Eavesdropping
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Introduction
This provision is the state equivalent of the federal Wiretap Act. The law prohibits the use of recordings obtained through eavesdropping in litigation where those recordings were “intercepted” without the consent of the victim.
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Text of Statute(s)
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Fla. Stat. § 943.03 – Interception and disclosure of wire, oral, or electronic communications prohibited.1
(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; or
(e) Intentionally discloses, or endeavors to disclose, to any other person, the contents of any wire, oral, or electronic communication intercepted by means authorized by subparagraph 2(a)(2), paragraph (2)(b), paragraph (2)(c), s. 934.07, or s. 934.09 when that person knows or has reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, has obtained or received the information in connection with a criminal investigation, and intends to improperly obstruct, impede or interfere with a duly authorized criminal investigation;
Shall be punished as provided in subsection (4). . . . 2) Fla. Stat. § 943.06 – Prohibition of use as evidence of intercepted wire or oral communications; exception. 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.
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Cases
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State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985)
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Procedural Posture: On appeal from the lower court’s decision excluding victim’s tape recording of his own murder.
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Law: Fla. Stat. §§ 943.03. 943.06
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Facts: Defendant entered someone’s business and shot and killed him. The victim surreptitiously recorded the entire incident without defendant’s knowledge. The recording of the conversation, as well as the sound of gunshots, and the victim’s groans, was admitted as evidence at defendant’s trial for first-degree murder. He moved to suppress the tape under Fla. Stat. § 943.06, arguing that he had not consented to the victim’s recording of their conversation.
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Outcome: The court held that the recording was admissible against the defendant because the defendant had no reasonable expectation of privacy in the victim’s place of work when he was there with the express intent of committing a crime. “A reasonable expectation of privacy under a given set of circumstances depends upon one’s actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable,” and because defendant trespassed onto the premises of another with the intent to do him harm, “the exclusionary rule of Section 934.06 does not apply.”2
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Special Notes: The concurring opinion noted that the defendant cannot borrow the expectation of privacy afforded to citizens in their own homes/offices and use it to “cloak his own communication.”3
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State v. Mozo, 655 So. 2d 1115 (Fla. 1995)
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Procedural Posture: Florida Supreme Court granted review regarding whether the nonconsensual interception of cordless phone conversations without prior judicial approval violates the Florida Security of Communications Act, Fla. Stat. Chapter 934, as well as the constitutional rights of privacy granted under sections 12 and 23 of the Florida state constitution.
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Law: Fla. Stat. Chapter 934
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Facts: Detectives intercepted numerous phone calls between defendants on their cordless home phone and unidentified individuals discussing drug deals. Detectives monitored the frequency and began taping/recording the intercepted phone conversations without a court order because they believed that the Florida statute was inapplicable and that they were entitled to intercept the calls without a warrant. The defendants were arrested for possession of cocaine, marijuana and drug paraphernalia. The trial court denied their motion to suppress the evidence, but the appeals court reversed. The Supreme Court granted review.
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Outcome: The court affirmed the lower court’s reversal of the respondents’ convictions and remanding for further proceedings because oral communications conducted over a cordless telephone within the privacy of one’s home are protected under Florida’s Security of Communications Act. The court explained that the “oral communication” protected under Chapter 934 was broadly construed, consisting of “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.”4 Because the interceptions in question originated in the defendants’ home in which they were guaranteed a reasonable expectation of privacy, the officers violated the Florida law, and the evidence should have been suppressed accordingly.
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Special Notes: Because the court determined that Chapter 934 applied, it neglected to consider the constitutional arguments and remanded the case to the trial court for further proceedings.
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O’Brien v. O’Brien, 899 So. 2d 1133 (Fla. Dist. Ct. App. 2005)
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Procedural Posture: Wife moved for rehearing following lower court ruling granting husband’s action for divorce and excluding wife’s evidence of husband’s email/online conversations with another woman captured by spyware she had secretly installed on her husband’s computer.
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Law: Fla. Stat. § 934.03
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Facts: In a contentious divorce action, the wife surreptitiously installed spyware on her husband’s computer to intercept and copy electronic communications he was having with another woman. The lower court held the evidence to be inadmissible and she appealed.
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Outcome: The court affirmed and denied rehearing, determining that the lower court had properly excluded the electronic mail and instant message recordings between the husband and another woman because his wife had illegally intercepted those communications. Although the wife argued that the communications were “stored” before being acquired because the text image was no longer “in transit” when it became visible on the screen, the court disagreed: “We do not believe that this evanescent time period is sufficient to transform acquisition of the communication from a contemporaneous interception to retrieval from electronic storage. We conclude that because the spyware installed by the Wife intercepted the electronic communication contemporaneously with transmission, copied it, and routed the copy to a file in the computer’s hard drive, the electronic communications were intercepted in violation of the Florida Act.”5
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Special Notes: The court distinguished between a spyware program that simply breaks into a computer and retrieves information, and one that is installed on a computer to copy a communication “as it is transmitted” and route the copy to a storage file in the computer.6
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Guilder v. State, 899 So. 2d 412 (Fla. Dist. Ct. App. 2005)
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Procedural Posture: On appeal from defendant’s lower court conviction of unlawfully intercepting/endeavoring to intercept an oral communication.
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Law: Fla. Stat. § 934.03
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Facts: Father of a convicted murderer believed there had been juror misconduct at his son’s trial. He sought to interview the former jurors and tried to record his conversations without the jurors’ knowledge. The government charged him with a violation of Fla. Stat. § 934.03.
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Outcome: The court affirmed the lower court’s ruling and held that the recording of a face-to-face conversation in which one is a participant without prior consent from all participants is an unlawful interception of an oral communication.
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Special Notes: The court also highlighted the strange posture of the case: “As a further note, we cannot help but express our concern that the illegally recorded conversations were of interviews conducted by [defendant], without judicial approval, of jurors who had sat on his son’s burglary trial. In this age of high-profile celebrity trials such as O.J. Simpson and Michael Jackson, media attention on all participants in such trials, including the jurors, has heightened significantly. Even where judges wisely order that jurors should not be mentioned by name, the media nonetheless focus on the racial, ethnic and gender make-up of such juries, as well as whatever background information on the jurors they might obtain. Needless to say, prospective jurors who might otherwise seek to avoid this responsibility of citizenship now have but one more reason to feel jury duty should be avoided at all costs. If the recording of conversations with would-be batterers and murderers is prohibited, surely the recordings [defendant] obtained in this case under the false principles of wearing a press badge should be dealt with every bit as severely.”7
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Practice Pointers
Nothing relevant at this time.
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Only the most relevant subsections of the statute are listed here. ↩
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State v. Inciarrano, 473 So. 2d 1272, 1275-76 (Fla. 1985). ↩
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Id. at 1276 (J. Overton, concurring). ↩
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Fla. Stat. § 934.02(2). ↩
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O’Brien v. O’Brien, 899 So. 2d 1133, 1137 (Fla. Dist. Ct. App. 2005). ↩
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Id. ↩
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Guilder v. State, 899 So. 2d 412, 419 (Fla. Dist. Ct. App. 2005). ↩