Audio Recordings

Frequently I will have family law clients ask me whether they can legally make and use in court an audio recording of another party for use in legal proceedings. The short answer to this question is “no”, not without the other party’s express consent to be recorded. Florida Statute 934.03 is Florida’s wiretapping law. Florida is a so-called “two party consent” state. What this means is that all parties to the communication must consent to being recorded in any wire, oral, or electronic communication. It is a crime in Florida to record a communication with the consent of all parties involved. There is, however, an exception in that communications that take place in situations where the participants do not have a “reasonable expectation of privacy.” Typically, you do not have a reasonable expectation of privacy when the statements are made in a public place where they may reasonably be overheard by others in the vicinity. Another exception is for voicemail messages. Such recordings are not subject to the wiretapping statute since they are recordings left that can be heard by anyone and the person making the statement typically does not have an expectation that the message will not potentially be heard by others. Remember when considering making an audio tape of a conversation, recording a communication without consent can not only subject the maker to criminal prosecution, but also a civil lawsuit for damages as well.