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Privacy Brought into the 21st Century

MOVE OVER, CARPOOL KARAOKE

In what may be a sinister twist on the popular series with James Corden known as “Carpool Karaoke,” a driver for the ride share services Uber and Lyft recorded his passengers and live-streamed them to the site Twitch. Jason Garac, the driver, video and audio taped his passengers without their consent, and uploaded the recordings to Twitch, where viewers commented on the livestream, paying for the privilege via monthly subscriptions, tips or donations to Garac. When Uber and Lyft were informed of Garac’s activity, both companies ended their relationship with him. A spokesperson for Uber stated that Garac’s behavior did not comport with the company’s community standards.

ONE-PARTY CONSENT

Although what Garac did in taping his passengers might have been just cause for terminating his employment with Uber and Lyft, it probably was not illegal. Missouri, where Garac was live-streaming—is a one-party consent state, meaning that only one party’s consent to making an audio recording is necessary. The fact that Gargac was present and part of the recording provided the necessary one-party consent. Georgia is a one-party consent state as well; in Georgia, it is a crime to secretly record a phone call or in-person conversation “originating in any private place unless one party to the conversation consents.” O.C.G.A. 16-11-66. Video recordings are normally legal without consent so long as they are done in public spaces.

The issue becomes more complicated when the recording involves audio and video, and the space is not easily definable as public or private. In other words, the audio and visual recording of passengers riding in an Uber or Lyft without their consent may fall into the category of cases where the law has not caught up with technology. Add to the equation that Gargac was live streaming in order to make money, and the complications become ethical as well as legal.

REASONABLE EXPECTATION OF PRIVACY

Very often the inquiry into whether a recording—audio or video or the combination thereof—is legal looks at whether a person has a reasonable expectation of privacy. The reasonable expectation of privacy analysis encompasses location and parties; for example, was the activity recorded done in someone’s office with the door closed, or was it done in a hallway or lobby? Was the activity or conversation recorded in the presence of a third party or kept between the two individuals?

In the case of the live-streaming ride sharing driver Gargac, it could be argued that although an Uber car is not a private space in the same sense as someone’s home, it is also not a public space in the same sense as a street corner or park. What people have a legitimate expectation of privacy in has been a hotly debated topic, and a recent U.S. Supreme Court case discussed it at length. In Carpenter v. U.S., decided on June 22, 2018, the Court held that law enforcement would need a warrant to obtain cell tower records showing someone’s location over an extended period of time (exigent circumstances being an exception). By requiring probable cause, rather than the reasonable grounds standard currently used for obtaining cell phone information, the Court protected privacy rights. The decision was hailed by the ACLU, which argued on behalf of Carpenter, as a “truly historic vindication of Americans’ privacy rights in the digital age.” The fact that the phone records were in the hands of a third party did not matter, according to Chief Justice John Roberts, who wrote the decision for the majority.

The implications for digital personal information held by third parties is enormous. Emails and text messages, internet searches, and bank and credit card records could all come within this analysis. Before Carpenter, the fact that a third party had the information destroyed the reasonable expectation of privacy. Carpenter brings the reasonable expectation of privacy into the 21st century, with not only the content of messages and records being protected but its footprint as well.

CONTACT YOUR ATTORNEY

If you or someone you know has had your privacy rights violated, contact Dave Thomas at The Thomas Law Firm for a free evaluation of your legal rights.

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