February 2016 Podcast: Livestreaming the intersection between the right to privacy and the right to know

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By Student Press Law Center

Chip Stewart, a professor and associate dean at the Schieffer School of Journalism at Texas Christian, discusses his research on live streaming apps like Periscope and MeerKat and how they affect the right to privacy and the right to record. 

Frank LoMonte: The intersection between public’s right to know and public’s right to privacy has never been a hotter issue in state legislatures across the country. Lawmakers are considering a variety of bills directed at things like access to police body cams, or access to footage from drone cams flying over people’s private property. These legislative proposals bring into collision two values that we hold dear: the public’s right to know and the ability to keep one’s private life private. I’m Frank LoMonte, executive director of the Student Press Law Center, thanks for joining us for another edition of the SPLC’s monthly podcast.

We’re here to talk about the collusion of privacy rights and newsgathering rights, specifically as it involves recently introduced technology that enables people to live stream events. Our guest is Daxton “Chip” Stewart, Chip Stewart is a professor and associate dean at the Schieffer School of Journalism at Texas Christian University, TCU. We’re so delighted to have him here, Professor Stewart is an attorney and a longtime journalist who has been the head of the AEJMC’s law and policy division, he tweets prolifically about media law issues, his handle is @medialawprof and you can follow him there. We also encourage you to follow the SPLC which is just @SPLC on Twitter, and with questions about your rights as journalists to gather news in public spaces, you can visit the splc.org website and find a variety of resources for your own guidance and self study. Chip Stewart is the co-author of a recently-published paper along with Professor Jeremy Littau of Lehigh University, the title is Up Periscope: Mobile Streaming Video Technologies, Privacy in Public, and the Right to Record. This paper was recently published in the Journalism and Mass Communications Quarterly, a scholarly journal that is followed by people in the media law field, so we are delighted to have Professor Chip Stewart to address the rights of journalists when they are using technologies like Periscope to bring the public live news from the scene of a news event. Thanks so much for being here for this discussion, Chip.

Chip Stewart: Thanks for having me, Frank.

LoMonte: For those people who haven’t yet used one of these technologies — although it feels like we’ve been talking about Periscope for a long time, it was really just introduced and rolled out to the public in March 2015, so not even a year ago. Give a quick explanation of what are called MSVT technologies for folks who have not used them. 

Stewart: Right, and this is a term that Dr. Littau and I put together to try to think about not just those tools in particular, but what may be to come: so mobile streaming video technologies. And these are technologies that allow us by a smartphone to record and livestream from that device to a worldwide audience so anybody can — and it will be even better when integrated with twitter so your followers get a link saying you’re live streaming now — [use] technologies that allow you to take your phone and basically become a live broadcaster. And you see it with Facebook Live and other options now — options that have come up since we originally did the paper and we anticipated would be coming ahead. We wanted to be thinking about what that may mean for citizen journalists, anyone who may be committing acts of journalism.

LoMonte: Whenever there is a new innovation of newsgathering technology, policy makers look to laws governing the last innovation in technology and often were guided by that body of legal precedent that has built up around last year’s technology. So I’m wondering if you think that the courts are going to be guided by the law that involves things like television and radio broadcasting because out of all the things that are out there, I suppose you could most closely analogize this to something like a live shot from the scene of a news event that’s carried on television — something like the ubiquitous police chases that we see every time we turn on a television in Southern California. 

Stewart: Right, yes. Well it’s interesting how courts handle this because there actually is not a whole lot of jurisprudence out there or lawmaking even about live broadcasting as a separate thing. Usually it seems like the courts come at this and legislatures come at this from kind of a body of law area so this is one that usually winds up in the privacy context. They say oh the potential harm here is a privacy thing. It’s not a FCC thing. It’s an actual broadcasting issue and indecency, that’s an FCC thing, that’s a regulatory thing. When you actually talk about invading people’s privacy or potential harm to people, courts have, in the past, when it comes to live broadcasting, said oh this is like other privacy issues. The challenge with that is that the body of privacy law is really kind of a mess and it has been for certainly the last 15 years, but even the last 50-100 years.

What gets interesting on this, and what Dr. Littau and I did, is we went into what the technology is and then we started to say, well what currently existing buckets of law does this fall into? And we saw these two main areas, the tension you mentioned — this is potentially a privacy invasion for people walking down the street who did not expect they were going to be live broadcast around the world and we didn’t have the technological capability to do that easily before. So it’s about privacy in public — what we would think of as being in public. It’s also about the right to record in public. And because we didn’t have the technology before to do this very easily — it’s not like people walked around with live remote access broadcast satellites in the 1960s or even 1990s, this is a new issue because this technology has not presented these capabilities before.

