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Twitch streamer’s recording of Uber passengers without consent resurfaces privacy concerns

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‘Creators are role models and leaders of the communities they create or foster’

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Jason JustSmurf Gargac Twitch
Jason “JustSmurf” Gargac
JustSmurf/YouTube

An Uber driver and in real life (IRL) streamer caught live-streaming passengers, sometimes inadvertently disclosing their full names and residential neighborhoods, is at the center of a resurfaced discussion over ethical streaming.

Streamer Jason Gargac recorded his passengers without their consent while working shifts as a Lyft and Uber driver, according to a new report from the St. Louis Post-Dispatch. He’s not the first IRL Twitch streamer to use a dashboard camera to record passengers, but the story has reignited a conversation over whether this is ethical. Lyft and Uber, as well as Twitch, have specific rules regarding whether or not drivers are allowed to record their passengers, but it all comes down to individual state laws.

The issue isn’t a legal one, so much as an ethical quandary. While there are laws from state to state governing this type of behavior, the moral line over capturing video from people without their consent is a little murkier.

What are the rules?

Lyft and Uber both have rules for how drivers should operate if they have dash cams or are recording video.

Lyft’s policy states:

Depending on local regulations, the use of dashboard cameras and other recording devices during rides may not be allowed. Some cities or states may require signage making known the presence of recording devices, while other regions may not allow recording devices at all.

Uber’s policy says something similar:

Uber allows driver-partners to install and use video cameras to record riders for purposes of safety.

Please note that local regulations may require individuals using recording equipment in vehicles to fully disclose to riders that they are being recorded in or around a vehicle and obtain consent.

Please check local regulations in your city to determine if these apply.

Everything comes back to state law. The United States has a federal law regarding filming people without their consent, but it’s a little more complex than just yes or no. Things get even more complicated when it’s a car owned and operated by a private citizen. Gargac told the St. Louis Post-Dispatch that he doesn’t consider people riding in another person’s car a private place — because it isn’t their property.

“I have sex in my bedroom,” Gargac said. “I don’t have sex in strangers’ cars. Because I have a reasonable expectation of privacy in the bedroom in my own house. I don’t have that in a stranger’s car.”

Missouri, where Gargac lives, operates on one-party consent laws, which state people “can record a phone call or conversation so long as you are a party to the conversation,” according to the Digital Media Law Project. Thirty-nine other states also have one-party consent laws regarding such recording activities.

Considering the conversation took place in Gargac’s car, and therefore in his vicinity, he is a member of the party. Since he consented to the video, it’s fine to record and stream, even if his passengers are unaware. California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington abide by two-party consent laws, which means that both parties must agree to being recorded.

These are the same rules that Twitch aligns itself with, but there is a small catch. Twitch’s IRL guidelines state that streamers must not stream footage that “requires operating video capture equipment and a moving vehicle simultaneously.” Streamers can’t hold cameras while operating a car, but they may use dash cams if they wish. Other rules within Twitch’s community guidelines say that “It is prohibited to share content that may reveal private personal information about individuals, or their private residence, without permission.”

“Sharing personally identifiable information (such as real name, location, or ID),” according to Twitch, is prohibited, as well as, “Broadcasting content obtained from filming or streaming in a manner that invades another’s privacy and/or takes place on private property, without permission.”

Gargac told the Post-Dispatch he can’t control everything that slips through, and that could mean personal information such as addresses. It’s up to people to clip those moments and report it to Twitch, however, otherwise no one’s really the wiser. Gargac has about 4,500 followers and, while not small, it’s not big enough to land his account under a constant microscope like other streamers.

This report was apparently enough to catch Twitch staff’s eye, though. Gargac’s Twitch account, which existed under the name JustSmurf, is no longer online. Gargac posted a screenshot in a Discord channel of an email sent to him from Twitch stating that he was suspended for harassment, according to St. Louis publication, Riverfront Times.

It’s an ethical conversation

Legalities only make up so much of the debate over whether streamers should broadcast their passengers without consent.

Concerns expressed by critics range from how Twitch viewers talk about passengers, many of whom are women, without their consent. There are examples in the Post-Dispatch’s story showcasing different viewers making vulgar or offensive comments about women in Gargac’s chat. Their comments won’t come across as too surprising for those aware of Twitch culture, but offer an intriguing debate regarding Twitch’s new community guidelines.

