Ex Taco Bell Exec Sues Uber Driver Over Surveillance Video

Author: John Honovich, Published on Jan 18, 2016

This is a fascinating case about the role and limits of video surveillance, beyond the absurdity of the actual event itself. Generally, in the US, surveillance video is 'fair game' but this case raises questions about exceptions and gray areas.

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Comments (34)

privacy issues aside the driver was violently assaulted by the passenger... i look forward to the updates on this case...

There's no real debate on the assault. Even the passenger has publicly apologized.

The issue is now, can the video / audio recording be publicly used?

The Right to Bear Arms really helped there...

The Right to Bear Arms really helped there...

Was no match for the Bare Right Arm.

Looks like a good reason for adequate signage. I'm not sure that the passenger has any more expectation of privacy here than if he walked into a retail store and assaulted a check out clerk.

"I'm not sure that the passenger has any more expectation of privacy here than if he walked into a retail store and assaulted a check out clerk."

Good point. I am curious to see if there is any case law or statue that clarifies about privacy expectations in a cab.

It does feels intuitively to me a little more private inside a cab than in a store, if simply because it's just the driver and you / your party, no one else.

Almost every cab I get into has a dashboard/passenger camera. Publishing might be an issue as would the audio.

On a second thought, the car is personal property so how would the owners right to control his environment apply?

It sure did make for a funny video though.

"the car is personal property so how would the owners right to control his environment apply?"

Well, that's the whole Uber question :) Is it really personal property? Is it not being used for business purposes?

I could not find the complaint but I am guessing the passenger is suing Uber if simply because of the deep pocket principle.

I'm not sure that the passenger has any more expectation of privacy here than if he walked into a retail store and assaulted a check out clerk.

How does assaulting someone after the fact change ones reasonable expectation of privacy beforehand?

There is a major difference between a cab and a store since you would think no one could hear you in the former..

The law is quite clear here:

“[A] conversation is confidential under section 632 if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 776—777 [117 Cal.Rptr.2d 574, 41 P.3d 575].

And even if you have one too many, that doesn't mean that someone has the right publish you being confused and looking stupid.

You raise a good question. In his extremely inebriated state, could the assailant have even offered consent? And is it therefore always unlawful to record audio of someone thus inebriated? Another question would be is the wiretapping law pre-empted if the person recording feels in imminent fear for his/her personal safety? I don't have the answers to either of those questions.

The other issue here is whether the audio specifically caused the assailant damages. It's arguable that the video on its own merits would have gotten the assailant fired, humiliated, etc.

Since Uber drivers are independent contractors, attaching Uber to the lawsuit seems to be a stretch at best, and also reinforces the point that the vehicle was the driver's private property, which could also be reinforced by the fact that the car was likely registered in the driver's name and the car insurance was in the driver's name.

But I think the biggest question was where John started this, which is, "Does a passenger in an Uber vehicle have a reasonable expectation of privacy?"

I don't know how to answer that question, but it feels like the answer is no.

Because it's California, the question is actually: Would the passenger have had an

“objectively reasonable expectation that the conversation is not being overheard or recorded.”

A lot of that would depend on where and how the camera was placed etc. Obviously, due to various circumstances, he did not suspect that he was being recorded.

So if the camera was obscured, and the driver said nothing, then as distasteful as it might sound, I think the uber-beater gets something out of it.

Not 5 million dollars, but something because the guy was taping from the get go, and publishing him being drunk alone could have caused him to lose his job and be humiliated (depending how funny it was). The fact that he beats up the guy after doesn't alter the fact from before.

For instance, let's say I go to your house and secretly tape our private conversation. Before I leave you discover the recorder on me and punch me in the face.

Its illegal to assult me, but it's still illegal for me to tape you, right?

Come to think of it, that would probably be the best defense, in the criminal case for Mr. Uber beater, if you can get just the audio disqualified as evidence (possible), then he should claim that he became enraged when he realized has was being illegally taped.

Better defense than, "I'm not like that normally".

So, I live in California too.