LoMonte: Well, talk about the privacy issue a little more — normally we assume that when someone is walking down a street or enjoying an amusement park or a stroll on the beach or otherwise exposing themselves to be seen by other pedestrians, total strangers, then that person has waived any claim of privacy and the ability of someone to photograph or video-record their activities has not … depended on the size of the audience. If I happen to be unlucky enough that my sunbathing takes place in front of an ABC TV news camera, I could wind up on the evening news seen by millions of people, or I could wind up being in a family photograph that’s seen by five people. And in the eyes of privacy law, it hasn’t really mattered that much. Do we think it’s going to matter? Is this technology sufficiently game changing so that courts might be tempted to craft new and different privacy standards?

Stewart: Yes, I think it is. And to explain that a little bit, the difference we’re talking about here is just what you talked about, it’s about scope. That if in the past — and these damages were rare that people would have a really unfortunate photo of them taken in public. There’s a case in Alabama in the 1960s where a woman was at the county fair and her skirt blew up and a photographer snapped a photo of it and then they ran it in the newspaper the next day. And the Supreme Court of Alabama said that is a privacy violation. That is an intrusion upon her expectation of privacy, she should be able to collect damages for it. Even though she was in a public place and had no expectation of privacy there, they thought this was so damaging to her notions of privacy. But that’s an outlier. those cases are really rare. You get the somebody would have …. like a television camera would be there at the scene of an accident and they’d be overhearing conversations between the emergency personnel and the victim, the person who’d been injured. And a court said yes, that would be intrusive, it would probably be going too far to broadcast that sort of thing. But the technology wasn’t really there to allow these to spread at a mass level. 

And also I think you had more time to think. You had time to stop and think, are we really going to publish that photograph? Are we really going to allow that conversation between the EMT and the victim to go on air? I think ethics took care of a lot of that, it just didn’t happen. We don’t have that pause anymore. That right now, the communication technology is so instant, you could live stream and everyone could see it right now, and there’s no pause, there’s no 5 second delay. You don’t know what’s going to happen until you already captured the horrible thing and it’s already had the chance to spread and then be picked up and then be archived. I noticed this when i was playing around with Periscope for the first time. I was broadcasting my kid’s soccer game, my teenage daughter. I was saying, I’m playing around with technology, what could happen? Well, of course the internet’s a horrible place, and a girl gets kicked in the stomach with a ball and a bunch of hearts float up and people are giving all sorts of attention to it, and then they come back and give more hearts to it, and I thought this is awful. This is a horrible outcome to this! But I sent it out live, what was I going to do?

LoMonte: That is the distinction between the case you alluded to from an earlier generation involving the unfortunate woman whose skirt blows up at the county fair — that there are really two decision points there, there’s the decision point whether to snap your shutter and then there’s the decision that comes a half day later when the newsroom decides whether to publish that. But a live streaming point really removes that second decision point: the decision to photograph is the decision to publish and there is no ability to interpose any editorial judgement there. 

Stewart: Exactly, and what’s interesting is that legal scholars in the 1990s saw this coming. They said the intrusion tort is too weak, the publication of private facts is really too weak so they’re saying everything that’s public is really public, there’s no expectation of privacy. And they anticipated that we’d be getting into constant photography, constant recording of the public space, that we’re not going to have a remedy that people behave badly here if we don’t do something. Nobody did anything. The law stayed the same, the courts reviewed it the same way, and now that’s coming home to roost. The courts are going to have to address these where people say, I have been harmed by somebody’s bad action, in a way that everybody should see that nobody should see my worst day get broadcast around the world. And it’s going to be hard to dig out a remedy because the courts have been so resistant, so reluctant to grant any rights of privacy in public places.

LoMonte: Right. Well, one can also see — and this is a good point there for the practitioners who are listening to us today — that a good bit of the potential exposure could be how these videos are packaged and presented as much as in the content themselves. You think about a tort like false light where a person can be accurately filmed or accurately photographed in a truthful fashion but is framed in a deceptive or misleading fashion to suggest unflattering facts that are untrue. 

