A recent decision by the Second District Court of Appeals has cast doubt on the idea that a person cannot record another person in Florida without both parties’ consent. The Court inMcDade v. State ruled that a citizen doesn’t have an “expectation of privacy” in what they say if the content is not something that society is willing to protect.
In McDade, the defendant was recorded in his bedroom by his step-daughter without his knowledge. The court held “though he did not use sexually explicit language, he appeared to be asking her to have sex with him.” The Court found that society would not accept that there was a privacy interest in those statements. Thus, it is what you say that determines whether you have a privacy right. This contradicts prior rulings that hold it is where you say something that whether you have a right to privacy depends on “what” you say.
This appears to mean that courts will decide on a case-by-case basis if a statement is something society thinks you should not have a right to say. The appeals court has asked the Florida Supreme Court to weigh in on this issue. That may bring clarity to an issue that has suddenly become very unclear.