Look, in most states, only one person involved in a conversation has to be aware that the conversation is being recorded.
But in a few states such as Florida and Washington, all parties must consent in order for a conversation to be lawfully recorded.
And while there are as many as 13 states that have 2-party consent laws…
Today I want to hone in on Florida’s unusual 2-party consent law as a case study to better understand how 2-party consent works.
Why 2-party consent even exists.
And if it is simply an outdated veiw of the world!
Let’s jump in!
What is Florida’s 2-Party Consent Law?
Florida’s 2-party consent law can be found under section 934 of Chapter 934 of Title XLVII. The statute is titled “Manufacture, distribution, or possession of wire, oral, or electronic communication intercepting devices prohibited.—”
In a nutshell, the statute classifies the act of the intentional “surreptitious” recording of a conversation (wiretapping) as a 3rd-degree felony.
Exemptions to Florida’s 2 Part Consent Law
During the course of our research, we found 3 classes of exemptions to Florida’s 2-party consent law. These are:
- Class 1: Statatury Exemptions
- Class 2: Case Law Exemptions
- Class 3: Implied Consent Exemptions
Class 1: Statutory Exceptions for Florida’s 2-Party Consent Law
The first class of exemptions is statutory exemptions or exemptions found under state law.
In Florida, there are statutory exemptions for the 2-party consent law for:
- “an officer, employee, or agent of the Federal Communications Commission,” (934.04–934.09)
- “an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer”,
- Any “entity with published emergency telephone numbers”,
- “when all of the parties to the communication have given prior consent to such interception”.
Perhaps unsurprisingly. Florida’s 2-party consent law doesn’t apply to law enforcement officials collecting evidence during the course of their duty. However the law still requires atleast one of the involved partys to be aware of the recording.
However, that same exception does not apply to the public at large.
One only needs to look at James O’ Keefe with Project Veritas for an example of what failing to obtain consent from all recorded parties can look like.
On the other hand, the public always has a right to film officials during the course of their public capacity.
Let me break it down.
Class 2: Case Law Exemptions to Florida’s 2-Party Consent Law For Filming Public Officials
Additionally, a broad exception to Florida’s 2-party consent rule can be found in case law.
The right to record public officials in the course of their duty has been a long-standing exception to any 2-part consent laws, as it is seen as a “constitutionally protected activity”.
As we can see in the 11th circuit court of appeals decision Smith v. City of Cumming:
“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest”
However, this right may not extend to individuals who may be unwittingly recorded during the process of filming public officials unless…
Class 3: Implied Consent and Recording in Public Exemptions
Consent does not only arrive from verbal or expressed consent, consent can also be implied. But be forewarned as these waters can get a bit murky, and may not always be clear.
Therefore it is always safest to get verbal or written consent before recording any conversation.
For example, if you are blatantly filming a home movie on a public sidewalk and a bystander happens to walk by, their consent to being filmed has been implied. Further, if an individual approaches you while you are obviously recording, their consent may be implied. Even if they tell you otherwise.
Florida’s statute explicitly says that the “superflious” recording of an individual is unlawful.
So it is unlkiley that if you are openly recording in the public that anyone could argue you violated the 2-party consent law. Especially if you do so in the course of filming a public offical.
For example, an individual in the act of conducting a first amendment audit at a local post office who happens to film bystanders. Or an individual filming the police in the course of their duty who also records a suspect.
Finally, the implied consent doctrine creates and exemption for home or business security cameras so long as they are not hidden. And as long as cameras are not in areas such as changing rooms or bathrooms where privacy is expected.
2-Party Consent and The Case of Louis Rossman’s Florida Store Tour
Look, this article was inspired by a recent video by Louis Rossman, and a tour he did of a Florida office he was looking to lease.
And it provides excellent insight into the case study of Florida’s 2-party consent statute.
Why?
Well, Rossman has long had a real estate tour series in NY which is a one party consent state. In the series he would expose the amazing amount of lies NYC realators tell in the process of trying to rent out retail spaces.
He recently started looking into retail spaces in Florida, and posted one of his interactions with the realtor. At first the video appears to be being recorded in secret as you can’t see anything on the screen. You can only hear Rossman and the realor talking.
And, while watching the video I remembered how Florida was one of the weird states where 2-party consent is a thing.
So I made a comment on his channel simply making sure he was aware, because it’s such a strange law in my opinion.
As you can see, I admited I didn’t know very much, but his video began to peak my interested again.
Even more so when I saw the discussion surrounding the topic unfold in the comments section.
With one indivudal correctly pointing out that recording without permission in Florida could be a 3rd degree felony.
And yet another commentor saying that the 2-party consent las was a redicules law that protects dishonest people.
So my wheels were turning…
And the video played on…
About 30 seconds into the video you hear Rossman ask the realtor if he could record the tour, to which the realotor says yes.
We no longer see a blank screen, but the entrance of the office Rossman is touring.
So while Rossman did obtain consent during the recording, he did not at first appear to do so prior to the conversation begining.
Which got me wondering, when do you need to obtain consent in order to record a conversation in Florida?
Further, how can you prove you have consent if you can’t record the conversation to begin with?
When do you need to obtain consent?
Well, the law doesn’t say much other than it is lawful to intercept a conversation when “all of the parties to the communication have given prior consent to such interception“
But if consent is made prior to a recording, then there is little proof of consent. Unless the consent is re-affirmed on the recording itself anyways. So some individuals may feel it best to start the recording before obtaining consent to capture proof of consent.
