Thought Leadership

Consent and Recordings Under Florida Law

In the past year, the Haber Law litigation department has been asked a number of times a relatively straightforward question, “is it illegal to record someone without their consent?” A simple question does not always elicit a simple answer, as is the case here. The nuances of this issue are extremely detailed and involve a number of constitutional and law enforcement issues that are not addressed in this article.

With that being said, Florida law generally prohibits the interception or recording of private oral communications without one’s consent. An oral communication is defined “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.” Importantly, this likely does not include oral communications uttered at a public meeting or conversations in a public place where there is no reasonable expectation of privacy or any electronic communication.

So how much trouble could someone get in if they violate what is commonly referred to as the “Florida Security of Communications Act?” The Florida Security of Communications Act makes it a crime to intentionally intercept a person’s electronic communications, including a telephone call, without prior consent of all parties to the communication. The interception or recording of such a communication is a felony of the third degree, punishable by up to 5 years imprisonment and a fine of up to $5,000. It also permits a private cause of action for an interception in violation of the Act that could subject one to monetary damages as well.

It must be noted that there are many exceptions to this general rule. For example, it can be lawful for a person to record a private conversation without consent to prove the violation of a court-ordered injunction in a situation where a person is protected under an active injunction for repeat violence, sexual violence, or other court-imposed prohibitions. Moreover, Florida allows a law enforcement official to intercept a telephone conversation where only one of the parties gives consent and where the purpose of the interception is to obtain evidence of a criminal act.

As noted, the answer to a relatively simple question is quite complicated. Importantly, most factual scenarios involve nuanced legal issues that are rooted both in the US Constitution and oftentimes the duties of law enforcement officials. This article is meant to be a general overview of this topic and not intended to be a full analysis of what is oftentimes an extremely complex topic. If you have legal concerns, issues, or questions pertaining to any illegal recording, or believe you have been illegally recorded please contact the Haber Law office to discuss any questions you may have.

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