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Ask Thomas Swartz Your Own Question

Thomas Swartz
Thomas Swartz, Attorney
Category: Legal
Satisfied Customers: 2796
Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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I have a neighbor who has audio recording devices mounted to

Customer Question

I have a neighbor who has audio recording devices mounted to the outside wall of his townhome. he can hear all conversations both inside (if windows open) and outside of the entire complex (16 units/3 buildings). This is in florida. Is this ok? He has used audio to try to get people in trouble for revving engines etc. Its just creepy but is it legal. He has never told anyone he does this and there are no signs saying that he is video and audio tapping. This is in florida.
Submitted: 1 year ago.
Category: Legal
Expert:  Thomas Swartz replied 1 year ago.
Hello JACUSTOMER,

No it is not legal. Under Florida's eavesdropping or wiretapping law, it is a crime to intercept or record a "wire, oral, or electronic communication" unless all parties to the communication consent to the recording. This law is found in Florida Statutes § 934.03. Under this law it would not be illegal to simply record sounds such as engines, dogs barking etc. But it is definitely against the law to record conversations between two or more people unless all of those people consent to the recording.

I hope this answers your question.

Thomas
Customer: replied 1 year ago.


I knew this but this is a public place. If it were that easy I could call the cops and they would charge him. The police have actually used his audio against people.

Expert:  Thomas Swartz replied 1 year ago.
It does not matter if it is in a public place. The statute does not provide an exception simply because a conversation takes place in a public place. In addition, there is also a provision of Florida law which makes it improper to use intercepted communications in any trial, hearing or any proceeding against anybody. This is Florida Statutes § 934.06. As far as the police are concerned, it may be necessary to bring this to the attention of local prosecutors instead of the police. The police may not know the full implications of § 934.03. And any body against whom improperly intercepted communications are used, would be able to raise § 934.06 as a defense.

Thomas
Customer: replied 1 year ago.


thanks. it seems this is not black and white. I have been told it only applies to places that you can "reasonably expect privacy". the argument would be that anything outside you cannot expect privacy.


 


I have read the statute and it sounds great but obviously law enforcement nor the states attorney who filed the case on behalf of law enforcement sees this as you do.

Expert:  Thomas Swartz replied 1 year ago.
Reasonable expectation of privacy would apply to video recording. But to my understanding it does not apply to interception of communications between person where you always have an expectation that the conversation is private, and under Florida law as stated in the statute all persons to a conversation must consent to it being recorded.

And it may be the case that in the particular instances in which evidence was used, it may not have been raised as a defense by the person's attorney. It would have to be raised by the defendant.

Thomas
Customer: replied 1 year ago.

SO In ThisCaseVideo IsOk

Expert:  Thomas Swartz replied 1 year ago.
Yes. You are basically allowed to video tape anything which happens in public. I should have made clearer that there is a distinction between recording conversations between people, and video tapping things which happen in public. Prohibition of video tapping is only disallowed where you have a "reasonable expectation of privacy" such as inside a home, a public bathroom, changing room etc. And the applicable Florida statutes dealing with video tapping are found in Florida Statutes § 810.14, and § 810.145.

Thomas
Customer: replied 1 year ago.

ok thanks. one last thing. if this person is taking video/audio of someone and the camera is pointing at your front door and where he can record into your open garage area.....are those places where "reasonable privacy" would be expected? I would argue yes.


 


thanks again

Expert:  Thomas Swartz replied 1 year ago.
If the video camera is recording material in an interior closed portion of your home I would agree with you. There is no doubt that there is a reasonable expectation of privacy.

If a door (such as a garage door) is open and the video camera is recording things, then I think it would be a very close question, which a fact finder, such as a jury or judge, would have to decide whether your reasonable expectation of privacy was violated. Such a fact finder would have to look at other pertinent facts such as: (1) did the video camera zoom in/focus after the door was opened, (2) how long the door was open; (3) how long the camera was trained on the area etc.; (4) what activity is taking place in the garage (for instance if you are building a bomb in your garage, I think it would be hard to make an argument that you have a reasonable expectation of privacy if your garage door is open).

Thomas
Customer: replied 1 year ago.


the camera is "fixed" 24/7 at my front door.

Expert:  Thomas Swartz replied 1 year ago.
That in and of itself, or by itself, is ok. Again you are allowed to video tape anything which happens in public or is in public view, and the view of your front door would be considered in public view.

Thomas
Customer: replied 1 year ago.

I just returned from both the Police and State's Attorney office and discussed this with all the talking points you provided. They said no way is this a criminal issue. At best they said maybe a civil issue but highly unlikely.

Expert:  Thomas Swartz replied 1 year ago.
The recording of oral conversations, I believe, would be a criminal issue as I mentioned under § 934.03. If the Police and State Attorney's Office do not agree with this, I would be very surprised.

As for just having a video camera pointed at your door, I would have to agree with the Police and State's Attorney. I see no criminal liability.

Thomas
Customer: replied 1 year ago.


so how would you go about getting this across to the police? write something up and provide it as a statement?

Expert:  Thomas Swartz replied 1 year ago.
Instead of going to the police, I would attempt to bring the issue to the attention of your local prosecutor's office. Local police are often not interested in enforcing these types of criminal laws. But the prosecutor's office would likely take a closer look.

Thomas

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