A bit of a Catch 22.
So is it lawful to start a recording then obtain consent?
I asked attorney Thomas J. Simeone with Simeone & Miller, LLP, to give their opinon on the matter to help me clarify the issue.
Here was his response:
“In response to your query – the act of recording without consent is a violation of law. So, technically, you need to get consent prior to recording anything.”
“That being said, if the person who you recorded does not object afterwards, there will likely not be any legal problem. However, it is still a violation of law; just one that will likely not amount to anything. Like speeding and not getting caught. Keep in mind, however, that the person you recorded (or anyone else who knows about it) will have proof that you violated the law and could use that against you at any time.”
In the case of Louis Rossman, of Rossman Repair Group we can hear him obtain verbal consent at about the 20 second mark of the video.
While as we will later discover this is not the full context of what unfolded. It would appear from the audio alone that Rossman waited until the camera was rolling to obtain consent from the realtor.
Which as attorney Simeone points out would still be a violation of the law. Alltough one likley made in good faith to adhere with the Florida’s 2-party consent statute.
So if you aren’t technically allowed to record the consnet being obtained, how do you prove you otained it?
How do I obtain proof of consent for a recording?
So if you have to get consent prior to recording, how do you get proof of consent?
Well, as repretit1ive as it sounds, unless you get it in writing. You may have to ask twice, Attorney Simone explains:
“As for proof, the best evidence is to have the other person acknowledge that you are recording and consent to it at the very beginning of the recording. Other than that, you want some indication that the person knew they were being recorded and consented – whether something they said before the recording or during the recording. For example, if you say, “I’m recording this” at the start and they say “I don’t care” or they continue talking, that is good evidence that they consented to being recorded.”
Attorney Michael Sanchez of Mendez & Sanchez law firm in East Los Angeles, expands, saying it’s ideal to ask for consent off the record first. Then he says “ask again when you begin recording, this is gonna be your way of proving you got consent for the recording.”
But to be honest, in my opionion. Having someone consent on camera isn’t the solid proof it ought to be. Atleast if someone was going to press the issue that they didn’t consent to being filmed prior.
So your best option may be to get it in writing.
But how is that practical if you are say, on the phone?
In such an example, verbal consent is all you can get. So how do you prove you obtained consent over the phone before being able to record a verbal conversation?
It’s these sort of catch-22’s and gray areas presented by the 2-party consent law in Florida that really begin to expose the weak and uncertain foundations upon which such a doctrine stands.
Therefore one has to ask, are 2-party consent laws outdated?
Well, it’s really a tricky topic when you start to break it down.
Especially when you consider intimate relationships and the implications single-party consent states have on the release of recordings collected.
But that is a topic for another day. Further this issue illustrates a much more deeply rooted issue in modern law.
And we will get to that in a moment.
Did Louis Rossman violate the 2-party consent rule?
Well, atleast in my opinion, not in a way that violated the intention of the law.
On camera Rossman made a good faith effort to obtain consent from the realator being recorded.
While on camera he only asks after the recording started, there is more to the story. But even if the video were all there was. Rossman’s on camera attempt to proeprly garnier consent would be difficult to argue against in a reasonable court of law.
Further, as a reply in the comments from Rossman himself points out. According to Rossman he had infact obtained consent on the phone to record the building. But a different realator showed up. So he again obtained consent to film the interaction.
The complexity of what went on behind the scenes in order to make this simple video really illustrates a deeper issue with modern law.
Really, it could be argued either way in a court of law.
Weighing the Value of Florida’s 2-Party Consent Law
At the end fo the day, Florida’s 2-party consnet law leaves a lot of room for error, and places an undue burdeon on the laymen of society to comply with the law. Atleast in the modern age where cameras are literally everywhere, including our pockets.
On the other hand, 2-party consent laws can protect ex-spouses from harmful material their ex-partner may want to release to the public. Which is why the intention of an actor in any given situation is important to weigh in any criminal matter.
Intention of the Actor is Critical When Enforcing Man-made Laws
When we create “man-made” laws to improve society, rather than relying on inheirent natural law. We create laws that are imperfect, simply because man is imperfect.
While none of this is to suggest that there is NO value in man-made laws, as there is…
In order for them to be fairly applied. In a just society, we have to refer back to the fundimental truths of nature to ascertain whether an actor should or should not be punished by such man made laws.
One of those methods is looking into what the intentions of the actor was during the time they are alleged to have violated a law.
For example:
- Did the actor intentionaly violate the law?
- Was the actor acting in good faith to obey the law?
- Was the actor maliciously seeking to secretly record an interataction?
Unfortunatly, the moment we dive into man-made laws, we leave the “black and white” nature of self-evident “God-given” laws.
The Balance of Natural and Manmade Laws
We must remember to embody the Natural Law in measuring the enforcemnt of man-made laws. To ensure they can be justly enforced. Otherwise we end up with an unjust and unbalanced system.
One where for example with 2-party consent laws, a government actor of Florida does not need obey when spyng on it’s citizens. But the same government actors can enforce the very law it is exempt from on public at large. Seemingly at it’s whim.
And unfortunatly that appears to be the society we live in today. But it’s not only the fault of the government actors, but also the people. Who allowed their governemnt to act in such a way through ignorance and consent.
This ignorence. Combuned with the implied consent of the public at large. Is what makes propaganda by the government such a useful tool of control.
And exposes our personal responsibility to be properly informed…
Lest we “perish for lack of knowldege”. -Hosea 4:6