Prop 22 was passed in November of 2020 in response to California Assembly Bill 5, which gave gig workers wage and benefit protections. Ride-share companies like Uber, Lyft, and DoorDash built their business model on gig workers. And they spent hundreds of millions of dollars to defend it, lobbying in support of Prop 22 and making it the most expensive ballot measure in California's history.
The Service Employees International Union sued the state in January to overturn the proposition, and on Aug. 20, an Alameda County Superior Court Judge Frank Roesche found Prop 22 violated the state's constitution, rendering it unenforceable. Uber and other ride-share companies have already announced their intent to appeal the ruling, and the case is expected to make its way up to the California Supreme Court.
dot.LA spoke with Catherine Fisk, Berkeley Law professor who wrote an amicus brief in favor of the drivers, about what the ruling means for the future of Prop 22, ride-share companies, drivers and the gig economy at large.
This interview has been condensed for brevity and clarity.
The Superior Court found that two sections of Prop 22 were unconstitutional, both of which you outlined in the amicus brief you and others wrote in favor of the drivers. Which parts of the proposition violated the state constitution?
One argument was that Prop 22 unconstitutionally limits the power of the legislature to provide for a complete and adequate system of workers' compensation. Workers' comp is a program that now every state has that provides a system of no-fault compensation for workers who are injured or become ill in the course of their employment. So legislatures everywhere created systems of workers compensation. Business groups, at that time, didn't want to pay the cost of compensating workers for their injuries and challenged these workers' comp systems often in court, and in many cases found judges to invalidate the workers' comp programs in whole or in part. So in California, the people amended the constitution to require that the legislature have plenary—that is complete power—to provide for a system of workers' compensation. This all happened over a century ago. So in the case of Prop 22, the court found that by carving out app-based drivers from the protections of workers' comp, it unconstitutionally limited the power of the legislature to provide for a complete and adequate system of workers' comp. Essentially, the transportation companies were trying to redo what businesses had done a century ago to eliminate workers' comp for some or all employees. And the court said no, because the California Constitution had been amended in 1918, specifically to prevent that kind of move by business.
Berkeley Law professor Catherine Fisk
A second argument was that Prop 22 violates another provision of the California Constitution, which requires that any ballot initiative, like any other piece of legislation, must address only a single subject. The purpose of the single subject rule is to prevent voters from being confused or misled about what a ballot initiative would do. In the case of Prop 22, the particular confusion that the court focused on was that Prop 22 prohibits the legislature from enacting a law that would authorize drivers to negotiate collectively through a representative. This provision of Prop 22, which was buried in the fine print, was not described in the advertising in favor of the proposition. It wasn't even described in the voter information pamphlet, or the summary that appeared on the ballot.
Right, I don't remember hearing about that part of Prop 22 at all in 2020.
You had to read every single word of Prop 22. But even if you had read every single word, you wouldn't have understood what this provision would do. Because in order to understand it, you have to understand federal labor law, federal antitrust law, and their relationship to each other. Here's why. The real significance of that provision was that if the workers unionized it would enable the companies to sue the worker union for being in violation of federal antitrust law. There are 50 lawyers in the country who know enough about antitrust law, and enough about labor law to understand that that's what was going on.
So because this was hidden in the fine print and not described anywhere and had nothing to do with what the what Prop 22 said it was about—which was eliminating minimum standards for drivers—this, the court said violated the single subject rule, because it would confuse voters, you could read all the materials and still not understand what you were voting on. So that was another argument that the court found for why Prop 22 was unconstitutional.
Assuming this goes all the way to the state Supreme Court, the Superior Court decision is upheld, what might that mean for the ride-share companies and drivers?
It means Prop 22 will not be in effect, which means that the legislation that Prop 22 was designed to overrule [AB5] will go into effect, which means that drivers of transportation network companies will be entitled to be paid the minimum wage; they will be entitled to be paid overtime if they work more than 40 hours a week; they'll be entitled to protection against discrimination on the basis of race, religion, gender, etc; they'll be entitled to workers compensation benefits if they're injured. It will improve minimum standards for drivers.
And if the decision is ultimately overturned by the state supreme court, what legal options remain, if any, to get those protections for gig workers?
None. Well, to be clear, Prop 22 did say that the legislature could amend it by a seven-eighths vote. In other words, seven-eighths of the entire legislature would have to vote to change any provision of Prop 22. Why seven-eights? Because the proponents of the Prop 22 know that Democrats have a two-thirds majority of the legislature, and so they wanted to make the majority so great that the legislature could not amend it. Federal law can preempt state law or it can supersede state law. So Congress could provide that drivers are entitled to the minimum wage. Congress could provide that they're entitled to unemployment benefits, if they are laid off. Congress could create a compensation system for injured drivers. But it would have to go through Congress. And it's very hard to get anything through Congress.
