Using Devices Like Plaud Note in Florida: What Businesses Need to Know About Eavesdropping Laws – Part II

In a recent post I identified how the use of recording devices like Plaud Note may run afoul of state and federal eavesdropping laws.

Which State Law Applies?

Federal law requires the consent of at least one party to a conversation before recording, also known as “one-party consent”. However, states are permitted to enact stricter laws than federal law, requiring the consent of all parties involved (two-party consent or all-party consent).

At least a dozen states, including Florida, have two-party or all-party consent laws.

Cross-state and cross border transactions are commonplace today. When participants are in different states with varying consent laws, it’s generally best to assume the strictest applicable state law applies.

Consent is necessary only when participants in a communication have an expectation of privacy. When consent is required, participants can provide it either explicitly or implicitly based on the specific situation.

Express Consent Exception

The Florida law permits recording “with the lawful consent of the originator or any addressee or intended recipient of such communication.” This covers situations where parties explicitly agree to recording.

That agreement may be contemporaneous with the recording or the subject of written consent as part of a retainer, contract, or terms or service with a customer.

Implied Consent Exception

Implied consent considers all parties are clearly notified that the conversation is being recorded and they engage anyway. Mere participation without actual or constructive knowledge of the recording is not enough.

This is commonly seen in business contexts where automated messages clearly and audibly state that calls are being recorded for training or quality purposes. Should someone elect to participate notwithstanding the recording notice, consent may be implied.

No Expectation of Privacy in a Public Place

Under the statute, consent is not required for the recording of an oral communication spoken by a person who does not have a reasonable expectation of privacy in that communication.

This exception applies to conversations in public settings or where privacy cannot reasonably be expected.

Conclusion

While Plaud Note and other recording tools have tremendous potential, users should take into account when consent to record is required to avoid violating Florida’s two-party consent law.