Anger at being illegally taped isn't a defense. Also there's nothing on the video that suggests that he had any clue he was being recorded, consensually or otherwise. While that goes in his favor on one regard, it also completely negates your supposition.

The issue as I've already stated really comes down to two points:

1) Is the video enough on its own with the Audio to do the damage to the assailant (I think it is)

2) Did the assailant have a reasonable expectation of privacy while riding in the Uber (I think the argument can be made that he doesn't have a reasonable expectation of privacy.)

That's really it.

I gave the outlier question (because I don't know the answer) if California's wiretap law can be pre-empted by somebody who is in fear of their personal safety. I then asked if it's even possible for somebody who is THAT intoxicated (he was VERY intoxicated) to even give consent, or even be aware that he has or doesn't have a reasonable expectation of privacy, and if thus being so intoxicated also preempts this, because the expectation is supposed to be "reasonable" a characteristic that does not exist with a person who is THAT intoxicated.

Either way, it's blood from a turnip because the Uber driver clearly has no money.

Anger at being illegally taped isn't a defense.

Sure it is. Legally it's known as provocation:

In criminal law, provocation may be either or both a statutory or common law possible defense or an offense. Provocation may be a defense by excuse or exculpation alleging a sudden or temporary loss of control (a permanent loss of control is in the realm of insanity) as a response to another's provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge.

If the audio was ruled inadmissible, he could claim the uber driver threatened to put him on YouTube if he didn't get out of the cab. It's a plausible reason for anger, even if we know it didn't happen. Juries will want to know why he did it.

Also there's nothing on the video that suggests that he had any clue he was being recorded, consensually or otherwise.

Play the video again, this time without sound, imagine you don't know what was said. A clever defense lawyer could propose any number of exchanges that would be hard to disprove.

My point was only that it would be better than the current, "That's not who I am defense."

Now let's tackle those unanswered questions:

1) Is the video enough on its own [without] the Audio to do the damage to the assailant (I think it is)

Answer: Yes

Though, IMHO, in a tort case this makes little difference. Why? Because before the truly damaging video of him striking the uber driver we have the, less shocking but equally fireable offense of public intoxication, in which the audio plays a key part in establishing that he is drunk as opposed to tired or sick.

His Boss may well have fired him on the basis of that alone, even if he did not strike the driver. If so, then it doesn't matter if he would be 'more fired' in a few moments.

Say you smash into me in a parking lot, damaging my right fender. Clearly your fault. Then on my way home I total my car. Do you think you not liable still for the original damage, even though I have no car anymore?

2) Did the assailant have a reasonable expectation of privacy while riding in the Uber (I think the argument can be made that he doesn't have a reasonable expectation of privacy.)

Answer: Yes

Where's your argument?

My simplest argument is that I have been a dozen taxis in the last five years, I have never noticed a camera. If I was be recorded I didn't know. If I didn't see a camera, it wouldn't even enter my mind. I'm a reasonable (I hope) person.

Camera appeared to be a rear-view mirror type, and as you say he didn't seem to notice it. I'm not sure every reasonable person would.

First of all, thank you for such a detailed analysis, I learned a little bit, and it gave me a different perspective on the questions I asked.

"Sure it is. Legally it's known as provocation:"

Ahh, but Provocation is a legal defense for a criminal case, not a listed causal factor for a Civil case, at least not according to the link you provided. There's some other issues with this tact as well. For starters, Provocation generally requires establishment, meaning it has to be reasonably proven that the provocation occurred. If the audio is inadmissible here, then Golden has no way to establish that he was provoked beyond his testimony, which of course would be refuted by Caban's testimony. Also, since Golden has since gone on to do interviews where he never once mentioned that Caban provoked him, either audibly or by recording him on video, I don't expect a Jury would buy that story. The only way Golden would have to establish it would be witness testimony (there is none) or listening to the audio (which of course then makes the audio admissible, and then of course it would be clear that Caban never threatened Golden as you suggested.)

