I Spy: Addressing the Privacy Implications of Live Streaming Technology and the Current Inadequacies of the Law

We live in a world where almost everything is recorded. With tiny, powerful cameras in our pockets — on our phones, laptops, and tablets — we can digitally capture almost every aspect of our lives if we choose to. Not only can we capture our lives, we can transmit these recordings virtually instantaneously for almost anyone to see, and the range of uses for these videos is practically limitless. With applications like Twitter’s Periscope, Snapchat, Instagram and Facebook used for everything from capturing and exposing criminal activity or police misconduct, to disseminating makeup tricks and techniques, to showing us lip-syncing in our cars, we are utilizing live streaming and posting to a much more frequent extent. Because of the ubiquitous nature of these powerful little cameras, some pundits have argued not only that there is a waning notion of an expectation to privacy in public places, but that the people don’t mind the potential for constant video surveillance that this represents. Others contest this idea and argue that just because we’ve accepted these technologies. This Note argues that live-streaming technology has implicated a number of important privacy rights for various parties, from the videographer/streamers themselves, to the Internet Service Providers, to inadvertent participants in a third party’s livestream. Part I will briefly discuss the types of streaming currently available, focusing on an explanation of live-streaming and the transition from archived content applications to live streaming applications, and then move on to examining the trajectory of law around live streaming technology. Additionally, Part I will discuss which parts of the body of both state and federal intellectual property and privacy laws could apply to live streaming, including a discussion of the Digital Millennium Copyright Act. Part II of this Note will use the frame established in Part I to analyze Facebook Live, comparing the live streaming service to more traditional broadcasting, and discussing the rights and liabilities that live-streamers, those who may inadvertently find themselves included in a live stream, and select third parties may have. Part III will conclude this Note by discussing potential policy implications and asking the question — where do we go from here?