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Could #FacebookLive change the way courts think about privacy law?

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“The people formerly known as the audience,” as Jay Rosen famously put it, have been busy the past few years, writes Jonathan Peters, CJR. They’ve recorded the police killings of Eric Garner in New York, Walter Scott in North Charleston, and Alton Sterling in Baton Rouge—raising serious questions about the role of race in the use of force, and fueling a national protest movement. Those videos were released after the fact, and now, of course, there’s heart-rending precedent for doing it in real time: Diamond Reynolds’s Facebook Live video of the moments after her boyfriend, Philando Castile, was shot by a Minnesota police officer. It was, as CJR’s David Uberti wrote, a remarkable act of citizen journalism.

And it was soon followed by the sniper ambush of police officers in downtown Dallas, where a bystander used his phone and Facebook Live to share what he was seeing, with cable news rebroadcasting the footage. Those real-time videos from Texas and Minnesota have each been viewed millions of times on Facebook alone, triggering a widespread sense that the use of livestreaming video on massive social platforms represents a critical moment in the way people make and share news.

Among the many questions raised by this moment: How will the rise of streaming mobile video, which won’t be restricted to cases like those above, challenge or complicate the law of privacy? How will we—lawmakers, courts, and the general public—respond? And aside from privacy, are there other potential sources of legal liability for streaming video users?

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That’s the subject of a recent article in Journalism & Mass Communication Quarterly by media law scholar Chip Stewart and digital media scholar Jeremy Littau. Though the article makes only a brief reference to citizen journalism and predates the launch of Facebook Live, it offers a useful framework for understanding many of the legal questions raised by mobile streaming video technologies, not only Facebook Live but also Meerkat, Periscope, and the like.

Stewart and Littau conclude that under current law, users of these services are unlikely in most circumstances to face any civil or criminal liability. But they also argue, persuasively, that mobile streaming video could become a catalyst for changes to privacy law and policy—as drones, to an extent, already have been. It’s impossible to predict where that conversation will go, but it may be upon us sooner rather than later, as the popularity of mobile streaming technologies continues to grow.

Drones as precedent?

Stewart and Littau argue that the complications for privacy law will come at the intersection of two areas: privacy in public and the right to record. To make that case, they trace the roots of privacy as an American legal concept to a famous 1890 article in the Harvard Law Review, by Louis Brandeis and Samuel Warren, arguing that people should have a general right to privacy.

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The legal principles that have developed around that right have, traditionally, distinguished information collection and dissemination. Services like Facebook Live—which collapse that distinction by allowing anyone with a smartphone to collect and disseminate concurrently, on a large scale—are arriving as courts have generally been narrowing what amounts to a violation of privacy.

Consider, for example, the claim of intrusion, which addresses information collection. It allows you to recover damages for a physical, electronic, or mechanical invasion of your seclusion that occurs without your consent and would be highly offensive to a reasonable person. But in most states, where courts wed your privacy rights to a reasonable expectation of privacy in a given situation, it’s difficult to win if you were in a public place during the alleged intrusion.

Under the First Amendment, too, state and federal courts have recognized strong protections for recording in public places, especially in cases involving police conduct. The protections are subject to time, place, and manner restrictions, meaning the right to record isn’t absolute, but clearly videos like the ones mentioned above—of Garner, Scott, Sterling, and Castile, as well as the Dallas shootout—are protected by the First Amendment because of their public settings and high levels of newsworthiness.

Stewart and Littau also note in the intrusion context that courts tend to look closely at whether the invasion in question would be “highly offensive to a reasonable person.” And, quoting the First Amendment scholar Rodney Smolla, the authors say that successful claims typically involve “unusually brazen insensitivity into a scene of grief, violence, or injury in which society is outraged by the distress caused to the victim or the victim’s family.”

You can imagine a livestream video that meets that threshold. But Stewart and Littau predict it will be increasingly difficult to establish offensiveness in an era of expanded surveillance and seemingly ubiquitous digital-information collection.

They make a similar point regarding the claim of public disclosure of private facts, which is just what it sounds like: a legal theory that allows you to recover damages if someone discloses information about you that lacks news value and whose disclosure would be offensive to a reasonable person. What kind of disclosures are truly offensive in a world of social sharing?

