This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1281z.DOCX
DATE: 3/13/2024
HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/HB 1281 Interception and Disclosure of Oral Communications
SPONSOR(S): Criminal Justice Subcommittee, Persons-Mulicka and others
TIED BILLS: IDEN./SIM. BILLS: SB 1618
FINAL HOUSE FLOOR ACTION: 112 Y’s
0 N’s GOVERNOR’S ACTION: Pending
SUMMARY ANALYSIS
CS/HB 1281 passed the House on February 22, 2024. The bill was amended in the Senate on March 4, 2024,
and returned to the House. The House concurred in the Senate amendment and subsequently passed the bill
as amended on March 7, 2024.
In Florida, intentionally intercepting an oral communication, commonly known as wiretapping, is generally a
third degree felony, with limited exceptions. For example, it is not a crime for a person to intercept an oral
communication if:
All parties to the communication consent to the interception.
The person is a law enforcement officer or a person acting under the direction of a law enforcement
officer and:
o He or she is a party to the communication; and
o One of the parties to the communication has given prior consent to such interception and the
purpose of such interception is to obtain evidence of a criminal act.
The person is a child under 18 years of age and:
o He or she is a party to the communication; and
o Has reasonable grounds to believe the recording will capture a statement by another party to
the communication that the other party intends to commit, is committing, or has committed an
unlawful sexual act or act of physical force or violence against the child.
The person is protected under an active temporary or final injunction for repeat violence, sexual
violence, or dating violence under s. 784.046, F.S.; stalking under s. 784.0485, F.S.; domestic violence
under s. 741.30, F.S.; or any other court-imposed prohibition of conduct toward the person, and the
communication is in violation of such injunction or court order.
The bill amends s. 934.03, F.S., to expand the limited exceptions under which a person may lawfully intercept
a communication. The bill authorizes a person to intercept an oral communication if the person is a parent or
legal guardian of a child under 18 years of age and:
The child is a party to the communication; and
The parent or legal guardian has reasonable grounds to believe the recording will capture a statement
by another party to the communication that the other party intends to commit, is committing, or has
committed an unlawful sexual act or an unlawful act of physical force or violence against the child.
The bill may have an indeterminate positive impact on the jail and prison bed population by exempting the
recording of specified communications from the prohibition against wiretapping, and authorizing a private
citizen to collect admissible evidence for specified criminal offenses, which may make it easier to prove a
violation of such offenses.
Subject to the Governor’s veto powers, the effective date of this bill is upon becoming a law.
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DATE: 3/13/2024
I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Background
Wiretapping
In Florida, intentionally intercepting
1
an oral communication,
2
commonly known as wiretapping, is
generally a third degree felony,
3
with limited exceptions. For example, it is not a crime for a person to
intercept an oral communication if:
All parties to the communication consent to the interception.
4
The person is a law enforcement officer or a person acting under the direction of a law
enforcement officer and:
o He or she is a party to the communication; and
o One of the parties to the communication has given prior consent to such interception
and the purpose of such interception is to obtain evidence of a criminal act.
5
The person is a child under 18 years of age and:
o He or she is a party to the communication; and
o Has reasonable grounds to believe the recording will capture a statement by another
party to the communication that the other party intends to commit, is committing, or has
committed an unlawful sexual act or act of physical force or violence against the child.
6, 7
The person is protected under an active temporary or final injunction for repeat violence, sexual
violence, or dating violence under s. 784.046, F.S.; stalking under s. 784.0485, F.S.; domestic
violence under s. 741.30, F.S.; or any other court-imposed prohibition of conduct toward the
person, and the communication is in violation of such injunction or court order.
8,9
The penalty for wiretapping may be decreased to a misdemeanor
10
under the following circumstances:
The person has no prior wiretapping offenses;
The wiretapping was not done for a tortious or illegal purpose or for purposes of direct or
indirect commercial advantage or private commercial gain; and
The intercepted communication was a radio communication that was not scrambled, encrypted,
or transmitted using modulation techniques intended to preserve the privacy of such
communication.
11
1
“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. S. 934.02(3), F.S.
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. S. 934.02(2), F.S.
3
A third degree felony is punishable by up to five years imprisonment and a $5,000 fine. Ss. 775.082, 775.083, or 775.084, F.S.
4
Section 934.03(2)(d), F.S. Thirteen states, in some form, require the consent of all parties involved in a conversation or phone call
before the conversation can be recorded. These laws are sometimes referred to as “two-party” consent laws but, technically, require
that all parties to a conversation must give consent before the conversation can be recorded. Recording Law, All Party (Two Party)
Consent States, https://recordinglaw.com/united-states-recording-laws/ (last visited Mar. 13, 2024).
