*The views expressed in this article do not represent the views of Santa Clara University.
Credit: Xingye Jiang | Unsplash
Numerous altercations between rideshare passengers and drivers in the last few years have caused many Uber and Lyft drivers to install cameras in their cars to record passengers. For example, in Caban v. Golden, an Uber driver picked up an intoxicated Taco Bell executive. The driver asked the rider to exit the vehicle because the rider was too intoxicated to give directions. After he pulled the car over, the driver began filming a video of the executive who began to bash the head of the driver. While the passenger was subject to a civil suit and criminal punishment, the passenger filed a countersuit for $5 million, alleging the driver violated his privacy by recording him without permission.
Because many rideshare drivers have begun recording their passengers, numerous privacy lawsuits have been filed against drivers for recording without the passenger’s consent. However, this area of law is still developing, so many rideshare drivers who are using or are considering using a camera should be aware of their states’ laws (Note: Recent privacy case law also involves employers tracking employees' locations on their phones and mandating cameras that monitor employees).
Whether a state’s privacy laws require one-party or two-party consent, an uber driver may have to communicate to riders that they are being recorded. Currently, only eleven (11) states, including California, require the consent of both parties before recording. In effect, when a passenger enters an Uber driver’s vehicle with an actively recording camera, the Uber driver may communicate to the passenger that a camera is recording them. Otherwise, the driver may be subject to civil and criminal liability.
The California Invasion of Privacy Act (“CIPA”) governs privacy and camera usage in Uber and Lyft vehicles. The purpose of CIPA is to respond to increasing technological capabilities and “protect the right of privacy of the people” in California. CIPA § 632(a) imposes liability on “Every person who intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication . . .” (Emphasis added.) A conversation is deemed “confidential” under the Act if a rider has an objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan, 27 Cal. 4th 766, 768, 774-776 (2002).
A Rideshare driver’s primary defense against a privacy lawsuit is that the passenger consented to the recording. A passenger can consent to be recorded either explicitly or implicitly. Express consent would involve asking the rider if the driver can record and the rider affirmatively consenting to be recorded. Implied consent would involve communicating to the passenger (verbally or with a sign) that they are being recorded. Implied consent can be established where the rider is put on notice that they are being recorded, and the rider does not affirmatively reject being recorded.
Uber has taken several steps to ensure drivers comply with relevant state laws when filming passengers. For example, Uber informs drivers that certain states require consent to record the journey. Additionally, Uber provides drivers with links to register their cameras, allowing the company to view footage in the case of a hostile or antagonistic altercation. However, opinions from Uber drivers regarding being asked to register their cameras have been mixed.
Even if Uber drivers register their cameras to avoid privacy rights violations, Uber
drivers grant their passengers notice of recordings through stickers placed outside the vehicle.
The Ninth Circuit has declared retroactive consent, rather than prior consent, is insufficient to establish a defense under CIPA. If a rider has an objectively reasonable expectation that their conversation is not recorded, stickers placed outside the driver’s car can provide sufficient implicit consent. Thus, putting passengers on notice fosters a sense of safety, security, and can reduce legal liability for rideshare drivers.