Also, to extend your argument, Provocation would be a 2-way street. You say that Golden may have violated the law because provoked by Caban, which I contend is very hard to establish. However, far easier to establish is that Caban felt threatened by Golden's words and attitude (and extreme intoxication) to the point where he felt it was necessary to violate the law to protect himself.

But again, that's really only a criminal defense, not a civil defense.

"Because before the truly damaging video of him striking the uber driver we have the, less shocking but equally fireable offense of public intoxication, in which the audio plays a key part in establishing that he is drunk as opposed to tired or sick."

Even without the audio, we have the scene where he falls over as Caban makes a U-Turn. I think that fairly well established that Golden was not only intoxicated, but VERY intoxicated. We also have a police report with Golden's BAC as public record now, further solidifying that he was drunk. I suppose it could be argued that if Caban hadn't recorded Golden, he wouldn't have gotten angry and struck Caban, and the police never would have been called, Golden never would have been arrested, and his BAC never established. But that sounds more like a story for "The Good Wife" than it does an actual legal case. With a little digging, I'm sure Caban could get witnesses at the bar that night who observed Golden being excessively intoxicated, or subpoenas of Golden's credit card bill for the night establishing how much he spent at the bar (if he didn't pay cash). Point is, his intoxication is establishable far above and beyond the audio.

I do wish however that Taco Bell would not have issued a statement. Being that California is an At Will state, they should have just terminated Golden and made no statement and not listed a cause. Then Golden could have still sued for damages based on corollary, but no direct cause and effect. It was ill-advised of Taco Bell to fire him with the statement they provided.

"My simplest argument is that I have been a dozen taxis in the last five years, I have never noticed a camera. If I was be recorded I didn't know. If I didn't see a camera, it wouldn't even enter my mind. I'm a reasonable (I hope) person.

Camera appeared to be a rear-view mirror type, and as you say he didn't seem to notice it. I'm not sure every reasonable person would."

So first of all, I've probably been in the same number of taxis in the last year and I have in fact noticed cameras recording me. There were probably signs telling me I was being recorded (I don't recall in every instance). I also know there are dash cams with forward and rear facing cameras, though that's probably due to the industry we're in more than it would be something a reasonable person might realize. But that didn't really answer my question about reasonable expectation of privacy. All you stated was that you never recall being surveilled in a cab, that doesn't answer the question if riding in a cab (or uber) is considered a "public space."

I really don't know the answer to that question. Perhaps there's legal precedent establishing it.

As a side note, it would be wise for Uber to update its Code of Conduct to establish that Riders should be aware that they may be recorded (video and audio) at the driver's discretion, and that they consent to this by using the Uber service.

Ahh, but Provocation is a legal defense for a criminal case..

But I was talking about the criminal case:

Come to think of it, that would probably be the best defense, in the criminal case for Mr. Uber beater..

As for the establishment of the provocation

If the audio is inadmissible here, then Golden has no way to establish that he was provoked beyond his testimony, which of course would be refuted by Caban's testimony.

Challenged certainly, but I'm not sure it could be refuted. Playing against Caban here is the fact that he WAS recording and he DID post the video; had he not I agree it would seem fabricated.

Also, in terms of plausibility, consider that had Caban actually thought of saying "Get out of my cab, or you will on YouTube by the morning", I think he would have said it. After all, if he was the type to post the video, whay wouldn't he threaten it? He was trying hard to get the guy out of his cab, and if he thought that would work, why not?

And if Caban had said it, he would possibly deny it in court. So it's plausible. And in the criminal case, even if it doesn't get him off the hook, it could reduce his sentence.

Also, since Golden has since gone on to do interviews where he never once mentioned that Caban provoked him, either audibly or by recording him on video, I don't expect a Jury would buy that story.

In the interviews I have seen he says he doesn't remember anything about the incident, has that changed? So he doesn't need to contradict himself, rather he would just 'remember'.

You say that Golden may have violated the law because provoked by Caban, which I contend is very hard to establish. However, far easier to establish is that Caban felt threatened by Golden's words and attitude (and extreme intoxication) to the point where he felt it was necessary to violate the law to protect himself.