Stewart: I think it’s going to take some rethinking of the doctrine to privacy. Which really, the internet and other tools in the smartphone are making us do that anyway. Sometime the best remedy here might not be — and this is where we get into the conclusion of the paper that’s coming out — is that the remedy might be more giving people some more ability to take things down in the terms and conditions of MeerKat and Periscope rather than going to court over those things. It doesn’t do you a whole lot of good to keep something private or obscure so the whole world can’t see it if by bringing a lawsuit about it, you just bring more attention to it. A remedy of going to stronger terms and conditions and really take the market pushing MeerKat and Periscope to say, we need to listen to the people who may be harmed by this. And say you know if someone calls and says please take this down, it’s really hurtful and offensive to me, we will respond to that on a user’s rights thing, rather than a legal thing. That might be a better remedy here. The privacy law is such a clunky way to handle this kind of problem that I’m not sure it’s a great one. 

And what we haven’t talked about is that it already pushes up against something we already have, which is this right to record and photograph in public places. How could somebody claim privacy when I’m out there asserting a First Amendment right in public places that courts are gradually identifying more closely to the First Amendment.

LoMonte: Right, and we should mention, this is an especially timely conversation because of a very recent ruling that just came out in February 2016 from a U.S. district court in Pennsylvania. This is the Richard Fields case, and in the Richard Fields case, a federal judge deviated from what has been the growing consensus of the federal courts and found that the First Amendment did not protect the right to photograph police officers in a public space absent any indication that the person doing the photography was engaging in criticism or commentary in conjunction with the photography. In other words, the photography and the video-taking was not itself regarded as expressive conduct protected by the First Amendment. This is a deviation from what we have seen in other courts, there have been federal court rulings in Boston and Illinois appeals courts in recent years telling us that the federal courts recognize a heightened public interest in especially how police officers use their authority in public places. So this case undoubtedly will be appealed to the federal court circuit and we’ll see whether the Third Circuit falls in line with the Seventh and First Circuit precedents that have come in recent years. One of the things that was unique about the Richard Fields case was that Fields was not a journalist or even necessarily indicating an intent to broadcast the video that he was taking, it was actually not especially clear how he was going to use it, he’s an activist against police misconduct. I suspect that a journalist who went out into the field with the express purpose of gathering news as an adjunct of sharing it with a widespread public audience would be standing on much better First Amendment ground. 

Stewart: Yes, I would like to think so, but these cases are worrisome. That I guess in the Second Circuit and the Seventh Circuit where we look at some other decisions that have come down, Glik v. Cunniffe, I don’t think that was a journalist per se either, that was someone who wanted to record police, but even then the courts said: this is constitutionally-protected activity, at the least, recording police activity in public places is a First Amendment activity. We’ve seen courts go even further. This does get a bit messy because we start talking about what’s the difference between recording video, recording audio, or just photographing and I haven’t seen it very clearly whether some courts make that distinction too much or now. There’s some discussion about the ACLU case in the Seventh Circuit about the wiretapping law. A case I like to point to that hasn’t gotten a lot of attention is ex parte Thompson out of the Court of Criminal Appeals in Texas, that went beyond all of that and said taking photos in public places is a constitutionally-protected First Amendment right. It didn’t have anything to do with police officers, they said going in public places and taking photographs is a creative activity protected by the First Amendment. I don’t know if that logic would hold up on appeal, but if you haven’t read that decision, it’s a very strong one that comes out and establishes this creative activity. You see that in the background of ACLU v. Alvarez Seventh Circuit and Glick v. Cunniffe in the Second Circuit.

I think that’s how courts are going to move on this, that they’re going to say: the people have a right to do this because it’s creative activity. Criminalizing it is borderline absurd. If you’re in private places, I get that a bit more. You think of the Mitt Romney 47 percent speech which was recorded in a private gathering — I could see more liability, maybe criminal liability in that, where there is more of an expectation of privacy, even if it’s of extreme public importance and interest. But doing this in public places, it seems like we open up everyone with a smartphone to potential criminal liability for just doing normal smartphone things. It’s absurd, if we allow that, then we’re allowing selective prosecution for police enemies, which is a bad outcome for democracy.

LoMonte: We should certainly caution journalists that it is both a legal and potentially ethical issue to engage in this surreptitious recording or livestreaming certainly of events that are private in nature without disclosing that the video is taking place. One could be, depending on the state, charged with wiretapping or eavesdropping, which potentially carry criminal penalties, and there are real ethical considerations about not disclosing to those you are dealing with as a journalist that their activities are being taped, to say nothing of live streamed. One would certainly caution against doing that in a place where there is a genuine expectation of privacy. Not the street corner, not the sidewalk, but a controlled access event that would not be accessed by foot traffic.

