Monday, July 27, 2009

Recording Telephone Conversations and Communications in Florida - What is the Deal?

Many Florida and Jacksonville lawyers are asked about whether it is illegal to record telephone calls. Florida Statute section 934 governs the recording of electronic communications in Florida. It’s extremely important to seek legal advice from an attorney if you are considering recording telephone calls or oral communication between parties. This article does not serve as legal advice.

The following was posted on www.floridacriminallawyerblog.com and I thought it was worth re-posting.

In Florida, generally all parties must consent to the recording or the disclosure of the contents of any wire, oral or electronic communication. This means phone calls! Recording, disclosing, or endeavoring to disclose without the consent of all parties is a felony, unless the interception is a first offense committed without any illegal purpose, and not for commercial gain. Florida Statute section 934.03.

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a "reasonable expectation of privacy" in that communication. However, this oral communication must be one that is made in a setting in which a person does not have a “reasonable expectation of privacy.” There are various circumstances when a person may not have a reasonable expectation of privacy. See also Florida Statute section 934.02 for the definition of “oral communication.” See also Stevenson v. State, 667 So.2d 410 (Fla. DCA1996); Paredes v. State, 760 So.2d 167 (Fla. DCA 2000).

In Cohen Brothers, LLC v. ME Corp., S.A., 872 So.2d 321 (Fla. 3rd DCA 2004), the District Court of Appeal for the Third District of Florida held that members of a limited liability company’’s (LLC) management committee did not have a reasonable expectation of privacy with respect to participation in telephone conference calls with other committee members to discuss continued financing of the LLC, and thus could not hold the committee members liable for recording the conference calls.

There are also cases which state the recording of a phone call, even without the consent of the party, may be admissible in Court if the recording involved the planning or perpetrating of a crime. This does not mean the recording was legally made by the person recording the call. The Courts have merely said that “right to privacy” concerns are outweighed by the fact that the person is planning to commit a crime and the recording may be admissible. In State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985), the Florida Supreme Court held that there may be circumstances under where a reasonable expectation of privacy will not be justified. The concurring opinion points out that the majority opinion holds that if someone is committing a crime they do not have a privacy right. This particular defendant, Inciarrano, went into someone's business and shot and killed them and the entire event was being recorded by the victim without the defendant’s knowledge. The Court held the tape to be admissible at trial which led to the defendant’s conviction for murder.

The Eleventh Circuit federal appellate court that governs federal law in Florida has held that because only interceptions made through an ““electronic, mechanical or other device”” are illegal under Florida law, telephones used in the ordinary course of business to record conversations do not violate the law. The court found that business telephones are not the type of devices addressed in the law and, thus, that a life insurance company did not violate the law when it routinely recorded business-related calls on its business extensions. Royal Health Care Servs., Inc. v. Jefferson-Pilot Life Ins. Co., 924 F.2d 215 (11th Cir. 1991). However, this is federal law. Florida state law makes it illegal to record conversations without all parties consent; this is exactly why many companies will announce on their prerecorded messages that "this call may be monitored or recorded for training purposes" when you first connect with their company telephone lines.

Anyone whose communications have been illegally intercepted may recover actual damages or $100 for each day of violation or $1,000, whichever is greater, along with punitive damages, attorney fees and litigation costs. Fla. Stat. ch. 934.10. Each recorded phone call made illegally that is a felony is punishable by up to five years in prison and a maximum $5,000.00 fine.

Basically, in Florida, the bottom line is phone calls cannot be recorded without the permission of all parties. There are very few limited exceptions with almost no exceptions for the lay public. One exception under the statute, is that police may make recorded phone calls without obtaining the permission of the person called. Often Florida law enforcement officers will have people who are victims or cooperating witnesses make phone calls to suspects to extract confessions or admissions from them, all the while the call is being recorded and the witness is being prompted what to say by the agents. This type of admission is admissible in Court and can be extremely critical evidence to aid the prosecution.

Every state has specific laws applying to the recording of telephone calls. What is the law in Florida is not the law in other states. For example, in Georgia, the law expressly provides that it does not prohibit a person who is a party to a conversation from recording, and allows recording if one party to the conversation has given prior consent. Ga. Code Ann. §§ 16-11-66. See also Malone v. State, 541 S.E.2d 431 (Ga. Ct. App. 2000). However, the divulging of these conversations may be illegal.

Disclaimer: every state has different laws pertaining to the recording and dissemination of recorded phone calls. If you are thinking of making recordings, it is strongly advised that you retain an attorney in your area to seek advice before doing so. Nothing said in this brief article can be relied upon as legal advice. My intent in writing this was merely to serve as a guidepost for folks to understand how complicated the laws are surrounding this area of the law, provide some information to the public so people would not be unwittingly committing crimes and impress upon folks how serious a law violation it may be to record calls without the other person’s knowledge.

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