By Peter Ayers
We’re only a few short weeks into the NFL’s new season, but over the past couple of months, star wide receiver Antonio Brown has already seen his name in the headlines more times than most players likely will throughout their entire careers. These headlines have dealt with topics ranging from lighthearted issues, such as his preferred choice of helmet and the accidental freezing of his own feet, to much more serious issues, such as sexual assault and sexual misconduct allegations made against Brown by multiple women. However, even one of the more seemingly lighthearted issues could have cause Brown to run into legal trouble in California.
On September 6, 2019, while still a member of the Oakland Raiders, Brown posted a nearly two-minute-long video to both his Instagram and YouTube accounts that included a recording of a phone conversation that Brown had with his agent, Drew Rosenhaus, and the Raider’s head coach, Jon Gruden. In the call, Gruden is heard pleading with Brown to just focus on football and to stop the off-field distractions, while Brown is heard saying that he is merely misunderstood and is unfairly portrayed as a villain by the media. Although Brown’s act of recording the phone conversation and then posting it to his social media platforms may have seemed innocent enough at first glance, upon further inspection, the question of whether Brown violated California’s wiretap statute becomes apparent.
The federal government and all 50 states have enacted wiretap statutes to protect citizens’ right to privacy. Generally speaking, wiretap statutes are intended to protect citizens’ communications with other persons by making it illegal to record a conversation unless the party doing the recording has consent to do so. The majority of states, 38 in total plus the District of Columbia, employ what are known as one-party consent statutes, and the remaining 12 states employ all-party consent statutes. One-party consent statutes merely require that one of the parties to the conversation consent to the recording. On the other hand, all-party consent statutes require that all parties to a conversation consent to a recording before it may be recorded.
Because Brown and Gruden were both in California when Brown recorded their conversation, the California wiretap statute would govern in Brown’s case. California employs an all-party consent wiretap statute, which means that Brown, Rosenhaus, and Gruden all must have consented to the recording before Brown could have legally posted it to his Instagram and YouTube accounts. Initially, this was where it appeared Brown could run into legal trouble because it seemed as though Gruden was unaware that Brown had recorded their conversation. Fortunately for Brown, several days after he made his posts, the producer of the video stated that Brown checked with Gruden to make sure that it was OK for Brown to post the conversation before he did so. Gruden has not confirmed this account, but he has also not denied it. Accordingly, it seems unlikely that Brown violated the California wiretap statute, but his actions did bring up a more general issue: with the introduction of various social media platforms in society, such as Instagram, YouTube, Twitter, and Facebook, many people could be unknowingly violating wiretap statutes.
When most people think of wiretapping, they probably think of FBI agents or police detectives secretly listening to phone conversations of someone they are investigating. Most people would not think that they could potentially violate a wiretap statute by simply recording and posting an interaction between two individuals on their Snapchat without the consent of either party. In a world where sharing videos containing audio via various social media platforms has become so prevalent, it is imperative that state statutes make clear what is and what is not a wiretap violation.
In most cases, state wiretap statutes were created well before the creation of social media, therefore do not contain any mention of whether or not a social media post may be punishable under the wiretap statute in question. This forces courts, attorneys, and citizens to venture into case law and make inferences to determine whether a certain post is punishable or not. Further, many state wiretap statutes are extremely long and complex so that even the most well-versed attorneys and judges have trouble understanding exactly what is legal and what is illegal. For instance, the Pennsylvania wiretap statute, which requires all parties to consent to a recording, is a whopping 70 pages long including annotations. Needless to say, it would be a lot to ask of an average citizen to go into the complexities of that statute and fully understand when they may legally post a video containing audio on their social media platforms and when they may not.
Given how easy it has become for anyone to post a video that contains audio on their social media platforms without the knowledge or consent of all of the parties involved in the recording, it is time for states to update their wiretap statutes to include a bright line rule for when such posts cross the line and become illegal. As Antonio Brown’s case exemplifies, all someone needs to do to unknowingly break the law is a cell phone, a social media platform, and a good internet connection. Although many of these cases are not prosecuted, the fact remains that the question of whether an individual will be charged for violating a wiretap statute is left entirely to the discretion of the prosecuting office. The general public should be free to use their social media accounts with the peace of mind of knowing whether or not the state could choose to prosecute them for their actions. Until then, the best practice for people posting videos containing audio to their social media accounts is to make sure that they have the permission of everyone depicted in the video before posting it.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.