Like so many other social media tools, these new apps are governed by simple (as in 6-8 bullet points) "rules" or "community guidelines" each accompanied by a relatively straightforward set of "terms or service." While it is certainly likely that these rules, guidelines and terms of service will get the same glancing treatment by Meerkat and Periscope app users as users give to other social media tools (i.e., little to none), the nature and capacity of these live streaming apps is such that users should, indeed, spend the 5-10 minutes it would take to read and understand the rules, guidelines and terms of service.
Why the caution? The ability to broadcast in real-time from handheld devices holds the prospect of being a cultural and political game-changer. While not yet subjected to challenge, these video streaming platforms are likely to be afforded the legal protections of § 230 of the Communications Decency Act (47 U.S.C. § 230), avoiding liability exposure as mere conduits of users' broadcasts. But what about the users? Traditional privacy torts are sure to apply. While many of the same ethical and legal issues of video streaming have been addressed previously in the context of YouTube and other streaming services, the "live" element of these recent app developments makes these issues more immediate and profound.
Here, at the advent of the 2015 Major League Baseball season, there's already been skirmishing about whether MLB and its valuable franchises intend to police spectators' live streaming behavior at games, and if so, how? Gone may be the days of "pay-per-view" for sports and concerts -- although we should anticipate a raft of intellectual property litigation around such challenges. Likewise, does live-streaming diminish the multi-billion dollar sports and entertainment broadcast contracts for events like, Olympic, professional and college sports?
The questions raised in the sports context are mirrored across society. Imagine the effect on news reporting that may (and likely, will) result with anyone capable of real-time streaming breaking news -- as it is happening. The grey-hairs reading this blog will remember how riveted we were to the live coverage of O.J. Simpson's leisurely Ford Bronco ride down a busy L.A. Freeway; the hostage crisis of the '72 Munich Olympics; Neil Armstrong's first steps on the moon; and, of course, more recently, the horrific collapse of the Twin Towers on 9-11. But, of course, those events were broadcast, in real-time, by media companies, subject to their own journalistic capabilities, training, and ethics guidelines. Arguably, no such guardrails exist for users of the live streaming apps. New live streaming app technology may caution users to exercise good judgment (Periscope: "be decent to one another"; Meerkat: "be kind"), but policing such expectations is difficult and unrealistic.
Think, too, of the potential consequences to law enforcement posed by the new technology. While events like the tragedies occurring recently in Ferguson, Missouri, New York City, Beavercreek, Ohio and elsewhere have prompted a societal re-examination of community/law enforcement interactions, they also have spawned a growing trend of body-cameras, cruiser cameras and the like as a means of checking over-aggressive policing, as well as protecting law enforcement from unfair or inaccurate and misleading allegations. And as we know from the extraordinary security camera footage of the Boston Marathon bombing, much of our public lives are subject to video scrutiny; but, again, not subject to selective, point-of-view real-time streaming. For law enforcement, Meerkat and Periscope present opportunity (all manner of live streaming of events and people may represent an investigative boon) as well as risk (might users' live broadcasting of some situations undermine or disclose active law enforcement work?). The prospect of live, amateur broadcasting of emergent or exigent situations presents a host of quandaries beyond the scope of this article. For further instance, how will courts police live streaming from high-profile trials? How will judges protect the identities of jurors in such proceedings? How will this new technology further affect the constitutional right to a fair trial? The judicial system already struggles with opening the courts in the social media age. This new development further complicates this task.
In an age of great tension between our desire to participate in the public forum and our contrary expectation of protecting our right to privacy, the advent of live streaming by you, your neighbor, or just as likely, a complete stranger implicates a further examination of those competing interests. Surely, these and many other questions are ones with which we will wrestle in the coming months and years, and the live streaming technology is a logical and predictable progression in the information and communications-centric world in which we live.
And while this article raises but a small fraction of the legal, practical and ethical challenges presented by these new apps, the consequences are not all a parade of horribles. Indeed, the myriad of magical and wondrous moments that may be captured and shared in real-time are also quite profound and infinite in number and variety: the birth of a new child in Hawaii witnessed live by a grandparent in Florida, or a proud father in military service in some foreign land; a wedding or a funeral shared with family or friends at too great a distance; an infirmed person enjoying a climb up Everest being broadcast by a climber, etc. Indeed, as the Periscope Community Guidelines state: the app is "about being in the moment, connected to a person and a place."
In sum, these new apps, and others like them that may follow, further empower each individual disposed to use these tools with the ability to further connect and share their unique perspective and point of view. Without passing judgment, I firmly believe that we must attempt to anticipate the potential risks, challenges and consequences of this present, emerging technology and address them.
As Periscope notes: "This immediacy encourages direct and unfiltered participation in a story as it's unfolding." The responsibility associated with such "direct and unfiltered participation" is, thus, of great moment and immediate, considerable (and likely, legal) consequence.