I agree that misjudging the reliability of evidence is not a new problem. What I suggested in the post, perhaps not as clearly as I’d hoped, is that there are unique problems when judges directly use such evidence – instead of rhetoric & logic & persuasion – in their opinions. (Thus, this isn’t the issue of interpretation of visual evidence, but rather literally embedding videos into opinions.)

As for TSS, I guess reading some of my co-bloggers, I thought it was a term of art dramatizing the loss of privacy associated with the increasing ability to watch & record (either literally or through an electronic record) strangers’ lives. Maybe Solove has a better, more precise, and less grand definition.

I don’t think I understand your argument. You express a fear that judges may misinterpret evidence, and will think that a modest amount of evidence is actually more evidence than they think. But isn’t that always an issue with any kind of fact-finding with any new kind of evidence, whether it’s DNA evidence, fingerprints, computer forensics, surveillance tapes, whether determined by judges or juries? Fact finders may think these forms of evidence mean a lot; on the other hand, judges may make the equally serious error of thinking they mean less than they do. I don’t see any reason to think judges or juries are systematically getting these things wrong.

As an aside, I have no idea what “the total surveillance society” is. I realize this kind of grand rhetoric is rather fashionable in some circles (see, e.g, Balkin & Levinson), but I never understand what it actually means.