Live-Stream Policy: The Upside Down of the Flipside
By: Mehrunisa Qayyum
Tags: YouTube, Live Streaming, Facebook, Twitch, Online Privacy

By Mehrunisa Qayyum, PITAPOLICY Consulting, LLC and Mark Nabong, Monotreme Consulting

“The live streaming industry is expected to be valued at 184.27 billion USD by 2027. (Tech Jury, 2020)” ~114 Live Streaming Statistics Every Broadcaster Should Know [2021 Update]

Twitch, Vimeo, YouTube, Facebook, and other live streaming platforms have policies that are incompletely protective of privacy rights. Is this a bug that threatens our private lives, or a necessary feature to protect our ability to hold bad behavior in check, whether from petty Homeowners Association dictators (HOA) or from actual dictators?

Cultural Understanding of that Private/Public Distinction

The public-private distinction is old, and a part of the common law in the US, UK, and other UK-derived legal systems. The street in front of your house is public, your living room is not. There are cases where a cop isn’t allowed to stand outside your window and peek in to see if you’re smoking weed (which used to be highly illegal, will eventually not be illegal, and for now is “kinda-sorta” illegal). Streaming and video companies like Twitch, TikTok, and YouTube are, in many ways, the “open window” into the private lives of their users, and of the people around their users. YouTube, for example, is missing policies that define what the rights of people who are seen in live stream video would be; content is only ID’ed AFTER a livestream IF the stream is archived. “Sorry, Mike, did I livestream you brushing your teeth in your Spongebob Pajamas? 10,000 people saw it and I didn’t archive it, so there is nothing you can do about it.” YouTube’s own published Policy says that they’ll only takedown if you can prove it was YOU in the video; unless you bought special, limited edition Spongebob Pajamas with your name embroidered on it, that may be a challenge. The fact remains, though, that your private home is now in the public space.

YouTube has provided the platform for a friend to punch a windowsill into your life (albeit temporarily) and there is nothing in the privacy policies that preserve the little invisible fence between “Public” and “Private” in your life. It’s not just YT and the huge number of products that Google creates (and later abandons, sniff sniff, I still miss you Google Reader), it’s also Facebook, Twitch, and a host of other streaming sites.

Expectations of Privacy in a Stream

The temptation is to side with privacy activists and push for broad definitions of what is private, in order to protect the largest number of people from unwanted intrusion of the World At Large into their lives. The flip side, though, is that allowing for a broad definition of “public space” instead of “private space” allows activists, social reformers, and everyday folks to record and capture the powerful and/or the dishonest and hold them to public accountability. A politician that is recorded while he says vile and disturbing statements shouldn’t be able to hide behind social media privacy policies, should he? Would Mitt Romney’s infamous “47%” statements have been taken down if they were posted on Instagram or Twitch for violating stringent privacy policies? This practice, all called “bird-dogging” (which is horrendous to attempt to translate into any other language, trust us) is a common tactic for citizen-activists and the sorts of groups that court citizen-activists.

Legal Ramifications of Blurring that Distinction

On the flipside, private venues often have both the de facto and de jure authority to restrict recording, live-streaming, etc., at their functions, and such venues really REALLY dislike it when activists “crash” their events by intentionally live-streaming them as a tactical act. In the same vein, private entities will cry foul when watchdogs (aka birddogs, or whatever species of dog we choose to call them) enter their space; the onus then falls on investigators to prove identities of the activists/gadflies. Alternatively, at least from a cosmic justice standpoint, MAGA insurrectionists live-streamed themselves damaging private property, public property, and actual human beings; these acts, hilariously, helped the FBI track them down, given their forfeiture of privacy as a trade off to their freedom of speech. Private venues, and private events in public venues, are an important potential source for journalism, even if that journalism is conducted by a non-card carrying citizen “reporter.” How is a live-streaming or video host to handle this?

There are two main responses to this issue that a platform can undertake, and should take, to deal with this: 1) First, the platform can communicate by hosting a series of virtual Townhalls, with the goals being to focus on creators’ understanding of linking private spaces to freedom of expression and to convey the proposed language and intent behind the language. This will provide an opportunity to preview any pushback regarding context as well as field any scenarios, challenges, or criticism that the Enforcement and Appeal Process Teams have not yet detected in their feedback. For example, since ‘bird-dogging’ occurs in private spaces, one possible policy is to allow the practice as long as other media are documented in attendance, such as in a Townhall setting. 2) the platform can install periodic reviews to rest the real-world effects of their policies. For example, after allowing a 2 week comment period submitted in writing, a platform could consider exploring any unique cases to test against proposed language, with Director’s input, and roll out updated policy clause across all social media channel. This can lead to a dialogue via email with creators and with outlets recommended by Public Relations and General Counsel teams.

Platforms have a unique, and historically unprecedented, access to the the blurred spaces between the private/public spheres, and a unique (and headache-causing) responsibility to craft policies that deal with those spaces, the creators that occupy those spaces, and the social effects of the recording and transmission of the same. Best to be prepared to craft a platform’s policies with intent, and with an eye to adjustments as the stoichiometric nature of social media usage will demand such changes.

Sources: Sarah Michele Ford (2011) RECONCEPTUALIZING THE PUBLIC/PRIVATE DISTINCTION IN THE AGE OF INFORMATION TECHNOLOGY, Information, Communication & Society, 14:4, 550–567, DOI: 10.1080/1369118X.2011.562220 [L.A. №29989. Supreme Court of California. June 20, 1973.] RICHARD CARL LORENZANA, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. [L.A. №29990. Supreme Court of California. June 20, 1973.] HUMBERTO SALAS, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. (Consolidated Cases.)

Notes: Mark is an attorney that focuses on renewable energy development, formerly of Tesla and the NRDC, and examples of his writing are found here and here. Mehr is a data science professional and recovering GAO employee, and examples of her writing can be found here and here.