September 13, 2021

FILE UNDER “BE CAREFUL WHAT YOU ASK FOR: Facebook and Ray-Ban announced that they are rolling out “smart” Wayfarers that have a built in camera, with a tiny lens capable of recording, well, just about anywhere. Where have we seen this before?Oh yeah…Google tried it a while back, and it turned out to be a very very bad idea. “Lots of people are comparing it to the failed disaster that was Google Glass (which gave rise to the term “Glassholes”).”

I remember “glassholes” being punched in the face in more than a few bars, and as Techdirt pointed out, Facebook’s attempt at limiting their liability is, well, stupid:

“[T]hey seem to think that they can stop people from covering the LED light that goes on when you’re recording… by claiming that it’s a terms of service violation. That’s what a Facebook VP told Buzzfeed writer Katie Notopoulos, whose article on the whole Facebook glasses thing is absolutely worth reading. But this bit is just pure silliness and makes Facebook look ridiculous…”

But as always, the Law of Unintended Circumstances is going to bite more than a few Silicon Valley types right in the butt. Allow me to explain.

Many states (including California, Michigan and Florida) have “two-party consent” privacy laws that cover surreptitious recording, and usually the question will turn on “public interest” or “newsworthiness” (bye bye, Gawker) or whether instead the parties recorded without consent were in a place with a “reasonable expectation of privacy.” Now here’s where it gets interesting.

For decades, the corporate media and their “say yes to anything” lawyers had convinced most courts that when sued on these laws, the location and circumstances of recording offered no such reasonable expectation. For example, in Desnick v. American Broadcasting Companies, Inc., media lawyers convinced Seventh Circuit Judge Gerald Posner, after undercover cameras were used to expose a crooked doctor that:

“The test patients [wearing hidden cameras contrary to Illinois law] entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves). The activities of the offices were not disrupted […] Nor was there any “invasion of a person’s private space.”

Ok, we get it. Let’s fast forward to 2019. The Center for Medical Progress, an anti-abortion group, was determined to prove that Planned Parenthood was violating federal law and “selling” baby parts. So, like ABC News in Desnick, they sent in some people wired for video and sound, posing as potential purchasers of the “baby parts” to have lunch in a public restaurant to get Planned Parenthood staff to talk about financial arrangements. And talk they did. The undercover video shows Dr. Mary Gatter, the Planned Parenthood senior executive who infamously laughed “I want a Lamborghini” about payments for aborted fetal parts, again haggling over per-specimen pricing for livers, lungs, and brains.

Planned Parenthood went ballistic, and sued CMP in federal court in San Francisco, where the judge did a fair amount of mental gymnastics (“the cases […] consider contextual facts in addition to the fact that the recorded conversation was in a public and open space”) to hold that whether a conversation in a public restaurant was made with a “reasonable expectation of privacy” was a matter for a jury to decide. So off to a jury it went, where, unsurprisingly, the San Francisco jury found the CMP liable for more than $2 million in damages.

So what does all this have to do with GoogleGlass 2.0 and Facebook? This is where the Law of Unintended Consequences comes in. The corporate media put aside their “right to know” arguments used previously to record people surreptitiously, and sotto voce, cheered the result of the CMP case and a parallel criminal case pushed by Planned Parenthood. That’s all well and good, and frankly, I don’t care whether you are for or against abortion-on-demand. That’s your business.

But my business is safeguarding the public’s right to know about matters of public concern and seeing all the facts, especially regarding a 501(c)3 that essentially does its thing at the expense of the public fisc. The corporate media were eerily silent on the CMP case. When salacious headlines (and profit) can be had, corporate media has no problem at all weighing in, waving the flag and demanding the “right to know.” I have personally been involved in such “intervenor” motions, and have no shame in having done so. But the major corporate media and their law firms stayed silent here.

So the $64 question is: When some dope uploads a video made in a restaurant or bar  embarrassing another person, and yet more dopes at Buzzfeed, CNN, or The Washington Post republish that video without asking the most fundamental of questions, how can they get around — let alone dispute — the CMP opinion’s holding that it has to go to trial? The corporate media editors and their lawyers — generally smart people — missed the boat, and it seems sadly clear to me that their alleged vow to protect and defend the First Amendment is only contingent upon where in the political spectrum their bill-paying clients fall.

 

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