Is It Illegal To Record Someone Without Their Knowledge?

By: James Davis

Say you suspect your girlfriend of cheating on you. To confirm your suspicions, you might want to install a video or audio recording device in her bedroom the next time you are over visiting. But be warned: doing so could be illegal.

The issue is somewhat nuanced.  Certain types of recordings are perfectly legal and other types are considered an invasion of privacy, or worse. There are two relevant criteria in these cases, sexual intent and the person’s expectation of privacy.  Understanding whether a private recording may lead to criminal charges requires consideration of those two factors.

Sexual Intent
First, is there any lewd (or sexual) intent on behalf of the recorder?  If so, then the person making the recording may be in violation of the anti-voyeur statute. Someone taking these types of recordings may be in violation of the statute if:
–       The recording is made without the person’s knowledge who is being recorded,
–       The person recording has lewd intent,
–       The person who is being recorded has a reasonable expectation of privacy where they are located.

This statute acts to protect people’s reasonable expectation of privacy of a sexual nature. For example, it might be difficult to prove that someone had a reasonable expectation of privacy on their way into the grocery store, even if they were wearing a short skirt. But, it would be an easier case to prove that a woman had a reasonable expectation of privacy in a department store dressing room.

Expectation of Privacy
Even if there is no sexual intent on the part of the person making the recording—as is the case with the concerned boyfriend—it still may be illegal to record someone without their knowledge. Much of the determination depends on what is being recorded, where they are being recorded, and if there is any intent to use the information for personal gain. So, for example, if you are filming two people in a park having a conversation as part of your tour of the city, you are not violating any law. But if someone decides to film those same people as they talk about their finances, account numbers, etc., and that person is hoping to use the information to steal their identity, there may be a violation of the law.

It should also be noted that in the state of Florida, a phone call or other form of communication between persons cannot be recorded without the consent of all parties involved.  Title XLVII, Chapter 934 of the 2009 Florida Statutes states that recording a conversation without consent is a third degree felony offense, which could result in fines and/or jail time.

If you have been accused of a crime which involves invasion of privacy it is critical to act quickly. Do not wait until charges are formally filed.  The unknowing defendant who represents himself is often taken advantage of by the system; don’t let that happen to you; contact Attorney James Davis immediately.

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