Right, so high stakes.
Very high stakes.
What are the implications of this ruling then for the gig economy at large?
The gig economy, so called, especially for low-skill work like driving has been based on a low-wage model. Drivers get paid very little. Many are making way less than the minimum wage. They have no protection if they're injured in the scope of employment. And there's no reason that driving for a living has to be a low-wage job. In the 1950s, when truck driving was unionized, driving was a middle-class job.
So really what this fight is about is how to divide the profits of the app-based driving model. Should more of the money that's being made in this work, go to the workers? Or should more go to the investors? I've received a dozen phone calls or emails since the decision came down by people saying they represent investors in this industry who want to talk to me about what it means—I decline all those calls, by the way—because investors are making a bunch of money in this sector, and they want to know whether they're going to keep making a bunch of money, or whether it's going to be less profitable for investors, and more profitable for workers. That's what's at stake here.
Is there a model that could work?
When taxi cabs came into existence, everybody thought, "Oh, that's genius. Imagine being able to stand on the sidewalk and wave my arm at a yellow car, and have it stop for me and take me where I want to go." The real question is, are we going to regulate this innovative business to ensure that drivers are paid decently and have protection in the case of injury. We figured out how to have taxis and regulate them to protect both drivers and the public; cities all had taxi cab commissions that did exactly that, and they regulated fares. We could have the same model for app-based driving. The real question is, are we going to regulate this innovative business to ensure that drivers are paid decently and have protection in the case of injury. It will probably be more expensive. But when everybody said, "Wow, Uber is half the cost of a taxi," nobody thought, "and why is that?"
The thing about an Uber is that companies figured out that you could have a giant fleet of drivers on the road at all times, with zero fixed cost to the company. The drivers pay for the car; the driver pays their own time; the driver pays gas; the driver pays insurance; the drivers pay if they become injured; and the city picks up the cost of the road maintenance. So the company shifted all the risk and all the fixed costs of the business to the labor force, which was genius from the investing standpoint, but terrible for drivers.
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What Data Does Snapchat Collect?
Snapchat, their primary application, collects a myriad of data on its roughly 363 million daily active users, from basics like device information to detailed location tracking. "From day one, we’ve embraced data minimization, and believed that the best way to protect user privacy is to not store data at all, and if we do have to store it, to do so for a short and fixed period of time," Snap spokesman Pete Boogaard told dot.LA.
As such, like most tech companies’ privacy policies and terms of service, the verbiage is intentionally vague or full of legalese designed to make the user gloss over and click “agree.” But Snapchat does have to provide its users some details of how it collects, stores, and uses the data it gains from interacting with the app.
Bill Budington, a senior staff technologist at the Electronic Frontier Foundation, told dot.LA that the common phrase, “necessary to provide service,” is particularly concerning.
“These are very vague ways to basically give a green light to very permissive practices in terms of your data,” Budington explained. He pointed out the ambiguous nature of the word “necessary,” adding, “[tech companies] can deem all sorts of things necessary, [including] using your location at every moment to better tailor their services to your life.”
While Snapchat’s terms of service haven’t changed since last November, the company most recently updated its privacy policy on July 29. Let’s dive into the various types of data Snapchat collects, how it stores it (and for how long), and perhaps most importantly, how Snapchat says it’s used.
Why Does Snapchat Collect Your Location Data?
Snapchat is very invested in collecting users’ precise location data, if users allow it. Its Snap Maps feature launched in 2017 lets users opt-in to showing their Bitmoji avatar on a map corresponding to their location and also allows them to track other friends who have opted in. It’s not dissimilar to Apple’s FindMy app.
In the past, the feature has raised concerns for its ability to make it easier for bullies and stalkers to find targets. Snap Map location, however, isn’t public information. Snapchat says location on Snap Maps will disappear after 24 hours, or when a user deliberately goes into “ghost mode” to hide from friends – but that doesn’t mean the app still isn’t tracking their movements. The company noted that unless you opt-in to live location sharing, the Snap Map won’t update with your location when you’re not actively using it.
Boogaard told dot.LA that while many of Snapchat’s core features do require location tracking, “location-sharing is off by default for all users” and “Snapchatters have complete control over their location sharing.” Snapchat added that there is no option to share your location with any user you aren’t friends with and that users have to individually select friends to share their location with.
Snapchat clarified that it does use location data to provide its Geofilters – custom photo and video filters often themed around specific places or events – and show people what’s nearby (also useful for ad purposes).