Stewart: Yeah, and that’s where the livestreaming again creates an area of concern is that the few second or few minute space between when you record something and when you distribute it is gone.There are no ethical questions to be made, the technology forces the ethical decision upon you — when you’re doing it, it is live and going to be broadcast. And I worry that that may lead to some reactive legislation — people saying well, not only can you not photograph or record, you can’t livestream from here and they make the case on the ground of live streaming that this is why people can’t be trusted with technological devices so they can’t even record things. They can’t even get out the smartphone, that’s a crime.

LoMonte: Talk a little bit about the copyright issues that might arise as well. We’ve just seen a few hints of this in things like people using these live streaming applications to rebroadcast pay per view boxing matches or other paid subscription events. Talk about what you might envision as the copyright liability of somebody live streaming a ticketed or access controlled event.

Stewart: Yeah, I do think there is real liability issues there. No, I think you probably face more DMCA takedown than actual copyright infringement lawsuits on this sort of thing unless you’re a big purveyor. I’ll admit, my first widespread use of Periscope as a consumer was during the big boxing match last year, the Mayweather vs. Pacquiao fight. We were out camping out in the middle of nowhere, me and a bunch of other guys. We didn’t have any way to broadcast it so we were scrolling through a round here, a round there of the fight, because people were livestreaming it, and it was whackamole. A stream would come up, it would get shut down, a stream would come up, it would get shut down, because Periscope was trying to prevent that from happening, they don’t want to be caught up in copyright liability. 

For journalists and for citizens, I think the caution should be there, if you’re recording something that’s going to have a copyright in it. You think of live music at a concert, think of recording definitely something with a television or a movie screen, if you go to the Force Awakens and livestream that, that’s going to create some problems. Even if you’re there in a journalistic capacity, you don’t want to get Disney lawyers involved. Sometimes those lawyers don’t mess around — they don’t mess around the DMCA takedowns, they go ahead and file the lawsuit because the takedown isn’t going to be enough to discourage that type of behavior. I’d be cautious anytime there’s a performance of something, even if it’s live, because there’s going to be a copyright in the underlying music and the event itself and that sort of things. I wouldn’t worry so much about sports events if you’re out there live-recording because you can’t copyright the live event itself, however, I would be concerned if you got a ticket that said no live recording, no live broadcast, because they might throw you out of the stadium. We’ve seen different leagues like Major League Baseball saying, please do this and the NHL saying, please don’t do this or it may have been vice versa. Some encourage live streaming and some don’t want it at all. NCAA, I’m guessing, doesn’t want it at all. So it’s being cautious about using that as a substitute of showing what’s happening in the actual game. If you’re on the sidelines doing some sideline-reporting and broadcasting and catching the crowd that’s probably fine, but not as a substitute for play-by-play of the actual official broadcast.

LoMonte: Sure, that’s probably an important distinction. The more that it looks like your livestreaming is actually providing the event itself to people rather than providing the event as incidental to your own journalistic commentary, then the less likely it is to be protected and the more likely it is to be copyright infringement. There’s certainly a difference between attending a Bruce Springsteen concert where you’re standing outside the event and the sound happens to be audible in the background as you’re interviewing passersby, as opposed to holding up a camera and telecasting an entire Bruce Springsteen song from inside the event. The latter is certainly going to get you both ejected from the facility and potentially lead to copyright infringement liability.

Stewart: Exactly. And in some cases, the artists don’t care and in fact they encourage people to record and broadcast and distribute on their YouTube channel. I took my teenage daughter to see Pentatonix, which is an a capella group, and they’re very big on engagement with their audience. They were encouraging people to take photos now, record this, share it on our YouTube channel. So some artists might be fine with it. But you probably want to wait for them to say, ‘it’s okay to record this and we encourage you to share this’ before you do that.

LoMonte: Sure. In the spirit of sharing, we will post a link of Chip Stewart’s and Jeremy Littau’s excellent paper, Up Periscope: Mobile Streaming Video Technologies, Privacy in Public, and the Right to Record. I’d like to say thank you to Professor Chip Stewart, associate dean and professor at the Schieffer School at TCU, really appreciate your continuing contributions to the evolution of this legal field and encourage you both to follow Chip Stewart @medialawprof and also follow the Student Press Law Center, we’re at @SPLC, we have presences on Facebook, Instagram and now Snapchat (studentpresslaw). Our website is www.splc.org, you’ll find guides, tutorials, lessons and other information about your rights as student journalists. Thanks so much for listening, and we’ll talk to you next month.