Cell phone usage worldwide continues to reach staggering proportions, with no signs of a slump any time soon. The following post breaks down the complexities of using mobile phones and recording private conversations. Is it legal to record a conversation on a mobile phone in Florida?
We look at Federal legislation and compare the statutes to Florida and how these regulations impact everyday life. We will answer several questions, What are the Federal Wiretapping Laws? Differences between eavesdropping and wiretapping? Where does Florida stand on these critical issues?
Over fifty years ago, April 19, 1965, Charles Moore, Chairman of then-fledgling Intel, coded the electronics industry. Moore’s Law stated; the number of transistors on a chip would double each year, meaning computer processing speeds double every 12 months.
Silicon chips are the bedrock of everything electronic, allowing companies to make a mobile phone faster, cheaper, and powerful.
Federal and state regulations controlling the recording of a confidential conversation are framed as eavesdropping, wiretapping, or intercepted communication.
“The issue of illegal recording comes up frequently in the context of family law cases. Because of that, we have drafted this informational article to educate the public, including our potential client.”
Federal Wiretapping Laws
The primary goal of federal wiretapping laws is to preserve an individual’s right to privacy in communications with others. In a scenario where both federal and state law is being abused, state law would be pre-empted by the federal case.
On the other hand, in instances where state laws offer citizens a greater degree of privacy than what is stipulated in federal law, state provisions would be upheld.
The FBI and US Attorney’s Office enforce Federal Wiretapping Laws. It is a Federal crime “to wiretap or to use a machine to capture the communications of others without court approval unless one of the parties has given prior consent.”
Protecting individual rights in confidential conversations has become a thorny issue. Also cross border communications and which state has jurisdiction has placed the Federal Government at odds with states.
Another argument that has raised its ugly head is the use of smart home devices.
Amazon Echo recorded the private communication of a Portland woman and delivered the conversation to a saved contact on the device. Federal Wiretap Laws make it a crime to intercept private communications. The individual on the other end of that recording was one of her husband’s employees.
Moore’s Law continues to evolve and with it the constitutional interpretation of electronic privacy.
Exceptions to the Federal Wiretap Act one-party consent
- Law enforcement
- Communication service providers (if the recording protects property or rights)
- FCC for enforcement
- Surveillance under the Foreign Intelligence Act, 50 USC §§ 1801 to 1813
- Individuals, if they identify the source of harmful electronic interference
- Court order
Eavesdropping vs. Wiretapping
It is essential to know the meaning of a few terms before going any further.
Wiretapping is a surreptitious means of intercepting, monitoring, and recording conversations of individuals. Wiretapping is electronic eavesdropping by overhearing a conversation with a concealed listening device connected to a transmission line. (in other words, your cell phone is connected to a mobile network)
Eavesdropping is an electronic means to overhear, record, and transmit any part of the private conversation of others without their consent.
Intercepted Communication is the acquisition of any conversation through the use of an electronic or mechanical device.
Consent is at the heart of many federal and state cases and is a point of contention when recording a conversation on a mobile phone in Florida. Consent is considered explicit and freely given permission. Implied consent considers all parties are clearly notified that the conversation is being recorded and they engage anyway. (how many times have you heard; this call is being recorded for training purposes)
Florida Is a Two-Party Consent State
Federal Wiretapping Laws are constructed as a single consent state; hence a single party is all that is required to record your grandmother’s private conversation. It is called one-party consent under Federal statutes.
Florida is a two-party consent state, meaning all parties to the conversation must have clear knowledge the conversation is being recorded.
Secretly recording a conversation in Florida is considered a 3rd-degree felony. Yes, FELONY!!! Florida is a two-party consent state; it is a crime to intercept or record a wire, oral or electronic communication (hello, mobile phone) without each party’s freely given permission.
Each state has its own laws for recording private conversations. Thirty-eight states plus the District of Columbia are considered one-party consent states, with the remainder as two-party consent.
The complexities of recording private conversations across the United States are fascinating, with each state having unique interpretations of the law. As an example: Hawaii is a single consent state but requires two-party consent if the device is in a private place.
Consent Is a Key
Federal Wiretapping Laws are constructed as a single consent state; hence a single party is all that is required to record your grandmother’s private conversation. It is called one-party consent under Federal statutes.
Let us assume your grandmother calls each day and gives you a different delicious recipe each day, and you record each conversation without her knowledge. At the end of the week, each recording represents a single offense, comprising seven distinct felony offenses for recording those conversations without her consent.
Each violation is punishable by up to five years in prison and a $5,000.00 fine. Ouch!
Taking this illustration a bit further, you head down to the bowling alley and share your grandmother’s recipes with all your buddies.
Each time one of the bowling buddies shares the secret recording, they have committed their own separate felony offense. This example takes the Florida Stat. 934.03 to the extreme. However, Florida residents need to be mindful of the new paradigm in mobile technology.
Exceptions to Florida’s Wiretapping Laws
Taking Moore’s Law into consideration, technology in general and cell phone innovation specifically are growing faster than our laws can keep up.
Every state has an extensive list of exceptions to its wiretapping laws. One of the most prominent in Florida is the exception. Children under the age of 18 are allowed to secretly record oral conversations if they are being physically or sexually abused.
Expectation of Privacy
If there is no expectation of privacy, recording the conversation is allowed. As an example; If the conversation happens in a public place where the person can be overheard, the statute does not bar it. In contrast, recording your grandmother in her home is likely not allowed.
Recording conversations in the workplace is another complicated matter for the Florida courts, which are split on the issue. In the workplace, where does someone have an expectation of privacy?
In 2011, Carletha Cole was arrested for secretly recording conversations in the then Lt. Governor’s Office and passing them along to Florida Times-Union. The questions arising from this case are interesting, such as, what and where constitutes a public building?
Another exception to the rule is Florida courts generally allow the use of recording devices(cell phones) in the courtroom. If you are attending a public meeting of a governmental body, open to the public, sound and video are allowed.
Privacy
Can you sue someone for recording a private conversation without your consent? If a 3rd-degree felony is not enough, recording a private conversation is considered a gross infringement on your privacy.
The glorious thing about America, particularly Florida, is the right to privacy is staunchly upheld and defended in the courtroom. We live in a fascinating digital world with an exciting environment everywhere you turn. Before you whip out that phone and start recording, hopefully, you think twice. Contact Hunter Law today to find out more.
Additional information regarding the use of recordings in Family Law:
Can I Use Recordings of My Spouse for Divorce Evidence?
Can I Use Recordings of My Spouse for Child Custody Evidence?
