We should’ve seen this coming: What the live-streaming Uber driver debacle can teach us about privacy and consent
There are few things more thrilling to a scholar than when a reporter calls asking to talk about your research. In 2015, Jeremy Littau and I wrote an article for Journalism & Mass Communication Quarterly on some of the privacy challenges that would arrive with live-streaming technology, which at the time had just been launched by Meerkat and Periscope. In particular, what rights might someone have if they were live-streamed without their consent in a way that harmed them, and how might live-streaming have an effect on the right to photograph/record in public under the First Amendment?
So when Erin Heffernan of the St. Louis Post-Dispatch called, I was thrilled to talk to her, even about the dreadful circumstances. A driver for Uber and Lyft had been live-streaming his passengers without their knowledge, on a Twitch channel he had set up for the purpose. He charged subscribers $5 a month to tune in, and tricked out his car with lighting and cameras to make the whole thing work. It was, to use the proper legal terminology, super creepy. Here’s her story on the situation, which quickly attracted national attention because, indeed, people found it to be super creepy.
But was it illegal? Well, that’s a complicated question. Missouri is a one-party consent state, so it’s not technically a crime to record somebody without their permission as long as you are a party to that conversation or situation. And the driver was. The driver may have exposed himself to civil liability, but Missouri’s law on the “intrusion upon seclusion” tort is quite restrictive, requiring that the use of technology in recording be highly offensive to a reasonable person, and that what is revealed is of a private and sensitive nature. And even if the passengers could clear those hurdles in proving up their case, they’d be suing a ride-share driver with few assets.
Because both Uber and Lyft disclaim liability for acts like this by their drivers in their terms of service, collecting against them would be problematic. And even if a rider could show that those provisions were unconscionable and unenforceable, they wouldn’t be able to go to court, because the terms send disputes like this to arbitration, without the possibility of joining together in a class action.
All in all, the riders have a difficult road if they feel they have been harmed because the law just isn’t designed to handle privacy harms like this. As I pointed out to several reporters, and as Jeremy Littau and I noted in our article, legal scholars were noting problems with intrusion law as technology advanced in the 1990s, such as Mizzou law school dean Lyrissa Lidsky sounding alarms. But the law has not kept up, and now we are in a position that makes remedies for violations of privacy norms and expectations difficult.
Erin Heffernan wrote a good follow-up article about challenges with privacy law for the Post-Dispatch, with comments from me and law professor Mary Anne Franks.
In our article, Jeremy Littau and I said live-streaming could be a “privacy catalyst” of sorts, borrowing the language law professor Ryan Calo used when writing about drones a few years before. We can all agree that something isn’t right about an Uber driver live streaming passengers without their consent, but how should the law handle that? It will likely take legislation, and some Missouri legislators already seem interested in changing the one-party consent law in the state (though that comes with some issues about chilling legitimate acts of journalism).
These were the kinds of issues we foresaw a few years ago, and they were ultimately questions that tech companies were ill-prepared to grapple with as they quickly rolled out live-streaming technology. I’ve said all along, there’s something fundamentally different between the act of recording and uploading and live-streaming. Live-streaming removes the editorial pause, where the person making the recording has a chance to decide whether to share something or not. You can’t undo something after it has been broadcast live, and you may just capture someone’s worst moment and send it to the world without them knowing, wrecking their reputation in the process. It’s chilling, and it’s unfair — we shouldn’t have to expect to be “on” all the time just by virtue of walking outside of our home. But under the current “reasonable expectation of privacy” doctrine, the law doesn’t recognize harms when one might expect they could be photographed or recorded. It’s something that should change, though making that change without harming free speech protections and legitimate acts of journalism is a real challenge.
Anyhow, the Post-Dispatch article drew a ton of attention, which meant I got to talk to all kinds of publications about my research — the scholar’s dream! These included the ABC News podcast “Start Here”, where I talked to Brad Mielke. The segment is at about the 20:00 mark.
I also showed up in USA Today
And on NBC News