Twitch’s new guidelines, introduced earlier this year, asked streamers to be aware of their community’s conversations in Twitch chat. If crowds got out of hand, the guidelines continued, streamers should take some effort to quell those conversations. Although streamers couldn’t be held entirely accountable for their community’s actions, making an effort to step in and take control of the situation was impressed upon people. Twitch’s guidelines state:

Creators are role models and leaders of the communities they create or foster around them. Creators should consider the consequences of their statements and actions of their audiences; we ask that you make a good faith effort to quell any efforts from those in your community to harass others. Twitch should not be used to incite, encourage, promote, facilitate, or organize hateful conduct or harassment, whether on or off Twitch.

We will suspend communities, organizations, and individuals that do so.

Gargac’s community rating the attractiveness of women in his car, or making offensive comments about passengers, could contribute to “organize hateful conduct or harassment, whether on or off Twitch.”

It’s all part of a bigger issue. Lyft and Uber passengers are increasingly becoming public spectacles, according to Alex Rosenblat, a researcher at Data & Society, who has written about the issue before. Most Lyft and Uber passengers aren’t aware they’re being recorded, but it’s becoming more of a phenomenon. Rosenblat wrote in May 2017 that she’s seen an uptick in drivers posting photos and videos of passengers in public forums to shame them for numerous reasons.

“Passenger shaming is partly a consequence of the Uber/Lyft business model,” Rosenblat wrote. “Drivers can’t get reliable accountability from their employers or passengers, so they turn to tools like dash-cams. These are part of the externalized costs of the lean gig economy employment model.”

Rosenblat argued, however, that most Uber and Lyft drivers use their dash cams as a security measure. They aren’t streaming to YouTube or Twitch; the cameras act as a line of defense in case anything comes up against them.

“Drivers use dash-cam audio and video to hold passengers and Uber accountable for wages they’re owed, to justify their own actions, or to protest their innocence when they are wrongly accused of some ill,” Rosenblat wrote. “For example, one passenger scam is to start the trip, but cancel it mid-way, which effectively short-changes the driver. Although this can also be an accident — sometimes people press the wrong button — it’s common enough to be a well known problem that affects driver pay. The stakes of passenger accusations are high.

“When drivers face accusations, scams, or mistreatment from passengers, they risk being deactivated and losing access to their livelihood.”

Accountability is a big reason more Uber and Lyft drivers are installing dash cams in their cars, but this is a different story. Gargac was streaming directly to an audience of more than 4,000 — many of whom used his streams as a way to comment on strangers who didn’t consent to being recorded. The incident isn’t about ensuring that he could provide a defense against an unruly passenger.

A statement from Uber sent to Mashable highlights a notion that Gargac, who used his passengers for content, may have crossed a line.

“The troubling behavior in the videos is not in line with our Community Guidelines,” a spokesperson for Uber told Mashable. “The driver’s access to the app has been removed while we evaluate his partnership with Uber.”

What happens next?

Companies like YouTube and Twitch are facing new territory.

YouTube, which also offers livestreaming capabilities for its users, works within slightly different guidelines. YouTube’s cyberbullying and harassment rules state that people uploading videos must keep a couple of key rules in mind. “Maliciously recording someone without their consent” and “deliberately posting content in order to humiliate someone” is forbidden by YouTube. If the point of a stream is to have viewers make vulgar comments about passengers, it may violate YouTube’s community guidelines.

“Pause before you post,” YouTube’s guidelines state. “Think seriously about how you may be perceived online and do not post anything that may compromise your reputation or safety.”

The report on Gargac insinuates that he purposely misled customers about the camera’s purpose, strictly for content. Some of those passengers told the Post-Dispatch they felt taken advantage of, with one passenger stating, “I feel violated. I’m embarrassed.”

The ethical nature of recording people without their consent, and livestreaming those videos or editing them for YouTube, is a question that’s come up before. The Post-Dispatch reported, “Gargac said he started driving Uber and Lyft for the purpose of creating the livestream. Not the other way around.”

These situations are becoming more of a talking point, and Twitch’s decision to suspend Gargac for harassment speaks volumes. It will come as no surprise if Twitch and YouTube update their policies regarding streaming ride share journeys with customers who don’t consent in the wake of this story.

Polygon has reached out to YouTube for further comment.

Update: A Twitch representative told Polygon, “Under our Community Guidelines and Terms of Service, we do not allow people to share content that invades others’ privacy. If reported to us by the person whose privacy was invaded, we would take action under our Community Guidelines to remove the content.”