring a claim, a remedy that provides real relief. When those mechanisms don’t function, the right exists on paper and not in practice.
The Fourth Amendment right to be free from unreasonable surveillance exists on paper. In practice, it does not protect you from the person at the next table in the coffee shop, because the constitutional wall stops at the government’s door. Private surveillance, however comprehensive, however capable of documenting your movements, associations, and personal characteristics, is outside the framework.
This is not a failure of the Fourth Amendment. It is a feature gap: the amendment addresses the surveillance threat that existed in 1791, when only governments had the capacity to surveil systematically. It does not address the surveillance threat that exists in 2026, when any individual with commercially available hardware can conduct what amounts to continuous personal investigation of any visible person without legal constraint.
The Federal Farmer asked for structural protections that would make rights real rather than nominal. He got a bill of rights. What he got was protection against the concentrated power of the 18th century. The concentrated surveillance power of the 21st century is in a different category, and currently outside the framework entirely.
The Private Tyranny Dimension
Centinel, the Pennsylvania Anti-Federalist who wrote the most pointed class analysis in the founding-era corpus, made a second argument that maps to this moment.
He warned that concentrated private power, once it reached sufficient scale, would produce coercive effects indistinguishable from governmental tyranny, not through law, not through formal authority, but through the practical power to determine who could participate in economic and social life on what terms. His primary concern was the concentration of financial power. The structural logic extends.
A surveillance capability that allows any private actor to identify, profile, and track any visible person has coercive potential that does not require government involvement. The person wearing the glasses does not need to be an agent of the state to produce chilling effects on behavior, to gather information that can be used for commercial, personal, or political purposes, or to create an environment in which people modify their public conduct because they cannot know whether they are being observed and profiled.
The “pervert glasses” social backlash, owners afraid to use the devices in public, is evidence that ordinary people intuitively understand the coercive potential even in the absence of any specific harm. They are self-policing a technology whose social effects they find threatening, in the absence of any legal framework that addresses those effects. This is social norm formation under pressure: the legal system has not caught up, so the public is improvising.
Social norm formation is a real accountability mechanism. It is also fragile, uneven, and likely to erode as the technology becomes more capable, more ubiquitous, and less obviously visible. The person who refuses to wear Meta glasses in a coffee shop out of social pressure becomes the person who wears them after the backlash fades, as the competitive advantage of the information they provide becomes more obvious and the social stigma diminishes.
Both Parties, One Direction
The bipartisan dimension of this story is less about party votes on specific legislation and more about the consistent direction of policy across administrations: both parties have allowed private surveillance capabilities to expand while producing no comprehensive legal framework for the private surveillance of citizens by other private actors.
Republicans have generally opposed privacy regulation as government overreach into technology markets. Democrats have proposed more comprehensive data privacy legislation but have been unable to pass it through Congress across multiple cycles. The result: a decade and a half of expanding biometric and behavioral surveillance capability with no federal framework governing its use in public spaces, its commercial exploitation, or its intersection with law enforcement (the police can often access data that private actors collected without the constitutional constraints that would apply to government collection).
The Obama administration championed a Consumer Privacy Bill of Rights that was never enacted. The Trump administration (first term) opposed comprehensive federal privacy legislation. The Biden administration launched privacy policy initiatives that did not produce major federal legislation. The second Trump administration has not prioritized the issue.
The technology has not waited. The gap between surveillance capability and legal framework has widened consistently regardless of which party held the relevant offices.
The Counter-Argument
The most important counter-argument is the one the market itself is making: social norms work.
The “pervert glasses” backlash is evidence that private actors, without legislation, without courts, without constitutional mandates, can impose significant social costs on surveillance technology that the public finds threatening. If the backlash is strong enough, it changes the behavior of the technology’s users, which changes what the technology is used for in practice.
This argument has real merit. Social norms have regulated behavior in public spaces for the entirety of human history. Staring is considered rude. Following strangers is socially unacceptable. Photography of private individuals without consent has social constraints even in the absence of legal ones. There is no obvious reason why facial identification technology should be different.
The counter to the counter is the Federal Farmer’s framework: social norms are not structural. They are fragile in the face of competitive pressure, technological normalization, and the diffuse, invisible nature of the surveillance capability as it becomes more integrated into ordinary devices. The person who feels uncomfortable wearing the glasses in public in 2026 may be wearing contact lenses with the same capability in 2030, at which point the backlash target is no longer visible. The norm against staring presupposes that staring is visible. The norm against scanning presupposes that scanning is detectable.
As the capability becomes invisible, the social norm loses its enforcement mechanism. What is left is the constitutional framework, which currently provides no protection.
The Gap the Founders Didn’t Anticipate
The Federal Farmer asked for structural protections that would make rights operative rather than nominal. He was writing about government power. The mechanism he identified, rights on paper that cannot be enforced in practice because the structural conditions for enforcement don’t exist, has a private-power analog that the founders could not have anticipated because the technology did not exist.
The Fourth Amendment wall is not a failure. It is a 1791 answer to a 1791 problem. The 2026 problem, private surveillance at individual scale, commercially available, legally unconstrained, is a different problem that the existing constitutional framework does not address.
What addressing it would require: a federal framework governing the commercial collection, retention, and use of biometric data in public spaces; legal standing for individuals to challenge surveillance that affects them; data broker regulations that close the commercial loop between facial identification hardware and personal profile databases; and a baseline understanding that the right to appear in public without being systematically identified and tracked is a right worth protecting regardless of whether the surveillance is conducted by the government.
None of that currently exists in federal law.
The citizen sitting in the coffee shop, who cannot know whether they are being scanned, profiled, or identified by the person at the next table, is experiencing the gap between the right on paper and the right in practice that the Federal Farmer described. The specific technology is new. The structural condition is not.