The “Two Party Consent” State and its Exceptions

Privacy is a fundamental right as an American citizen. Our Constitution, our federal laws, and our state laws have been put into place to protect individual privacy rights from interference either from the government or from other private citizens. Technological advances have created incredible tools and instruments to make our lives easier, but many of these tools may alter or affect individual privacy rights directly or indirectly, leaving the individual wondering what recourse he or she may have when privacy rights have been impacted. If you have been arrested for your involvement in wiretapping or illegally recording another without his or her consent, please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.

Expectation of Privacy: Objective and Subjective

In the United States, the expectation of privacy is understood through objective or subjective lenses. There is generally a two-part test when determining whether someone’s fundamental privacy rights have been impacted:

  • First, whether the person objectively had a reasonable expectation of privacy and
  • Second, whether the person subjectively believed he or she had a reasonable expectation of privacy.

In other words, if you are out in public, objectively a person does not have a high expectation of privacy because he or she is out in the open for all to see and hear. A reasonable person, in this case, would subjectively believe that his or her expectation of privacy is low. In this way, the objective and subjective perspectives agree. However, if you are on the phone in your home, your objective and subjective expectations of privacy are higher because you are in your own personal space, and the home is considered a fundamental privacy space, generally.

Florida’s Two Party Consent Law

Each state may decide, when it comes to wiretapping or recording a conversation, whether or not the state will require a one-party consent or a two-party consent. Florida is a two-party consent state; this means that in Florida if you do not get consent from ALL parties to be recorded or wiretapped, the recorder or tapper could be criminally charged for unlawfully recording a telephone conversation. In particular, if the conversation or communication is to be used in court, all parties must have consented to the recordings or else the communication or conversation is inadmissible as evidence.

Noted Exceptions to the Law

There are a few noted exceptions to this law. First and foremost, two-party consent refers specifically to an incident in which there is a reasonable objective and subjective expectation of privacy: for example, where a person is in his or her home and/or on the phone with another person discussing a private matter. However, if the same sensitive conversation is taking place in a public space, such as a café, where there are many people present and nearby, the expectation of privacy is limited, if not altogether lost. In the event that there was no reasonable expectation of privacy and the communication is recorded, the Court may find that no consent was needed and the recording may be admissible as evidence.

A second exception to the law refers to the right of a minor to record any communication where the child is a party to the communication and where there is a reasonable expectation that the other party to the conversation or communication is admitting through an oral statement that he or she intends to commit, is actually committing, or has committed an illegal sexual act or an illegal violent act against the child. This is to help protect children who intend to record their abuser and assaulter so that the evidence may be used to convict him or her, and stop the violence.

Please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.