Today’s technology makes it easy to record a conversation, especially without anyone knowing. However, it’s not always legal to do so. Secretly recording a conversation in Florida, which has stricter laws than many other states, can result in criminal penalties.
Two-Party Consent
Florida’s recording law is a “two-party consent” law. What this means is that all individuals engaged in a private conversation must all consent to any audio recording of the conversation to be legal. This does not include public conversations such as public speeches. This differs from the Federal Law, which requires “one-party consent,” which means you can record a phone call or conversation so long as you are a party to the conversation.
Subjective Expectation of Privacy
For a conversation to qualify as oral communication, the speaker must have an actual subjective expectation of privacy in their communication, and society must be prepared to recognize this expectation as reasonable under the given circumstances. This means that if the speaker believes their communication in the given location and situation is private, society must agree that their belief is rational.
There are multiple factors used in determining reasonableness of the speaker’s expectation of privacy in a conversation. These factors include the manner in which the communication is made, the kind of communication, and the location. For example, when a conversation takes place in a public parking lot and the speaker is taking no precaution to keep their conversation private, there is no subjective expectation of privacy.
Consent
If all parties to the communication have given prior consent to the recording of their conversations, the recording is lawful. Consent does not need to be explicit and direct; it can also be implied. This indicates that a party to the conversation does not need to explicitly say “I consent to the recording of our conversation.” An individual’s actions can give implied consent to the recording of their conversation. For example, when an individual knows they are being recorded and continues their communication, they are giving their implied consent and therefore do not have a subjective expectation of privacy in their statements.
With the increased use of technology in our lives, this issue is showing up more often in our family law cases. Doorbell cameras, security cameras, nanny cameras, iPhone video, etc. are being utilized more, meaning we have increased footage of not only ourselves, but our children too. When this is the case, one party to a divorce may wish to use the video footage in court to show the other parties parenting style, neglect, demeanor, etc. To use these recordings in a court room, one must go through the above steps, consent and expectation of privacy, to see if it will be admitted as evidence.
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