Again, the timeline is key here; the audio, with street level video was being recorded from the moment he got in the cab. Certainly he could have refused the ride instead of violating the law.

I'm sure Caban could get witnesses at the bar that night who observed Golden being excessively intoxicated, or subpoenas of Golden's credit card bill for the night establishing how much he spent at the bar (if he didn't pay cash). Point is, his intoxication is establishable far above and beyond the audio.

i'm sure that Caban's lawyers could prove he was drunk before stepping in the cab, but just because they can prove it NOW doesn't mean it was available THEN.

I readily admit I'm basically guessing here. But the way I understand it, the plaintiff has to show that the defendants illegal actions caused or may have caused the damage.

So, let's say you are Golden's Boss, you come across the video by accident. As you are watching it you see and hear that he is a drunk and not the guy you want working for you. Even without seeing the rest of the video. I could be totally wrong here.

But that didn't really answer my question about reasonable expectation of privacy. All you stated was that you never recall being surveilled in a cab, that doesn't answer the question if riding in a cab (or uber) is considered a "public space

As I stated in my first post, the test of law here is not exactly "public space", but rather the law asks does one have a

“objectively reasonable expectation that the conversation is not being overheard or recorded.”

And I am saying that I for one, have not ever considered "am I being recorded?", when I have been in a taxi without a recording device visible. And I think that there are quite a few like me.

And I say this, any space which has no signs about recording, makes no announcements about recording, and has no clearly visible recording device would be the same. Except maybe jail. But they probably have signs there.

Anyway thanks for the though 'provoking' discussion! No matter what I have new expectation of privacy in cabs now!

Yes, thank you for the discussion, it will be interesting to see how this plays out.


Regardless, Mr. Golden is going to have a hard time seeking equivalent employment in the future, regardless of the outcome of his criminal and civil cases.

does uber have and user/customer agreement for when you use the app? I am not familiar with how it works but I would imagine that uber has limited their liability and the customer and driver have both agreed to that...

That taco bell guy got his what for!! Good for the cab driver I'm about to donate 20 dollars to his go fund me right now after watching this!!

Guy says its not him:

Thanks for sharing, it's a weird interview. To clarify for those who have not watched the video, he's not implying that he literally did not do it, he's evidently trying to claim "he's not that type of person who drunkenly beats up people," except that he did.

I see 3 different problems:

  • Lack of regulation for taxi services in general, this people need to be sure they have enough regulation to protect them if they want and that includes the usage of video, live streaming to control rooms, audio etc, anything that can help them from being assaulted is in my opinion acceptable if they want to have these measures. Most likely they will lose some customers who preserve their privacy but that’s the price to pay. For me, a taxi is equal to any other commercial space and should be possible to be use technology to make of them safer places for both drivers and passengers that can also be victims of assaults by others that simply jump in the vehicle during the ride. Of course this needs to be announced, visible and explained to all passengers that request for the service and they must have the right to refuse being recorded, but at the same time the driver should have the right to decide if he accepts to ride someone without a camera recording. I guess this is the same as any police officer car camera that becomes more and more evidence of crimes against them.
  • If not regulated and installed out of the norms, unfortunately the camera and the audio recording is illegal and being the case, not suitable for any kind of sue actions for the driver. In that case the best the driver could have done would be calling the police, learn from the police if and how to use that evidence in a way that the passenger gets punished by what he did and end of story.
  • It is understandable that the driver wanted to show to the world how easy is for any taxi driver to be assaulted and how brutally he was assaulted, however by doing this he should be aware that any court in the world will accept to defend the passenger as a victim of privacy abuse and that’s something usually heavy to deal with… He will have the protection of the people who for sure will be on his side, but I am afraid that laws must be followed otherwise is not possible to live in community…

Aside of any personal judgment that any individual will have his own, I guess the majority will stand by the driver’s side but this is a very interesting case for lawyers and will for sure start new discussions about how to deal with this in the future.

