Posted On: June 13, 2013 by Jim Jenkins

Can You Record Without Someone Knowing -- No, But Maybe?

What used to be clear is no longer so. Chapter 934 of the Florida statutes prohibits "any person" from recording oral communications without consent and disclosing such recordings. Simply put, you could not record a conversation with someone if they didn't okay it first. That was, until recently. On June 7, 2013, the Second District Court of Appeals ruled in McDade v. State that such may not always be the case. The court held, based upon the 1985 Florida Supreme Court opinion in State v. Inciarrano, that a citizen does not have an expectation of privacy in what they say if the content of the statement is something that society is not willing to protect.

Mr. McDade was recorded by his step-daughter in the bedroom of his home without his knowledge. The court wrote that "though he did not use sexually explicit language, he appeared to be asking her to have sex with him." The Second District found that society would not accept that there was a privacy interest in the comments made by Mr. McDade and therefore, no law was broken. Whether you have a right to privacy depends on "what" you say.

So what does this mean? The ruling of the Second District now requires that individual judges across the state determine what society thinks is acceptable. Courts will decide on a case-by-case basis if the "content" of a statement is against societal standards. If it is, no law is broken and the recording can be used against someone in court. If it is not, then the person recording has committed a felony and the statement can't come into court. This will be a difficult rule for courts to apply consistently across the state. What is acceptable by society in Miami may not be acceptable in Pensacola.

The problem is this -- a citizen does not know if they can record a conversation until it's over.

The dissenting opinion, written by Judge Villanti, found that the Florida Supreme Court in Inciarrano said that whether someone had an expectation of privacy in their conversation was based upon "where" they made the statement, rather they "what" they said. While not condoning the advances made by Mr. McDade, Judge Villanti acknowledged the strong expectation of privacy in your own home that Florida law has always recognized. Because McDade made the statements in his own house, despite what he said, he had an expectation of privacy. Finally, Judge Villanti also concluded that "societal standards" should be determined by the legislature, not the courts. If exceptions to the rule are to be carved out, the legislature should be the one to do it.

Chapter 934 allows law enforcement to secretly record a suspect; it also allows an individual citizen to record a suspect if they are working with law enforcement. What is has never allowed was a private citizen, on their own, wearing a wire and recording a conversation in a private setting without you knowing.

The Second District has asked the Florida Supreme Court to review their ruling in McDade. Hopefully we will know, sooner than later, what are privacy rights are in Florida.

We post these blogs to help keep you informed about your rights. Please contact the Law Offices of M. James Jenkins & Associates, P.A. -- we will stand strong with you in your toughest times.