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Asker
Posted about 2 years ago.

A felony charge of what kind?

Roger Scott Jr.
Roger Scott Jr., Criminal Defense Attorney - Orlando, FL
Posted about 2 years ago.

Under the wiretapping statute

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Asker
Posted about 2 years ago.

Does that statute not apply only to audio? How, then, can police cruisers legally record from dashcams?

Roger Scott Jr.
Roger Scott Jr., Criminal Defense Attorney - Orlando, FL
Posted about 2 years ago.

The police have an exemption written into the statute. Lets be clear though, I said that you could risk being arrested. You may or may not be actually convicted. Natio wide, these statutes are being heavily litigated. That makes it harder to predict any one person's potential liability

Christopher Robert Dillingham II
Christopher Robert Dillingham II, Personal Injury Lawyer - Winter Park, FL
Posted about 2 years ago.

Herein lies the problem with the law: It is rarely cut and dried with clear, bright-line rules, and one fact-pattern may involve different area of law, and those areas of law may result in conflicts ("conflict of law" cases are among the most difficult to litigate because they also involve hierarchy of laws--for example, a First Amendment right to free speech versus the State's interest in public health, safety and welfare--and legislative intent in crafting such laws.

Additionally, statutory and case law rarely keeps pace with technology, and this creates legal friction. For example, SCOTUS decided in Kyllo that police could no longer use heat sensors to detect marijuana grow houses without a warrant because heat sensors weren't readily available to the public. Kyllo v. United States, 533 U.S. 27 (2001). Yet a drug-sniffing dog was and is perfectly okay.

Yet in 2013, such technology is readily available to the public. Is Kyllo still good law? I don't know. I could argue it is not, but I have no way of predicting if it is a winning argument, and laws don't change unless some attorney argues they should change.

Now, with dash-cameras, if the driver is in public and video-records something outside his car, then that is clearly a case where no one being recorded has any reasonable expectation of privacy. But what about inside the car? Is that a public area? Is there a reasonable expectation of privacy inside another parson's vehicle?

I think the question can be argued either way. I certainly have a reasonable expectation not to be recorded in my own car if the scenario involves someone placing a device in my car without my knowledge.

But what if a passenger is recording me? Does it matter if the windows are down? Probably. Does it matter how many people are in the vehicle? Maybe. Does the relationship between the parties matter? Maybe. What if the vehicle is a bus full of people? That's an even grayer area of law.

There is less expectation of privacy in a car than in a home (my home is wired for video inside and out). Yet if I hold a party in my home, I could lose than reasonable expectation of privacy--especially if strangers can attend. (Think of Mitt Romney's ill-received words at what he called a "private party" but was arguably a public fundraiser with wait-staff who were not friends and family of Mr. Romney.)

There is also the concept of the "unreliable ear" that comes into play, meaning if you tell someone something outside of a confidential relationship, then you destroy that confidentiality. So if I am huddled in a corner with another attorney at a huge public party discussing a case, and I have no reason to expect someone is recording or listening to me, I still have a reasonable expectation of privacy.

Plus, if someone knows beforehand that you are recording him, then he speaks at his own peril. This is why companies can record you when you call their offices so long as you are on notice the call might be recorded. All it takes is an occasional beep to put you on notice. If you don't want to be recorded, then don't speak; if you do speak, then you've consented even if you say "Don't record me" (so long as the company representative doesn't state he has stopped recording you, of course). If you call a police department, though, even if the officer lies and says he isn't recording you, you still have no expectation of privacy.

So, to come full circle, Florida's wiretapping statute was written in the days when phones had wires that people actually tapped. I suspect it was written to prevent government abuses and to punish blackmailers, etc., and I don't it has much relevance to dash-cameras. Conversely, Florida also has a right to privacy explicitly stated in its constitution, and that right to privacy has been applied to both public and private entities. This issue involves reasonable expectations of privacy, the statutory intent of the law, and framed against the Florida Constitution's right to privacy.

The law is a complex tapestry of interwoven statutes, case law, and confli