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To Record or Not to Record: That is the Question

TO RECORD OR NOT TO RECORD, THAT IS THE QUESTION (written by Michael Krug, Esq., OCBA Lawyer Referral & Information Service)

When individuals are trying to legally protect themselves during a contentious conversation, many people may think about recording the other party. However, this can result in serious legal problems since Florida has a two-party consent recording statute. Some individuals may have heard about the recording statute in Florida from friends or relatives and how it is illegal to record someone without his/her consent. However, the law has various nuances. This article provides guidance on when someone can or should not record a conversation.

Florida’s Statute on the security of communication and surveillance is found in Chapter 934. This Statute covers all wire, oral, or electronic communication and, in general, makes it a crime to intercept and record these communications without the appropriate consent and/or permission. There is, however, an important exception that allows recording of conversations in situations where there is no expectation of privacy. Basically, if you are in a public setting where your conversation can be overheard by others who may or may not be included in the conversation, then an individual may record the conversation or be recorded without permission or consent.

In most cases, a telephone or cellphone conversation has an expectation of privacy and cannot be recorded without both parties’ consent. If an individual fails to obtain this consent and since there is an expectation of privacy in the conversation, anyone recording the conversation can be charged criminally and civilly, and the plaintiff may request payment of his/her attorney fees. Furthermore, individuals cannot use anything illegally recorded as evidence in a court trial, since that could lead to additional criminal and/or civil charges and liability.

This does not mean that the State or State entities have the same restrictions on recording private conversations. If authorities believe they have probable cause that something illegal will or has occurred, they can request a warrant to monitor all of the respective communications. Additionally, if a State representative overhears anything that is related to terrorism, conspiracy, or solicitation to commit a crime, that information may be admissible in court. It is common for State representatives, such as the police, to seek a warrant for phone and wire taps while investigating criminal conduct, and for courts to grant such warrants if they believe there is probable cause.

It is important to understand that the police have methods of circumventing the statute barriers when there is probable cause. Therefore, individuals should know that every time a call is completed to a business where there is an automated message, the message may be recorded for customer service use. By remaining on the line, an individual is consenting to be recorded.

Otherwise, if an individual wants to record a conversation, they must obtain consent from the other party. However, even though the individual consents to being recorded, this does not automatically allow the other individual to record the conversation.  Additionally, individuals should always refer to the term “recording” when making these requests. The law has very specific language and the words that are used are extremely important. A call that is monitored or heard by other parties does not always result in a recording. If an individual suspects that there is a violation of the law, he/she may contact an attorney for further clarification. Visit the Orange County Bar Association’s website at www.orangecountybar.org or call the OCBA offices at (407) 422-4537 for assistance in finding an attorney who can assist.

When the statute states “…all wire, oral, and electronic communications,” this is a broad definition that can be expanded by case law to cover new and emerging technologies. For instance, in 2005 a court case specifically added emails stored on a computer as a means of communications. The case involved a person using spyware to collect emails on another individual’s computer. The court stated that this qualified as interception of the emails even though they were stored on a computer and not sent at the time of the recording. Because people have an expectation of privacy, an individual cannot record another person’s emails. However, this does not mean that communications between the two parties is immediately excluded from use in the court hearing. Individuals should contact an attorney to determine if he/she may use the email conversations in a courting hearing. Visit the Orange County Bar Association’s website at www.orangecountybar.org or call the OCBA offices at (407) 422-4537 to receive assistance on contacting an attorney who can answer these types of questions.

In conclusion, everyone must provide or obtain consent to record or be recorded unless there is no expectation of privacy, to include all forms of communications. To record someone, individuals must receive consent from the other party, to include passive consent such as staying on the line with someone after being informed about the recording. Finally, police officers may be recorded in public and they cannot arrest the individual(s) who completed the recording; however, they may arrest the individuals for violating other laws. Questions? Contact the OCBA via the website at www.orangecountybar.org or call the OCBA offices at (407) 422-4537 to request an attorney or other assistance.