Many times, clients come into our office with audio recordings of calls or conversations that they want to use as evidence in their case. In most instances, I have to advise our clients that while the recordings may be relevant and useful to their cause, they may have actually committed a crime by recording the calls illegally. One of the practice areas of our firm is focused on is consumer rights and prosecuting companies that violate the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA). When we have a client who is being harassed by a debt collector and wants to make an audio recording of that debt collector’s call, we must inform our clients of the laws that govern when and how it is lawful to record a call. By legally recording the calls, we can obtain and secure very useful and compelling evidence to assist our clients in their cases.
Under Florida law, in most circumstances all parties to the call must consent to the recording of the call in order to make it legal to record the call. This type of restrictive law is sometimes referred to as a “two-party consent” law but in in reality, Florida has an “all-party consent” law in place. Chapter 934 of the Florida Statutes governs the Security of Communications and Surveillance Operations within the State of Florida. Florida Statute § 934.03 is the State of Florida’s primary wiretapping law, which governs the interception and disclosure of wire, oral, or electronic communications. Florida Statute § 934.03(1) lists what acts are illegal, including but not limited to the use of any electronic device to intercept an oral communication or phone call. If you violate the statute, you are committing a crime. Pursuant to Florida Statute § 934.03(4), the crime could be a third degree felony, which is usually punishable by up to five years in state prison. In addition to the criminal penalties for illegally recording a call, you may also be liable for civil fines and penalties pursuant to Florida Statute § 934.10.
So how can you avoid committing a crime if you want to record a call in Florida? Within Florida Statute § 934.03, there are many exceptions to the prohibition of recording or “intercepting” calls. Most of the exceptions are contained within Florida Statute § 934.03(2). Of particular importance to our clients and the readers of this blog will be Florida Statute § 934.03(2)(d) which provides as follows: “[i]t is lawful under this section and ss. 934.04 – 934.09 for a person to intercept a wire, oral, or electronic communication when all parties to the communication have given prior consent to such interception.” So in the case of a debt collector calling you, as long as you advise the person who calls you that you are also going to record the call and that by continuing to remain on the call they are consenting to the recording, the call can be recorded legally.
In addition to the specific exceptions carved out in Florida Statute § 934.03(2), the definitions of terms contained in Florida Statute § 943.02 also allow for citizens to record public speeches and public communications because the statute defines an “oral communication” to be “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.” This is the “expectation of privacy” exception to the general rule against the recording of calls and audio.
Apart and distinct from live conversations being recorded are voicemails left for you on your home phone or cellphone. Because the caller clearly knows they are being recorded and there is no other party to the call, voicemails are always legally recorded and can be used without threat of prosecution. This is true under both Florida law and federal law.
Federal law is less restrictive than Florida law when it comes to the recording of phone calls. Under federal law, 18 U.S. Code § 2511 defines what recordings are legal and illegal. Specifically 18 U.S. Code § 2511(2)(d) makes it clear that “[i]t shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.”
Under both Florida and federal law, it is almost always illegal to record a phone call or private conversation if you are not a party to that call or private conversation. I should also note at this time that under Florida law, law enforcement officers are also exempt from the prohibitions laid out in Florida Statute § 934.03(1). In a future blog, I plan to discuss the legalities of pen registers and wiretaps commonly used by law enforcement agents during their investigations. If you are considering whether you are going to attempt to record a telephone call or conversation, you should consult with an attorney before doing so.