Question on FL audio recording laws for in-home cameras

[Jim 917]

What is the name of your state? Florida

Hi, I have a special needs child that receives therapy in my home. The area where the therapy is given is an upstairs loft / den and has multiple cameras all in plain site (2 in recessed light fixtures and one resting on a coffee table). The therapist has also been made aware there are multiple cameras in the room (although I never had her sign a consent, and there are no signs indicating surveillance).
It has been discovered that she is mistreating my son and the company where she works is asking for video clips for proof. The video records both audio and video. Am I permitted to send them these clips with the audio? It seems Florida law as it relates to audio recordings with the two party consent is not as straight forward as video.
Thanks so much for the help!

 

[Ohiogal]

What is the name of your state? Florida

Hi, I have a special needs child that receives therapy in my home. The area where the therapy is given is an upstairs loft / den and has multiple cameras all in plain site (2 in recessed light fixtures and one resting on a coffee table). The therapist has also been made aware there are multiple cameras in the room (although I never had her sign a consent, and there are no signs indicating surveillance).
It has been discovered that she is mistreating my son and the company where she works is asking for video clips for proof. The video records both audio and video. Am I permitted to send them these clips with the audio? It seems Florida law as it relates to audio recordings with the two party consent is not as straight forward as video.
Thanks so much for the help!

You may have broken the law. You cannot record audio without consent.

 

[adjusterjack]

It seems Florida law as it relates to audio recordings with the two party consent is not as straight forward as video.

This may be a nitpicking technicality, and I haven't researched any case law, but it appears that a literal reading of the statutes does not actually require "consent."

Florida statute 934.03 Interception and disclosure of wire, oral, or electronic communications prohibited.—
(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;

Statutes & Constitution :View Statutes : Online Sunshine (state.fl.us)

934.02 Definitions.—As used in this chapter:
(2) “Oral communication” means 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.
(3) “Intercept” means 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.

Statutes & Constitution :View Statutes : Online Sunshine (state.fl.us)

You may still be on thin ice if prosecuted. A camera in plain sight doesn't reveal that it's recording audio with the video.

If the video portion clearly reveals the "mistreatment" then I suggest you use video editing software to remove the audio.

If you want to use the audio in addition to the video, I suggest that a consultation with a criminal defense attorney is appropriate.

 

[Zigner]

This may be a nitpicking technicality, and I haven't researched any case law, but it appears that a literal reading of the statutes does not actually require "consent."

Florida statute 934.03 Interception and disclosure of wire, oral, or electronic communications prohibited.—
(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;

Statutes & Constitution :View Statutes : Online Sunshine (state.fl.us)

You need to keep going to para 3(d):

(d) It is lawful under this section and ss. 934.04-934.09 for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception.

 

[Taxing Matters]

You need to keep going to para 3(d):

(d) It is lawful under this section and ss. 934.04-934.09 for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception.

The OP stated that he/she has not yet asked for consent to record audio and apparently has not disclosed to the care giver that the cameras that are visible record audio as well the video. I don't know if Florida law provides a presumption that if a person sees a camera that the person also know or should know audio is being recorded. That's something to discuss with a Florida criminal law attorney. The OP can provide the consent to recording on behalf of the child, but that doesn't cover the care giver. However, there may be case law that allows for audio recordings that are evidence of potential criminal activity. That too is something I recommend the OP discuss with a Florida criminal law attorney.

In the meantime, I hope that the OP has terminated the care giver's employment.

 

[Zigner]

The OP stated that he/she has not yet asked for consent to record audio and apparently has not disclosed to the care giver that the cameras that are visible record audio as well the video. I don't know if Florida law provides a presumption that if a person sees a camera that the person also know or should know audio is being recorded. That's something to discuss with a Florida criminal law attorney. The OP can provide the consent to recording on behalf of the child, but that doesn't cover the care giver. However, there may be case law that allows for audio recordings that are evidence of potential criminal activity. That too is something I recommend the OP discuss with a Florida criminal law attorney.

In the meantime, I hope that the OP has terminated the care giver's employment.

I agree with you. My post was in response to adjusterjack's post stating that consent was not a factor.

 

[quincy]

Although the recording should be reviewed by an attorney in Florida, the following case speaks to audio-video recording without consent in Florida and refers to Florida statute 934.03.

Smiley v. State, 279 So 3d 262 (Fla. Dist. Ct. App. 2019):
https://casetext.com/case/smiley-v-state-2010

The Smiley court in their decision quoted State v. Inciarrano, 473 So.2d 1272, 1275 (Fla. 1985):

“The statute protects only those ‘oral communications’ uttered by a person exhibiting an expectation of privacy under circumstances reasonably justifying such an expectation.” (emphasis in original)

I think there can be shown that the therapist did not have a reasonable expectation of privacy under the circumstances described, especially since she had previously been made aware of the cameras.