“We don’t share personal data about the users of the Snapchat app with data analytics providers,” Boogaard said.
Snapchat employees can also allegedly access all this information, and more – in 2019 Motherboard reported on a tool called SnapLion that it claimed was abused by employees to “spy on users.” In response to the report, Boogaard told dot.LA, “Any perception that employees might be spying on our community is highly troubling, and wholly inaccurate." Boogaard added, "Protecting privacy is paramount at Snap. We keep very little user data, and we have robust policies and controls to limit internal access to the data we do have, including data within tools designed to support law enforcement. Unauthorized access of any kind is a clear violation of the company's standards of business conduct and, if detected, results in immediate termination."
How Does Snapchat Use Your Content?
Snapchat can see the snaps you send, who is receiving them, and how often you’re online, as well as the metadata in each image.
Snapchat’s Streak feature (which tracks how long you and friends have regularly been sending and opening each other’s content) is one reason why the app also collects data on how often you and your friends open messages or capture screenshots.
It also tracks and scans the content users upload to its Memories feature. This is to train its AI to recognize the content of user images. In its privacy policy Snapchat notes that “if there’s a dog in your photo, it may be searchable in Memories by the term ‘dog,’” as part of its goal to make image search more accessible.
Snap’s policy also dictates that any public content a user generates on Snapchat is also fair game for the company to share though it doesn’t say how it will share this content.
What Data Does Snapchat Collect From Accessing Your Camera?
Besides the typical use for taking pictures, Snapchat can also access information from Apple’s TrueDepth camera – the front-facing, high-powered cameras that Apple’s iPhone X uses to record Face ID and Memoji data.
Snapchat says it uses this data “to improve the quality of Lenses”—its filter and augmented reality feature. But it also said it doesn’t collect biometric information, much less store the data on its servers or give it to any third parties.
Still, that’s a practice that’s come under scrutiny recently. In August, Snap was sued, accused of violating Illinois’ Biometric Information Privacy Act by collecting and storing users’ biometric data without their consent. That $35 million case is expected to head to settlement next week, after a judge couldn’t rule in favor of either party. "Snap continues to vehemently deny that Lenses violate BIPA, which was designed to require notice and consent before collecting biometric information used to identify people," Boogaard told dot.LA.
How Does Snapchat Use Your Data?
Now that we know all the information Snapchat collects, what is the company doing with it?
The main use case is advertising. Snapchat has a myriad of advertisers on its platform and they are all eager to turn users into sales by showing them the most relevant ads. Ad pricing starts at a modest $5 per day, so theoretically anyone with a marketing budget and the right connections could use Snap’s tools to market to its growing audience of Gen Z and Millennials.
Snapchat promises advertisers “advanced targeting capabilities,” and the benefit of finding a target audience using its location, demographics, interest and device data.
But who’s getting this information? That’s where things get vague. Snapchat doesn’t have to tell users specifically which companies are getting access to their data. The company notes it may share information with service providers that it contracts for services like ad analytics or payments. The company also says it might share user information with “business partners that provide services and functionality” for Snapchat, but again, doesn’t elaborate any further.
Snapchat also says it will share information about users if it could help “detect and resolve any fraud or security concerns, comply with any investigations, legal processes or regulations and to investigate potential terms of service violations.”
Snapchat doesn’t have to tell users when it turns over this data, though. In fact, most apps don’t.
How Does Snapchat Store Your Data?
Snap’s Support site notes Snapchat servers are designed to delete all Snaps automatically after they’ve been viewed by every recipient; the app’s trademark fleeting quality. The servers will delete unopened Snaps between two people after 31 days, and unopened Snaps sent to a group chat after 7 days. Snaps sent to your story are wiped from the servers 24 hours after posting.
Snapchat also says that when you delete a Snap in chat, it deletes it from its servers and will “make our best attempt” to wipe it from your friends’ devices.
If you post a Snap to Memories, though, Snapchat’s servers will back them up forever – unless you delete them, in which case they’ll be erased ASAP.
So what’s the safest way to protect your personal information on Snapchat? Well, Budington recommends an easy fix: simply don’t use it. But for people who are determined to keep their account but want to access what Snapchat collects, there are ways to download your Snapchat data.
You can also opt-out of audience and activity-based ads and third-party ad networks. This will mean the ads on your Snapchat will be less relevant, but the trade-off is that the app will use less of your personal data for marketing purposes.Snap is an investor in dot.LA.
Correction: An earlier version of this article incorrectly described Snap Map's location tracking feature. The feature needs to be enabled first, and Snapchat offers the ability to turn off the feature in Map settings.
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