5
S. 934.03(2)(c), F.S.
6
S. 934.03(2)(k), F.S.
7
The Legislature provided that such recording is lawful in 2015, following the ruling in McDade v. State, 154 So.3d 292 (Fla. 2014). See
Ch. 2015-82, Laws of Fla.
8
S. 934.03(2)(l), F.S. A recording authorized under this paragraph may be provided to a law enforcement agency, an attorney, or a
court for the purpose of evidencing a violation of an injunction or court order if the subject of the injunction or court order prohibiting
contact has been served the injunction or is on notice that the conduct is prohibited. A recording authorized under this paragraph may
not be otherwise disseminated or shared.
9
The Legislature passed this exception in 2021. See Ch. 2021-207, Laws of Fla.
10
Misdemeanors are classified as either first- or second-degree. A first degree misdemeanor is punishable by up to one year in the
county jail and a $1,000 fine. A second degree misdemeanor is punishable by up to 60 days in the county jail and a $500 fine. Ss.
775.082 and 775.083, F.S.
11
S. 934.03(4), F.S.
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DATE: 3/13/2024
An oral communication that is intercepted illegally cannot be used as evidence in any trial, hearing, or
other proceeding in or before any court, grand jury, department, officer, agency, regulatory body,
legislative committee, or other authority or political subdivision of the state.
12
When a communication
has been unlawfully intercepted, an aggrieved party may move to suppress the contents of the
interception or any evidence derived from it.
13
However, not all wiretapping is subject to exclusion.
Florida only protects oral communications by a person exhibiting an expectation of privacy under
circumstances reasonably justifying their expectation of privacy.
14
At least one Florida court has held
that “it may well be that a compelling case can be made for an exception from chapter 934’s statutory
exclusionary rule for recordings that provide evidence of criminal activity – or at least certain types of
criminal activities. But the adoption of such an exception is a matter for the Legislature.”
15
Effect of the Bill
The bill amends s. 934.03, F.S., to expand the limited exceptions under which a person may lawfully
intercept a communication. The bill authorizes a person to intercept an oral communication if the
person is a parent or legal guardian of a child under 18 years of age and:
The child is a party to the communication; and
The parent or legal guardian has reasonable grounds to believe the recording will capture a
statement by another party to the communication that the other party intends to commit, is
committing, or has committed an unlawful sexual act or an unlawful act of physical force or
violence against the child.
A recording authorized under this section and which captures a statement by a party that the party
intends to commit, is committing, or has committed an unlawful sexual act or an unlawful act of physical
force or violence against a child must be provided to a law enforcement agency and may be used for
the purpose of evidencing the intent to commit or the commission of an unlawful sexual act or an
unlawful act of physical force or violence against a child, but may not be otherwise disseminated or
shared.
16
Subject to the Governor’s veto powers, the effective date of this bill is upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
12
S. 934.06, F.S.
13
Ss. 934.06 and 934.09(10)(a), F.S.
14
A person must show that they have a reasonable expectation of privacy under the circumstances, which “depends on one’s actual
subjective expectation of privacy as well as whether society is prepared to recognize that expectation as reasonable.” State v.
Inciarrano, 473 So.2d 1272, 1275 (Fla. 1985) (holding that the defendant’s subjective expectation of privacy, under the circumstances
was not justified, because he “went to the victim's office with the intent to do him harm. He did not go as a patient. The district court, in
the present case, correctly stated: One who enters the business premises of another for a lawful purpose is an invitee. At the moment
that his intention changes, that is, if he suddenly decides to steal or pillage, or murder, or rape, then at that moment he becomes a
trespasser and has no further right upon the premises. Thus, here, if appellant ever had a privilege, it dissolved in the sound of
gunfire.”)
15
McDade v. State, 154 So.3d 292 (Fla. 2014).
16
Under s. 39.201, F.S., a person is required to report immediately to the central abuse hotline established in s. 39.101, in writing,
through a call to the toll-free telephone number, or through electronic reporting, if he or she knows, or has reasonable cause to suspect,
that any of the following has occurred: a) child abuse, abandonment, or neglect by a parent or caregiver, which includes, but is not
limited to, when a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the
child’s welfare or when a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative
immediately known and available to provide such supervision and care; or b) child abuse by an adult other than a parent, legal
custodian, caregiver, or other person responsible for the child’s welfare. The central abuse hotline must immediately electronically
transfer such reports to the appropriate county sheriff’s office. Additionally, any person who knows, or has reasonable cause to suspect,
that a child is the victim of sexual abuse or juvenile sexual abuse shall report such knowledge or suspicion to the central abuse hotline,
including if the alleged incident involves a child who is in the custody of or under the protective supervision of the department.
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None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have an indeterminate positive impact on the jail and prison bed population by exempting
the recording of specified communications from the prohibition against wiretapping, and authorizing a
private citizen to collect admissible evidence for specified criminal offenses, which may make it easier
to prove a violation of such offenses.