La Liga, EULAs, and Privacy in Public Spaces
It was recently reported that Spanish soccer league La Liga took advantage of technology from users’ phones to detect bars that were streaming their games without a license. La Liga has now been fined $280,000 for disrespecting their clients privacy; they used the microphone as well as the phones’ GPS trackers to eavesdrop on the sound coming from users’ phones. Then, using sound detection tech similar to Shazam, they could identify locations where the game was being watched and check whether that location was a commercial establishment that had not paid to televise it.
10 million downloads of La Liga’s app made for a vast amount of data. A Spanish court ruled that La Liga’s terms and conditions didn’t clearly articulate the possible use it would make of users’ phones and therefore fined the league and ruled that the app must be taken down by June 30th.
Depending on the jurisdiction, there is some question regarding how binding EULA can be. Some lawyers cite British common law for precedent in the UK to suggest that contracts must in principle be negotiable: “End user license agreements – the rules that govern the use of software and even hardware which, overwhelmingly, has already been bought and paid for – violate that legal principle.” Contracts that lack this quality extend beyond EULAs, however. For example, parking validation tickets and signs in businesses attempting to limit the liability of management do not have room for negotiation. Instead, quick and non-negotiable contracts, such as those limiting liability of business for damage done to your car in a parking garage, are called “adhesion contracts”. Standards of reasonableness are often applied in circumstances where customers engage with businesses that attach these conditions to service. As Dan Ralls of “Ask a Lawyer” explains,
“Courts will refuse to uphold adhesion contracts that include unconscionable or unreasonable terms—you can’t have anything too crazy forced on you. They also have to be conspicuous when entered into—some courts have invalidated tiny adhesion contracts on the backs of parking tickets, though others have enforced them.”
Though legal action based on end-user license agreements, or EULAs, is rare, in 2015, some precedent was set when testers for an Xboxlive game Gears of War leaked information about the game. Because this behavior violated Microsoft’s EULA, the leakers were banned from using Xbox both on- and offline.
La Liga claims that their motive in coordinating audio and GPS data from their uses was to “protect clubs and their fans from fraud.” It purports to only attend to the relevant “sonic fingerprint” of the game audio and ignore more sensitive or private information its users’ microphones pick up.
A central doctrine in how we imagine privacy from a legal perspective is the distinction of zones where there isn’t a presumption of privacy. When people expect that their activities or possessions will remain private, a greater burden of justification must be met for violating their privacy, by monitoring or collecting information on their activities or interfering with their property. In the US, this value is articulated in the Fourth Amendment.
La Liga’s app was deemed unreasonable in its use of data from their users and did not make it clear through their EULA that this was a function the app would perform. As smartphones and similar technology become more prevalent, it will be interesting to note whether the use of data from microphones in public spaces remains out of bounds.