That’s the reason for thinking most livestream users face little risk from current privacy law. But, Stewart and Littau suggest, the very difficulty of winning an intrusion or private-facts claim arising from mobile streaming video may also prompt courts and legislators to rethink the law as the services come into wider use. They point to drones as an example.

As they became more affordable, drones drove privacy-law changes as states passed measures regarding unwanted aerial surveillance by unmanned aircraft. Mobile streaming video technologies have the potential to follow a similar path because, as Stewart and Littau say, they “break down the … lag between information collection and …distribution, making potential privacy violations instantaneous and unavoidable.” (Alternatively, they suggest, tech companies and users could address privacy concerns in extra-legal ways, e.g., through a service’s terms of use.)

Wiretap law and other issues

Of course, privacy is not the only area of law that may apply to mobile streaming video technologies. Stewart and Littau nod to some of the others, and I’ll do the same: You can’t trespass to capture a newsworthy event for Facebook Live, you can’t violate copyright law to stream Game of Thrones on Periscope, and you can’t jump the White House fence to make a point on Meerkat. Laws of general applicability do apply to livestreaming.Moreover, wiretap law is a notable potential source of liability for mobile streaming video, if the place of streaming is not public. For example, it’s unlawful to intercept and/or record in-person communications that enjoy a reasonable expectation of privacy (e.g., a man is receiving medical treatment in an ambulance with the doors closed, and you’re using a sound-amplifier to pick up his conversation with the EMT and stream it). The liability here would arise from the recording rather than the streaming, though the streaming could create private-facts liability.

But the main point here is that mobile streaming video technologies, although governed by the same laws as much of the rest of our media, have the potential “to be privacy law and policy catalysts,” as Stewart and Littau conclude. It won’t be long before legislators, judges, technologists, and the rest of us must confront more directly the legal and social implications of livestreaming—and the corresponding balance of the right to livestream and the right to be let alone.

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Greater protection, innovation and growth in the UK’s data sector as announced by the UK's Digital Secretary

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The Information Commissioner’s Office (ICO) is set for an overhaul to drive greater innovation and growth in the UK’s data sector and better protect the public from major data threats, under planned reforms announced by the Digital Secretary Oliver Dowden

Bridget Treacy, partner (UK privacy and cybersecurity practice), Hunton Andrews Kurth, said: “The UK government has signalled an ambitious vision for reforming the UK’s data protection laws, simplifying the current regime, reducing red tape for business and encouraging data-led innovation. After careful analysis, the government believes it can significantly improve the UK’s data privacy regime and how it works in practice, while retaining high standards of protection for individuals. Far from attempting to replace the current regime, this looks like an attempt to fine tune it, making it better able to serve the needs of all stakeholders and a better fit for the digital age. 

“Taking a fresh look at international data flows is long overdue, and here it will be interesting to see how creative the UK government is prepared to be. Global data flows are an inevitable part of global commerce and the Covid-19 pandemic highlighted the need for global collaboration in research and innovation. The UK government wants to enable trusted and responsible data flows, without reducing protection for individuals, and without needless red tape. A more agile, flexible, risk-based and outcomes-driven approach for determining adequacy may improve data protection overall. But here the government will need to take particular care, assuming it wishes to retain the UK’s adequacy status in the EU.

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“It appears that even the Information Commissioner’s Office will be the subject of reform, with proposals to modernize the governance structure of the data protection regulator, set clear objectives and to ensure greater transparency and accountability. The ICO is a highly respected data protection regulator, offering much admired global leadership on difficult issues. Care will be needed to ensure the ICO’s much vaunted and highly valued independence are not compromised by the proposed reforms.

“Overall, this looks like a thoughtful attempt to improve the UK’s existing data protection regime, not through radical change, but by building on and fine tuning the existing framework to make it a better fit for our digital age. Organizations should welcome the opportunity to contribute to this consultation.”

