Intercepts of Communication (Wiretap)
The Florida Security of Communications Act makes it a crime to intentionally intercept a person’s electronic communications, including a telephone call, without the prior consent of all parties to the communication. These crimes are often called illegal wiretapping or eavesdropping.
Florida Statute Section 934.03 permits a private cause of action providing for a minimum of $1,000 in liquidated civil damages for an interception of a communication in violation of the Act.
In addition to the civil penalties, if you secretly record a phone call or another type of communication in violation of the statute, then you can be charged with a third-degree felony, punishable by up to five (5) years in Florida State Prison.
Attorney for Illegal Wiretapping Crimes in Florida
If you are accused of illegally intercepting any wire, oral or electronic communications or if your case involves someone else intercepting your communications, then contact an attorney at Sammis Law Firm in Tampa, FL.
We can help you figure out how the Florida Security of Communications Act might impact your criminal case, result in the exclusion of evidence in a pending criminal or civil case, or result in an award of money damages after a civil lawsuit is filed.
If you were accused of illegally wiretapping or eavesdropping, then contact us to discuss your case.
Call (813) 250-0500.
Jurisdictional Issues for Interception of Communications
In many of these cases, the person who allegedly commits the crime lives outside the State of Florida, but the alleged victims of the crime reside in the state of Florida. In those cases, the issue is whether the case can be prosecuted only in the Defendant’s home state, or whether the crime can be prosecuted in the alleged victim’s home state.
For purposes of the interception statute, the courts have wrestled with the issue of whether, for jurisdictional purposes, the “interception” occurs in Florida when the one party is in Florida but the “recording party” is in another state.
In France v. France, 90 So. 3d 860 (Fla. 5th DCA 2012), the court held that an ex-wife, who was a North Carolina resident, was subject to personal jurisdiction in Florida in ex-husband’s action for violation of Florida Security of Communications Act when it was alleged that the ex-wife from North Carolina secretly recorded phone conversations she was having with her ex-husband (who lived in Florida at the time) without his knowledge or consent in violation of Florida’s Security of Communications Act.
Penalties for Violations of Florida’s Security of Communications Act
Section 934.03(1), Florida Statutes, contains a general prohibition on the interception of any wire, oral, or electronic communications without the consent of all parties to the conversation.
Under 934.03(4)(a), the crime of illegal wiretapping or eavesdropping is charged as a felony of the third degree, punishable by up to five years in Florida Statute Prison and a $5,000 fine.
Definitions under the Security of Communications Act in Florida
Section 934.02(2), Florida Statutes, defines the term “oral communication” for purposes of chapter 934 as “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.”
“Intercept” is defined to mean 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. § 934.02(3), Fla. Stat. (2009).
Exceptions to Florida’s Wiretap Statute
Section 934.03(2), Florida Statutes, contains a list of specific exceptions to the general prohibition in section 934.03(1). One of these exceptions is for situations in which all parties to the conversation have consented to the recording. § 934.03(2)(d), Fla. Stat.
None of the exceptions allow for the interception of conversations based on one’s status as the victim of a crime when that victim is NOT acting under the direction of a law enforcement officer when the interception occurs.
Improperly Intercepted Communications Can’t Be Used as Evidence
The statute for illegal wiretapping or eavesdropping often comes up with someone tries to use the tapes in a criminal or civil case. Section 934.06 provides that the contents of any improperly intercepted communication may not be used as evidence:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter.
The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter.
This Court analyzed these statutory provisions in State v. Walls, 356 So.2d 294 (Fla.1978). In Walls, “the alleged victim of extortionary threats, electronically recorded a conversation” between himself and the defendants. Id. at 295. The Court concluded that the recording was inadmissible under section 934.06, Florida Statutes (1975).
The Court explained:
We agree with the trial court that an extortionary threat delivered personally to the victim in the victim’s home is an “oral communication” within the definition of Section 934.02(2), Florida Statutes (1975); that pursuant to Section 934.03, Florida Statutes (1975), the electronic recording of such “oral communication” without the consent of all parties to the communication was prohibited; and that Section 934.06, Florida Statutes (1975), expressly prohibits the use of such electronic recording as evidence.
