When Live-streaming Bumps Up Against Freedom of Speech and Privacy

A young boy captures the Black Lives Matter protest on his smartphone on July 7, 2016. Social media, and live-streaming in particular, have played a big role in calls for social justice recently. Karla Ann Cote/NurPhoto via Getty Images

Today, live-streaming services like Periscope or Facebook's live video feature give anyone with a smartphone the chance to broadcast unfolding events in real time over the Internet. Sometimes, that video is traumatic, such as when Diamond Reynolds broadcast live video shortly after police shot her fiancé Philando Castile. The tragic event joined many other troubling incidents involving police and the black community in the United States.

The combination of technological access and social problems can create friction. We've seen governments around the world react to this issue, often by attempting to restrict or cut off access to the Internet. But it's not always a clear-cut case of censorship. Sometimes, the government wants to prevent a situation from escalating.

Such a case happened recently in Randallstown, Maryland. Police were attempting to serve a 23-year-old woman named Korryn Gaines with an arrest warrant. Law enforcement officials told The New York Times that Gaines had received encouragement from people on social media to disobey the police. Gaines armed herself with a shotgun, and an hours-long standoff ensued. The police had contacted Facebook to deactivate Gaines' account during the incident, hoping to defuse a tense situation. Facebook complied with the request. Unfortunately, the scenario still ended in tragedy after a sequence of shots: Police fired a round at Gaines after she threatened to kill them, Gaines then fired multiple rounds at officers and the officers returned fire, killing Gaines.

So should authorities be allowed to restrict access to these platforms? Even in places like the United States, where free speech is a constitutional right, the answer isn't clear. For one thing, there are exceptions to the concept of freedom of speech. The U.S. Supreme Court has found that "fighting words" aren't protected by the First Amendment. That means if a person uses expression to incite a breach of the peace, that persons' speech isn't guaranteed by the Constitution.

So perhaps law enforcement shouldn't be allowed to interfere with a citizen's access to social media. But nothing is stopping a company like Facebook or Twitter from granting or restricting access according to the company's own stated policies.

Then there's the question of privacy. Should we have an expectation to privacy when cameras are ubiquitous, particularly when we're in a public space? In a Journalism and Mass Communication Quarterly paper titled "Up, Periscope: Mobile Streaming Video Technologies, Privacy in Public, and the Right to Record," researchers dive into the complicated mess.

Their conclusion? We'll see many groups (such as law enforcement) attempt to define the context of when it's appropriate or inappropriate to record or broadcast video. Courts will likely find these restrictions to be unconstitutional in the U.S., violating the First Amendment. And so it will ultimately fall to those providers, the platforms like Facebook and Periscope, to define terms of use clearly and to monitor usage. Considering the sheer number of people with access to those services, that's a Herculean task.

There is power in social media. It can give a voice to the disenfranchised, bringing their message to an audience that might otherwise never hear it. It can shed light onto injustice. It can allow bullies to target and harass victims. It's more than just a means of entertainment or communication. As such, the immediate future will likely be a tumultuous one as we try to find the best path to balance expression and respect for privacy.