Bojana Bellamy, president of Hunton Andrews Kurth’s Centre for Information Policy Leadership (CIPL), a pre-eminent global information policy think tank located in Washington, DC, London and Brussels said: “The UK government vision is a positive development and is much needed to address the opportunities and challenges of our digital age. The plans should be welcomed in both the U.K. and in the EU. This is not about lowering the level of data protection or getting rid of GDPR, it is about making the law actually work in practice, more effectively and in a way that creates benefits for all – organisations using data, individuals, regulators and the UK society and economy. Laws and regulatory practices need to evolve and be agile just like the technologies they are trying to regulate. Countries that create the flexible and innovative regulatory regimes will be better placed to respond to the Fourth Industrial Revolution we are witnessing today.

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“There is no doubt that some aspects of the GDPR do not work well, and some areas are unhelpfully obscure. For example, the rules for data use in scientific and industrial research and innovation are cumbersome to locate and analyse, hindering use and sharing of data for these beneficial purposes; it is difficult to use personal data for training AI algorithms to avoid bias; individuals’ consent to data processing has been rendered meaningless through over-use; and international data flows have become mired in red tape.

“The UK government’s bold vision to simplify the current data protection regime, reduce red tape, put more onus on organisations to manage and use data responsibly, and to reinforce the pivotal role of the UK privacy regulator is the right way forward. It achieves both effective protection for individuals and their data and enables data driven innovation, growth and societal benefits. Other governments and countries should follow the UK lead.

“It is high time to revamp the rules for international data flows and the UK Government is absolutely right to focus on enabling trusted and responsible data flows. Businesses in all sectors will welcome a more seamless regime for data transfers and adequacy decisions in respect of more countries. Corporate data privacy officers divert too much resource to addressing the legal technicalities of data flows from the EU, especially in the aftermath of the EU Schrems II judgement. Consumers and businesses would be better served by organisations focusing on privacy by design, risk impact assessments and building comprehensive privacy management programmes fit for the new digital economy. 

“It is encouraging that the government recognizes the UK Information Commissioner’s Office as a key digital regulator in the UK, with a critical remit of protecting both individuals’ information rights and enabling responsible data driven innovation and growth in the UK. The ICO has been a progressive regulator and influencer in the global regulatory community. The ICO must be given the resources and tools to be strategic, innovative, engaging early on with organisations using data and encouraging and rewarding best practices and accountability.”

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New rules on open data and reuse of public sector information start to apply

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17 July marked the deadline for member states to transpose the revised Directive on open data and reuse of public sector information into national law. The updated rules will stimulate the development of innovative solutions such as mobility apps, increase transparency by opening the access to publicly funded research data, and support new technologies, including artificial intelligence. A Europe fit for the Digital Age Executive Vice President Margrethe Vestage said: “With our Data Strategy, we are defining a European approach to unlock the benefits of data. The new directive is key to make the vast and valuable pool of resources produced by public bodies available for reuse. Resources that have already been paid by the taxpayer. So the society and the economy can benefit from more transparency in the public sector and innovative products.”

Internal market Commissioner Thierry Breton said: “These rules on open data and reuse of public sector information will enable us to overcome the barriers that prevent the full re-use of public sector data, in particular for SMEs. The total direct economic value of these data is expected to quadruple from €52 billion in 2018 for the EU Member States and the UK to €194 billion in 2030. Increased business opportunities will benefit all EU citizens thanks to new services.”

The public sector produces, collects and disseminates data in many areas, for example geographical, legal, meteorological, political and educational data. The new rules, adopted in June 2019, ensure that more of this public sector information is easily available for re-use, thus generating value for the economy and society. They result from a review of the former Directive on the re-use of public sector information (PSI Directive). The new rules will bring the legislative framework up to date with recent advances in digital technologies and further stimulate digital innovation. More information is available online.  

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EU can be €2 trillion better off by 2030 if cross-border data transfers are secured

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DigitalEurope, the leading trade association representing digitally transforming industries in Europe and which has long list of corporate members including Facebook are calling for an overhaul of the General Data Protection Regulation (GDPR). A new study commissioned by the lobby shows that policy decisions on international data transfers now will have significant effects on growth and jobs across the whole European economy by 2030, impacting Europe’s Digital Decade goals.