The subject electronic recording did not fall within any of the situations permitting interception delineated in Section 934.03(2), Florida Statutes (1975). Section 934.06, Florida Statutes (1975), contains no exception to the prohibition against use of the illegally intercepted wire or oral communication as evidence.
Id. at 296.
Purposes of Florida Law Concerning Illegally Intercepted Communications
The courts in Florida have considered certain provisions of the Security of Communications Act (the Act) found in Chapter 934, Florida Statutes. One issue is whether pursuant to section 934.03(1), Florida Statutes, certain communications are inadmissible at trial because they were illegally intercepted.
Enactment of these prohibitions connotes “a policy decision by the Florida legislature to allow each party to a conversation to have an expectation of privacy from interception by another party to the conversation.” Shevin v. Sunbeam Television Corp., 351 So. 2d 723, 726-27 (Fla. 1977).
The purpose of Florida’s Security of Communications Act is to protect every person’s right to privacy and to prevent the pernicious effect on all citizens who would otherwise feel insecure from intrusion into their private conversations and communications. Id.
The clear intent of the Florida Legislature in enacting section 934.03 was to make it illegal for a person to intercept wire, oral, or electronic communications. It is beyond doubt that what the trial court excluded from evidence are “electronic communications.”
The term “electronic communications” is defined in section 934.02(12), Florida Statutes (2003), as “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 . . . .”
Illegal Interception of E-mails
Under Fla. Stat. § 934.01(12), e-mails constitute electronic communication. O’Brien v. O’Brien, 899 So. 2d 1133, 1135 (Fla. 5th DCA 2005). Intercepting electronic communication is illegal under the Federal Wiretap Act 18 U.S.C. § 2510 and Florida Statute § 934.03.
If electronic communications such as an email are intercepted, then it is illegal to use or disclose that communication pursuant to Fla. Stat. § 934.03. Florida law distinguishes between intercepting electronic communication with just accessing without authorization stored electronic communications. O’Brien v. O’Brien, at 1136-1137.
Intercepting electronic communications is done by contemporaneously copying the communications while they are transmitted. Id. For this reason, e-mails are rarely intercepted in violation of Fla. Stat. § 934.03. Id.
If the electronic communication was accessed without authorization and obtained while in electronic storage then it is still unlawful pursuant to Fla. Stat. § 934.21. Nevertheless, the separate section of the law does not make it illegal to use or disclose the communication accessed and obtained by another. For these reasons, accessing stored e-mails without authorization may be illegal pursuant to Fla. Stat. § 934.21, but then receiving that communication and disclosing it is not. Id.
Under the Florida Act in § 934.06 wire and oral communications that have been intercepted illegally are inadmissible into evidence if it would then be a crime to disclose that same communication but:
- the evidence be intercepted to be inadmissible;
- the evidence must be illegal to disclose.
The statute specifically omits electronic communication from this rule of exclusion.
In many cases, since the communication is electronic, it is not specifically excluded from admissibility. This electronic communication from storage was also not intercepted and is thus not illegal to disclose.
For this reason, no specific statute precludes the admissibility of the evidence. Admission of evidence is still a matter within the discretion of the court. O’Brien v. O’Brien, at 1137 (citing Globe v. State, 877 So. 2d 663, 672 (Fla. 2004)).
In many cases, the e-mails are accessed from a stored location without authorization. For this reason, e-mails were obtained illegally pursuant to Fla. Stat. § 934.21. Nevertheless, the emails were not obtained using any type of software that intercepted the messages contemporaneously to the transmission.
For this reason, these types of e-mails are not illegal pursuant to Fla. Stat. § 934.03. In this circumstance, the e-mails can be received by defense counsel and then disclosed to the State Attorney’s Office and the Court. The Court can then determine whether the evidence will be admissible at trial.
This article was last updated on Wednesday, March 11, 2020.
