07 Nov Jake Paul, Criminal Eavesdropper?  YouTubers Need Legal Advice Too

Posted at 21:26h in Criminal Defense by

If you’re a kid, or have kids (more likely, if you’re reading a law firm blog), you’ve probably heard of Jake Paul.  If not, that’s ok—think of him as the Disney Channel version of Anthony Scaramucci.  Jake Paul is a teenager who posts videos on YouTube of himself being obnoxious and outrageous.  He used to be on a Disney show playing a teenager who posted videos on YouTube of himself being obnoxious and outrageous on YouTube, but that ended this summer when the public obnoxiousness apparently created too much negative publicity for Disney.   (Full disclosure: I have kids, so I’ve watched Jake Paul on YouTube, and I think he’s pretty funny.)

I’m a criminal defense attorney.  People come to me and my partners here when they’re in trouble.  Some of my clients are in the entertainment business.  They get their money and fame from their creative endeavors.  If I do my job well, those creative endeavors are what you’re going to see in the media—you’re not going to read about the problem that required my attention.

But “YouTubers” like Jake Paul are different.  Paul’s money and fame comes from turning his (purportedly) “real-life” exploits into YouTube videos.  Tens of millions of people watch his YouTube videos; his television role was small potatoes by contrast: as his YouTube antagonist RiceGum puts it (over and over) in his anti-Paul “diss track”: “No one knows your Disney show.”   (You can Google it; it’s pretty funny, too.)

Around ten million people subscribe to Paul’s YouTube channel, and he averages 15 million video views each day.  The prevailing aesthetic in the YouTube world appears to be to blur the line between life and art so that your YouTube videos chronicle your “real life” crazy antics.  But as the New York Times recently suggested, Jake Paul is in fact a savvy businessman who saw a niche and is exploiting it masterfully.  His online persona is a “character,” he told the paper.  He’s making content that people like; his fans aren’t dumb—they don’t really believe, for example, that he actually married Erika.  Hemingway said it best: “Isn’t it pretty to think so?”  Well, yeah.

Now, we’ve had “reality shows” for decades, obviously, but the YouTuber phenomenon is different.  “Reality” shows (like all the Kardashian iterations) are produced by established television networks, with teams of technicians, producers, and– importantly– lawyers.  The Kardashians didn’t blur the line between “art” and “life”; the line was always painfully visible.

The YouTuber phenomenon comes a lot closer to actually erasing the line.  Why does that matter?  Because, as Jake Paul’s recent travails show, figuring out the legal ramifications of that erasure can be tricky.  For YouTubers, the lesson is easy: Call me, or someone like me, and do it now, before you end up doing it with your one booking-cell phone call.  For the rest of you, here’s an interesting story.

Jake Paul lives in a rented house on a formerly quiet block in west LA. It’s not quiet any longer, because he turned it into a 24-hour party zone, publicizing his address and encouraging his fans to throng the street, not to mention filming wacky hijinks like burning a pile of furniture in his pool.  His neighbors had enough, and filed noise complaints.  A news crew showed up, and Jake came out to obnoxiously mock his neighbors’ concerns, climb up on the van, and generally raise a ruckus.

The next day, Paul went over to a neighbor’s house to apologize.  Apparently unbeknownst to the neighbor, he filmed the interaction, and posted it on YouTube.  Then he had some friends pose as police, and show up to “arrest” him.  Again, he had the whole thing filmed, and posted it on YouTube.  The videos were wildly popular.  Paul had nailed the narrative archetype: cocky kid flies to close to the sun, gets burned, learns a life lesson.  Except that it was fake, and staged, and the neighbors (some suspected) were not all in on the joke.

YouTube exploded with commenters pointing out that California is a two-party consent state (meaning you can’t surreptitiously record someone in a private conversation without their permission), and accusing Paul of committing a crime.  Many commenters predicted imminent arrest and jail time for him.

Now, I suspect that Paul and the hundreds of kids like him are out there producing their videos largely without adult supervision or legal counsel.  That’s a mistake.  There’s real money at stake here—and real legal risk.  Television and movie studios have lawyers on retainer, and plenty more in their contact lists.  YouTubers ought to as well.

 You need to talk to a lawyer to figure out whether the YouTube accusers are right.  Did Jake Paul commit a criminal act?  Well, as is usually the case, the legal analysis has some nuance to it.  The statutory language defining this crime (Penal Code section 632) is as follows: a person who “intentionally and without the consent of all parties” records a “confidential communication” is guilty of a misdemeanor.  The action is all in the term “confidential communication.”

The Penal Code gives us some guidance here.  Section 632(c) says that a confidential communication is one in which “circumstances reasonably indicate that any party to the communication desires it to be confined to the parties thereto.”  And most importantly, it says that a communication “in which the parties to the communication may reasonably expect that the communication may be overheard or recorded” is not a confidential communication.

So does Paul have a defense?  Let’s make the strongest possible assumptions in favor of liability: let’s assume that (a) he didn’t get consent, (b) the recording equipment was not open and obvious, and (c) there were facts suggesting that the neighbor desired the conversation to be private.  Even with those assumptions, it’s still not clear that there was a “confidential communication.”

His neighbors know exactly who he is and what he does for a living, and they know that his modus operandi is to record everything he does.  They know that he records everything: his parties, his stunts, their complaints, his reactions to their complaints, his interactions with the police and news media. They know all that, and we know they know all that, because that’s what they’re complaining about: that they’re living next to a guy who’s turned his house into a YouTube film set.

So if you’re Paul’s neighbor, don’t you “reasonably expect” that every communication you have with the kid “may be overheard or recorded”?  Seems likely.  And given that background knowledge, if you do want to have a private conversation with him, wouldn’t it be reasonable to make sure of it by saying explicitly that you don’t want it on tape?  The key point is that the ordinary assumptions people might make about their conversations may not apply, in this context, to these conversations.  And that’s a real legal defense.

This is all hypothetical, of course, because there’s been no charge or lawsuit as far as I’m aware.  But at Brown White & Osborn, clients come to us every day with all sorts of real legal problems—big and small, civil and criminal.  A lot of them could have been prevented with some advance planning.  Whatever your problem, we’ll work to resolve it, and to anticipate future problems.  Because shouting YouTube commenters aren’t always right.

 

 

 

Caleb Mason

Caleb Mason

Caleb Mason is a partner with Brown White & Osborn LLP. He is a former federal prosecutor, and handles a wide variety of civil and criminal litigation. He has authored numerous scholarly publications on criminal and constitutional law, and is a frequent media commentator on criminal-justice issues. He was recently appointed to the Police Commission for the city of Claremont, California.
Caleb Mason

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