Overall, Europe could be €2 trillion better off by the end of the Digital Decade if we reverse current trends and harness the power of international data transfers. This is roughly the size of the entire Italian economy any given year. The majority of the pain in our negative scenario would be self-inflicted (around 60%). The effects of the EU’s own policy on data transfers, under the GDPR and as part of the data strategy, outweigh those of restrictive measures taken by our major trade partners. All sectors and sizes of the economy are impacted across all Member States. Data-reliant sectors make up around half of EU GDP. In terms of exports, manufacturing is likely to be hit the hardest by restrictions on data flows. This is a sector where SMEs make up a quarter of all exports. "Europe stands at a crossroads. It can either set the right framework for the Digital Decade now and facilitate the international data flows that are vital to its economic success, or it can slowly follow its current trend and move towards data protectionism. Our study shows that we could be missing out on around €2 trillion worth of growth by 2030, the same size as the Italian economy. The growth of the digital economy and the success of European companies is dependent on the ability to transfer data. This is especially so when we note that already in 2024, 85 per cent of the world’s GDP growth is expected to come from outside the EU. We urge policymakers to use the GDPR data transfer mechanisms as it was intended, namely to facilitate – not to hinder – international data flows, and to work towards a rule-based agreement on data flows at the WTO." Cecilia Bonefeld-Dahl
Director General of DIGITALEUROPE
Read the full report here Policy recommendations
The EU should: Uphold the viability of GDPR transfer mechanisms, for example: standard contractual clauses, adequacy decisions Safeguard international data transfers in the data strategy Prioritise securing a deal on data flows as part of the WTO eCommerce negotiations
Key findings
In our negative scenario, which reflects our current path, Europe could miss out on: €1.3 trillion extra growth by 2030, the equivalent to the size of the Spanish economy; € 116 billion exports annually, the equivalent to Sweden’s exports outside the EU, or those of the ten smallest countries of the EU combined; and 3 million jobs. In our optimistic scenario, the EU stands to gain: €720 billion extra growth by 2030 or 0.6 per cent GDP per year; €60 billion exports per year, over half coming from manufacturing; and 700,000 jobs, many of which are highly skilled. The difference between these two scenarios is €2 trillion in terms of GDP for the EU economy by the end of the Digital Decade. The sector that stands to lose the most is manufacturing, suffering a loss of €60 billion in exports. Proportionately, media, culture, finance, ICT and most business services, such as consulting, stand to lose the most – about 10 per cent of their exports. However, these same sectors are those that stand to gain the most should we manage to change our current direction. A majority (around 60 per cent) of the EU’s export losses in the negative scenario come from an increase in its own restrictions rather than from third countries’ actions. Data localisation requirements could also hurt sectors that do not participate heavily in international trade, such as healthcare. Up to a quarter of inputs into the provision of healthcare consist of data-reliant products and services. In the major sectors affected, SMEs account for around a third (manufacturing) and two-thirds (services such as finance or culture) of turnover. Exports by data-reliant manufacturing SMEs in the EU are worth around €280 billion. In the negative scenario, exports from EU SMEs would fall by €14 billion, while in the growth scenario they would increase by €8 Data transfers will be worth at least €3 trillion to the EU economy by 2030. This is a conservative estimate because the model’s focus is international trade. Restrictions on internal data flows, e.g. internationally within the same company, mean this figure is likely much higher.
More information on the study
The study looks at two realistic scenarios, closely aligned with current policy debates. The first, ‘negative’ scenario (referred to throughout the study as the ‘challenge scenario’) takes into account current restrictive interpretations of the Schrems II ruling from the Court of Justice of the EU, whereby data transfer mechanisms under the GDPR are made largely unusable. It also takes into account an EU data strategy that places restrictions on the transfers of non-personal data abroad. Further afield, it considers a situation where major trade partners tighten restrictions on the flow of data, including through data localisation. The study identifies sectors in the EU that rely heavily on data, and calculates the impact of restrictions to cross-border transfers on the EU economy up to 2030. These digitising sectors, across a variety of industries and business sizes, including a large proportion of SMEs, make up half of EU GDP.
Read the full report here

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