According to recent news accounts, a St. Louis, Missouri Uber driver set up hidden cameras in his car to secretly record and livestream riders. Patrons are unaware of his activity, and many of them find it offensive and regard it as a violation of their legal rights to privacy. But is it?
Under Missouri's eavesdropping statute (Mo. Rev. Stat. §542.400, et. seq.), a person is generally prohibited from recording a conversation only if that person is not a party to the conversation and only if there is a reasonable expectation of privacy, or as expressed by the statute, “a communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” Although a person riding in the back seat of a car should expect that a driver is able to overhear the conversation and could reveal it to others, he or she would not usually expect that the conversation is being recorded and livestreamed to the public. This could result in a finding that the recording constitutes an unlawful “interception” under the statute, but only if the driver is not considered a party to the conversation.
Missouri’s invasion of privacy statute (Mo. Rev. Stat. §562.252) could apply if the recording and dissemination includes nudity or partial nudity, but again the statute is predicated on the existence of a reasonable expectation of privacy.
A ride across the Mississippi River, however, would likely expose the driver to statutory liability. Illinois is an all-party consent state, meaning that recording is legal only if all parties to the conversation have given consent. The Illinois statute is applied liberally, as evidenced in a recent case where a high school student is being prosecuted for recording his principal on his cell phone in a school hallway.
However, these statutes are not the only concern. Missouri courts recognize torts of invasion of privacy by intrusion upon seclusion (essentially a “peeping Tom” statute) and public disclosure of private embarrassing facts.
An intrusion claim, like the eavesdropping statute, is dependent on the existence of a reasonable expectation of privacy and on an intrusion that a reasonable person would find highly offensive. An intrusion claim could be brought even if the recording is not broadcast, but this would likely fail given that Missouri is a one-party consent state.
Livestreaming the recording, however, creates greater risk of legal culpability, through the tort of public disclosure of private embarrassing facts. Such a claim is dependent upon widespread publicity being given to inherently private matters where the person claiming privacy has taken reasonable steps to keep the information private. Livestreaming should satisfy the widespread publicity requirement, and if the matter discussed or the activity taking place in the back of the vehicle is inherently private, such a claim could lie. The question is, however, has there been sufficient effort to maintain privacy when a matter is discussed in the back of a taxi or Uber?
Clearly, recording and broadcasting a person’s activities in a public place where the activity is generally subject to being heard and seen is lawful. Still, there are many things a person might do in public that he or she would hope would not be broadcast. The expectation is even greater in the semi-private setting of the back seat of a car.
In some cases, the Uber driver has advised patrons that the cameras are for security purposes only. Where this has occurred, and where the matters livestreamed are inherently private, a viable public disclosure claim becomes more likely, because there would seem to have been sufficient effort to maintain privacy. Indeed, in Y. G. v. Jewish Hospital of St. Louis, 795 S. W. 2d. (Mo. App. E. D. 1990), the Missouri court of appeals held that a claim for invasion of privacy could be asserted where a television station broadcast footage of the plaintiffs’ participation in a function commemorating the hospital’s in vitro fertilization program, where the plaintiffs alleged that they had kept their participation secret and advised both the hospital and the television station that they did not want that information disclosed.
With all that said, the answer to the question initially posed is that simply recording the Uber passengers is probably not unlawful. However, depending on the conversation and the nature of the activity in the back seat of the vehicle, a claim could exist if the matter recorded is inherently private and is livestreamed without consent. Where the person has been falsely advised that the camera is for security purposes only, the strength of such a claim is strengthened, but it still probably depends on whether the disclosure is of inherently private information.