Personally I am sorry for the driver, none should be treated like that when all he was doing was executing a service, about the regret of the passenger I am not so sure how real it is but is part of the play, he is really in trouble in the society so he has to play the “it is not me” role to make him more human.

For all Uber or Taxi drivers this is also a lesson, on arrival if you see someone too drunk simply don’t pick them up… it is not your problem to deal with it!

Rui,

Good feedback!

"he should be aware that any court in the world will accept to defend the passenger as a victim of privacy abuse and that’s something usually heavy to deal with…"

Interestingly, I think in the EU that would be the case but in the US, we do not have as strict / comprehensive right of privacy as most EU countries. In the US, a lot of it depends on whether a place is deemed 'public', if public, little expectation of privacy.

"For all Uber or Taxi drivers this is also a lesson, on arrival if you see someone too drunk simply don’t pick them up… it is not your problem to deal with it!"

Here's an interesting article related to that. Ironically, Uber promotes itself as the safe alternative to drunk driving, i.e., drunks should take Uber, so this places the driver in a tough spot, Uber wants the business, the driver is afraid of safety risks.

Hi John,

I am pretty sure drunk people are the best Uber or Taxi users, that's a market for them but there's a risk associated with dealing with people in this condition, so I guess it's the driver who should make this risk evaluation and decide what to do.

Uber is a very interesting service, I use it often when traveling to US, better cars, nice people but no safety systems in place for the drivers. A normal Taxi in my country used for night shifts most likely will have a Glass Barrier between the back seat and the driver and none is allowed to sit front "as default", it is not nice but comprehensive...

I guess this will be interesting to follow, true that US are more open to what refers to privacy but also is not unusual that smokers still get million dollars actions from cigarettes brands due to lungs cancer no matter how big are the letters saying smoke kills in the packets, so things happen…

"For all Uber or Taxi drivers this is also a lesson, on arrival if you see someone too drunk simply don’t pick them up… it is not your problem to deal with it!"

I disagree with this comment for many reasons. First of all, it's a little hard to assess until the person is in your vehicle how drunk they are. Caban may not have had any idea how drunk Golden was until after the drive started. Clearly once he recognized this, and recognized how hostile Golden was being, he stopped the vehicle and asked Golden to exit, quite politely.

The only questions, as stated numerous times become then:

1) Did Golden have a reasonable expectation of privacy and, if so, was the video by itself enough to have Golden prosecuted and fired from his job?

For all Uber or Taxi drivers this is also a lesson, on arrival if you see someone too drunk simply don’t pick them up…

Or pick'em up for free!

My son is a driver and loves it. He does it for the experience of meeting new people and learning/telling about places to go. And he sees picking up people too drunk to drive as part of his role. I have urged him to get a camera but he said it could stifle the conversation. By the way John. What would be a good camera to use in such situations? Perhaps an IR supplemented unit?

We don't know drive cams well enough to answer clearly. We did two tests a while back (Testing CarCam and Testing Advanced Drivercam) and have some awareness of this space. What's weird is there is no premium / clear name brand in the drivercam space. It seems to be almost all overseas / rebrands.

What a relentless beating. I couldn't watch it after the first ten seconds or so.

On the other hand, dude can really take a shot!

As long as the trial is not held in Manitowoc County, Wisconsin Mr Uber should be OK otherwise its LIFE for sure...

FWIW, I believe that this camera is very similar to the one used by Mr. Uber.

Not exactly a Dash Cam, but a rear view mirror mounted cam with movable lens.

Looks a little weird, but you might not notice the orbs on the bottom right.

Got it for Christmas.

What lawyer in his right mind would suggest suing the beaten driver?

Lol, that I agree with, especially since the driver appears to have no money.

Also, a lawsuit inevitably will continue to draw more attention to this, which is what this guy probably needs least of all.

Exactly. What this guy should have done was try to slip into obscurity for a couple years until everyone forgets his name, and THEN try and rebuild his career. Apparently he's not too bright, which begs the question how did he get a Brand Manager job at Taco Bell to begin with?

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