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Recording Conversations Can Be Illegal

Posted on January 23, 2013 at 7:45 AM

Have you ever had a client come to you with the idea of secretly recording a conversation? Or worse yet, bring you a tape they surreptitiously made? Florida Security of Communications Act, Chapter 934 of the Florida Statutes, recognizes that oral, electronic, and wire communications are private, unless both parties consent, and cannot be recorded, absent a specific statutory exception. The legislative intent behind this statute is to safeguard the privacy of innocent people to prevent unauthorized interception of these communications. Fl.St. § 934.01(4). The purpose of this article is to familiarize practioners with a basic overview of this statute, its exceptions, and criminal penalties associated with its violation.

Definitions contained within the statute are crucial to understanding the application of Chapter 934. The statute applies to oral, electronic and wire communications. Fl.St. § 934.03(1)(a). An oral communication means an oral statement made by a person exhibiting an expectation of privacy, and does not include statements made during the course of public meetings or events. Fl.St. § 934.02(2). For an oral communication to be protected under this statute the person making the statement must have a subjective expectation of privacy that society recognizes as reasonable, e.g. in a home. Jackson v. State, 18 So.3d 1016, 1029-1030 (Fla. 2009). Key factors in making this determination are the location of the conversation, the manner in which it is made, and the type of the communication. Stevenson v. State, 667 So.2d 410, 412 (Fla. 1st DCA 1996). A wire communication is any aural transfer made in whole or part through the aid of wire, cable or other similar connection between the “point of origin and point of reception,” including through a “switching station,” Fl.St. § 934.02(1). Wire communications are not covered by the statute if the communications were made to the public. Dorsey v. State, 402 So.2d 1178,1183 (Fla. 1971). Electronic communication means any transfer of signs, signals, writings, images, data, or intelligence transmitted in whole or part by “wire, radio, electromagnetic, photoelectronic, or photooptical” means. Fl.St. § 934.02(12). This does not include electronic funds transfers, a tone only paging device, or an electronic or mechanical device that follows the location of a person or object. Fl.St. § 934.02(12)(b)-(d). Interception is defined as the aural or other acquisition of any contents of the oral, electronic, or wire communications with electronic, mechanical, or other device. Fl.St. § 934.02(3).

Any person who intentionally intercepts, attempts to intercept, or hires another person to intercept an oral, wire, or electronic communication can be charged with a third-degree felony, punishable by up to five years in prison and a $5,000.00 fine. Florida Statutes § 934.03(4)(a). There are exceptions to the prohibition contained in Florida Statutes § 934.03. However, the two (2) most frequent will be discussed below. First, a party is not criminally liable if both parties consented to the recording of the conversation. Thompson v. State, 731 So.2d 819, 820 (Fla. 5th DCA 1999). For example, if a person leaves another a voicemail or if a business informs a person that “for quality assurance this call may be recorded.” Second, the legislature has recognized an exception for law enforcement officers in the investigation of criminal activity. § 934.03(2)(c). The two (2) most common applications of this exception are: (a) where a police informant or an alleged victim consents to the recording of their communication and makes a controlled telephone call to the target of the investigation, of the communications.

Not only is the unauthorized interception of communications illegal, but Florida Statues prohibits the contents of the communications and any evidence derived there from being used in any court proceeding, including a trial, a hearing, or a grand jury. Fl.St. § 934.06. A family law practitioner should be well aware of this privilege. For example, a spouse could not record his wife’s telephone communications made from the marital home absent consent or court authorization, and such recordings were inadmissible in a dissolution of marriage proceeding. Markham v. Markham, 272 So.2d 813,814 (Fla. 1973). However, accidental taping on a neighbor’s answering machine of a conversation between a mother and her child did not violate the statute or preclude the father from using it in a custody modification proceeding because there was no intentional recording. Otero v. Otero, 736 So.2d 771, 772 (Fla. 3d DCA 1999). Additionally, Florida Statutes § 934.10 creates a civil cause of action allowing an individual to sue any person or entity who intercepts, discloses, or uses intercepted communications. Civil damages can include, actual damages, punitive damages, attorney’s fees and costs, and equitable or declaratory relief. Fl.St. § 934.10(1)(a)-(d).

During the representation of clients through civil, criminal, or family law cases, a Florida attorney should be familiar with Chapter 934 of the Florida Statutes, its exceptions, and the criminal and civil ramifications from illegal interception of oral, wire, or electronic communications. Illegal recordings or interceptions could result in criminal penalties, a civil lawsuit, and exclusion from evidence.

J. Andrew Crawford, Esquire is an AV-rated criminal defense attorney who practices in Pinellas, Hillsborough, Manatee, and Sarasota Counties. Mr. Crawford’s practice focuses on criminal defense, criminal appeals, and civil appeals. Mr. Crawford also handles Domestic Violence, Repeat Violence, Sexual Violence, and Dating Violence Injunction hearings and appeals. He can be reached via email at andrew@crawforddefense.com.

 

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