It is a crime in Florida to record a conversation unless all parties taking part in the conversation know that they are being recorded. It is also a crime to place a secret tracking device on a vehicle.
Privacy laws impact everyone who utilizes a recording device in Florida whether they use a smart phone, computer or other electronic equipment capable of recording a conversation. With today’s smart phones, any conversation can be recorded with the touch of a button.
Businesses that record telephone conversations comply with Florida law by announcing at the beginning of a call that the call is being recorded or monitored. A person who continues the call after that disclosure cannot contend that he or she did not know of the recording.
In order for the recording of a conversation to violate Florida law, it is necessary that the person being recorded has an expectation that the communication is not being recorded. Therefore, a conversation at a public meeting or an electronic communication to the public, in general, would not be subject to an expectation of privacy.
State laws vary concerning the recording of conversations. Florida’s law, like many other states, requires that all parties to the conversation must have knowledge of the recording. A large number of states do not require that all the parties have knowledge of the recording as long as the recording is made by one of the individuals taking part in the conversation. Florida does allow a participant in the conversation to secretly record with the approval of law enforcement. Police may obtain an order to tap a phone, however, there are specific legal requirements which must be met.
Illegal recording of a conversation is a felony or a misdemeanor depending upon several factors. For instance, the recording is a felony if made for the purposes of direct or indirect commercial advantage, private commercial gain, for any illegal purpose, or for a tortious purpose such as intentional interference with a business relationship. It is also a crime to utilize an illegal recording made by someone else. In Florida, recordings made in violation of law may not be used as evidence in any trial, hearing, or other legal proceeding.
A person whose conversation or electronic communication is recorded in violation of Florida law has a right to sue the person or company that records, discloses, uses or causes any person to record or use the illegally recorded communication. The aggrieved person may bring a lawsuit within two years after a reasonable opportunity to discover the secret recording. The plaintiff can seek damages caused by the recording but damages will not be less than $100 a day for each day of the illegal recording or $1000, whichever is higher. The person recorded also may sue for punitive damages and attorney’s fees.
Another example of Florida’s concern for the right to privacy is seen in a Florida law passed in 2015. The 2015 law makes it a crime for a person to place on or in a vehicle, a tracking device or tracking application whose purpose is to reveal a vehicle’s location or movement. This law has many exceptions including the right of an owner or lessee to place a tracking device or application on the vehicle. Another exception allows a parent or legal guardian of a minor to place a tracking device or tracking application on the minor’s vehicle.
Florida’s laws concerning recording conversations and use of tracking devices on vehicles have many exceptions which are too numerous to include here.
By Mark L. Horwitz
Criminal Defense Attorney
Law Offices of Horwitz & Citro, P.A. Offices in Orlando and Tampa