Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

Florida

Current status

Florida is an “all parties consent” state with regard to recording or intercepting any wire, oral or electronic communication, using the same provisions as in the federal law. Florida’s hidden camera law prohibits recording a person at a “place and time when a person has a reasonable expectation of privacy”, with emphasis on bodily exposure.

Impact of law

Florida law specifically acknowledges wire, oral, or electronic communication in its interception law. Interception of private communications of all three media is prohibited, except when all of the parties to the communication have given prior consent to such interception. Interception is defined as “acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device”. While “oral communication” must be under “expectation that such communication is not subject to interception” to be addressed by the present law, in the case of wire or electronic communication this condition seems to be implicit. It is thus legal to record oral conversations held in public places, without explicit consent, as the “expectation of privacy” condition is not met.

The video-recording law only addresses cases when the person being recorded is “dressing, undressing, or privately exposing the body, at a place and time when that person has a reasonable expectation of privacy” or filming through or under clothes “for the purpose of viewing the body of, or the undergarments worn by, that person”.

References to Physical TSCM

Florida law defines “interception” as the “acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device”. Further, “electronic, mechanical, or other device” is defined as “any device or apparatus which can be used to intercept a wire, electronic, or oral communication”, leading to a very broad perspective of the law, covering the most common physical eavesdropping devices. The law also specifically excludes tracking devices as elements of “electronic communication” and prohibits the use of pen registers and trap and trace devices.

References to Cyber TSCM

Mentioning the possibility of “other” type of acquisition as a process as well as “other” type of device used in this process, can be interpreted as an intention of the law to cover cyber media and means of interception. This interpretation is further reinforced by the definition of “content” as “any information concerning the substance, purport, or meaning of that communication”. Metadata regarding electronic communication is most likely regarded as valid content for interception.

Criminal implications

Under Florida law, violations of the interception law are considered felonies of the third degree, punishable by a term of imprisonment not exceeding 5 years[1] and fines up to $5,000[2].

Voyeurism crimes are considered either second or third degree felonies, according to the perpetrator’s age, occupation and previous convictions[3].

Civil implications

Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation Florida’s interception laws shall have a civil cause of action against the intruder and be entitled to recover relief including damages, at the rate of $100 per day of violation or $1,000, whichever is higher, plus punitive damages, attorney’s fee and other litigation costs.

Such civil action may not be commenced later than 2 years after the date upon which the claimant first discovered the violation[4]

Code excerpts

The 2014 Florida Statutes

Fla. Stat. 934.02[5] – Definitions.—As used in this chapter:

(1) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable wire, oral, or electronic communication, or other like connection between the point of origin and the point of reception […]

(2) “Oral communication” means 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

(3) “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.

(4) “Electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire, electronic, or oral communication […]

(7) “Contents”, when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.

(12) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system that affects intrastate, interstate, or foreign commerce, but does not include:

(a) Any wire or oral communication;

(b) Any communication made through a tone-only paging device;

(c) Any communication from an electronic or mechanical device which permits the tracking of the movement of a person or an object;

Fla. Stat. 934.03[6] - Interception and disclosure of wire, oral, or electronic communications prohibited.

(1) Except as otherwise specifically provided in this chapter, any person who:

(a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication;

(b) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or

2. Such device transmits communications by radio or interferes with the transmission of such communication;

(c) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection shall be punished as provided in subsection

(4).(d) It is lawful under ss. 934.03-934.09 for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception.

(4)(a) Except as provided in paragraph (b), whoever violates subsection (1) is guilty of a felony of the third degree, punishable as provided in s.775.082, s. 775.083, s. 775.084, or s. 934.41

Fla. Stat. 775.082[7] – Punishments

(e) For a felony of the third degree, by a term of imprisonment not exceeding 5 years.

Fla. Stat. 755.083[8]

Fines for designated crimes and for noncriminal violations shall not exceed:

(c) $5,000, when the conviction is of a felony of the third degree.

Fla. Stat. 934.10[9] - Civil remedies.

(1) Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of ss. 934.03-934.09 shall have a civil cause of action against any person or entity who intercepts, discloses, or uses, or procures any other person or entity to intercept, disclose, or use, such communications and shall be entitled to recover from any such person or entity which engaged in that violation such relief as may be appropriate, including:

(a) Preliminary or equitable or declaratory relief as may be appropriate;

(b) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(c) Punitive damages; and

(d) A reasonable attorney’s fee and other litigation costs reasonably incurred.

(3) A civil action under this section may not be commenced later than 2 years after the date upon which the claimant first has a reasonable opportunity to discover the violation.

Fla. Stat. 934.31[10] - General prohibition on pen register and trap and trace device use; exception.

(1) Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under s. 934.33

Fla. Stat. 810.145[11] - Video voyeurism.—(1) As used in this section, the term:

(b) “Imaging device” means any mechanical, digital, or electronic viewing device; still camera; camcorder; motion picture camera; or any other instrument, equipment, or format capable of recording, storing, or transmitting visual images of another person.

(c) “Place and time when a person has a reasonable expectation of privacy” means a place and time when a reasonable person would believe that he or she could fully disrobe in privacy, without being concerned that the person’s undressing was being viewed, recorded, or broadcasted by another, including, but not limited to, the interior of a residential dwelling, bathroom, changing room, fitting room, dressing room, or tanning booth.

(2) A person commits the offense of video voyeurism if that person:

(a) For his or her own amusement, entertainment, sexual arousal, gratification, or profit, or for the purpose of degrading or abusing another person, intentionally uses or installs an imaging device to secretly view, broadcast, or record a person, without that person’s knowledge and consent, who is dressing, undressing, or privately exposing the body, at a place and time when that person has a reasonable expectation of privacy; […]

(5) This section does not apply to any:

(b) Security system when a written notice is conspicuously posted on the premises stating that a video surveillance system has been installed for the purpose of security for the premises;

(c) Video surveillance device that is installed in such a manner that the presence of the device is clearly and immediately obvious;

(6) Except as provided in subsections (7) and (8):

(a) A person who is under 19 years of age and who violates this section commits a misdemeanor of the first degree, punishable as provided in s.775.082 or s. 775.083

(b) A person who is 19 years of age or older and who violates this section commits a felony of the third degree, punishable as provided in s.775.082 or s. 775.083 or s. 775.084

(7) A person who violates this section and who has previously been convicted of or adjudicated delinquent for any violation of this section commits a felony of the second degree, punishable as provided in s.775.082 or s. 775.083 or s. 775.084

 

 

[1] Source: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0775/Sections/0775.082.html

[2] Source: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0775/Sections/0775.083.html

[3] Source: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0800-0899/0810/Sections/0810.145.html

[4] Source: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0934/Sections/0934.10.html

[5] Source: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0934/Sections/0934.02.html

[6] Source: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String&URL=0900-0999/0934/Sections/0934.03.html

[7] Source: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0775/Sections/0775.082.html

[8] Source: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0775/Sections/0775.083.html

[9] Source: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0900-0999/0934/Sections/0934.10.html

[10] Source: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0934/Sections/0934.31.html

[11] Source: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0800-0899/0810/Sections/0810.145.html