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When Can Oral Communications Be Secretly Recorded in Florida?

With cell phones that have the capability to record audio and video, people record other people’s communications all of the time. However, that may not be legal in Florida. There is a statute that addresses this issue, but its interpretation is not clear. The Florida statute basically says it is illegal to record another person’s conversation without that other person’s knowledge and consent. This means you cannot call someone on the phone and record the conversation without telling the other person you are recording the conversation and getting his/her agreement. There are exceptions to the rule, and it is not exactly clear how the exceptions apply.

Of course, as indicated, knowledge and consent of the other party makes recording legal. Also, there is a legal exception for law enforcement officers to intercept an oral communication when the officer is a party to the conversation and for law enforcement to record a conversation involving other people if one of the parties agrees and it is for the purpose of obtaining evidence for a criminal case.

Based on this, it is clear that the police are permitted to record a conversation between Person A and Person B if Person A knows about the recording and agrees to it and the purpose is to discover evidence for a criminal case. This is what is commonly known as a controlled call. The police often use this technique to have a trusted friend or family member who is working with the police call a suspect and try to get the suspect to make incriminating statements while they record the call. As long as the suspect’s friend agrees to the recording, it is legal even though the suspect obviously will not be told of the recording or the police involvement.

The question is whether the requirement that the recording be for the purpose of obtaining evidence in a criminal case also applies when the conversation includes the police officer rather than just two or more lay people. The statute is not clear. A recent Florida appellate court case discussed this issue. The appellate court determined that the criminal evidence qualifier does apply to recordings that involve either private citizens together or police and private citizens. In other words, the police must be able to establish a purpose of uncovering evidence in a criminal case if they are going to secretly record a conversation only involving lay people or a conversation between a suspect and a police officer.

One other factor that could alter this conclusion. The prohibition of recording oral communications only applies when the suspect being recorded has a reasonable expectation of privacy. Phone calls would almost certainly qualify. However, discussions that take place in public or with several other people around may not be protected from recording by the Florida law because they are not deemed to be private.