Recording Law for Voiceprints & Biometric Data in Florida

Florida requires all parties to consent before recording an oral communication protected under § 934.02(2). Section 934.03(2)(d) requires all parties to give prior consent. Section 934.02(2) defines a protected "oral communication" as any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, and expressly excludes "any public oral communication uttered at a public meeting." A communication lacks protection if the speaker exhibits no reasonable expectation of privacy, such as in a loud public argument or where others can easily overhear. Where an expectation of privacy IS justified, all parties must consent. A violation may result in criminal penalties under § 934.03(4) and a civil lawsuit for damages under § 934.10.

The threshold question is whether the audio qualifies as a protected "oral communication" under § 934.02(2). Section 934.02(2) excludes "any public oral communication uttered at a public meeting." Florida courts apply a two-part subjective-expectation plus objective-reasonableness test mirroring Fourth Amendment analysis. Where an expectation of privacy IS justified, all parties must consent under § 934.03(2)(d); where it is not, no consent is required.

Florida recognizes a First Amendment right to record police officers performing duties in public, recognized in Smith v. City of Cumming and Crocker v. Beatty. Steven DeWitt v. Haney (11th Cir. May 12, 2025) narrowed the doctrine for non-traditional public spaces like police station lobbies. Because a cert petition is pending, recordings in such locations carry residual risk and should be reviewed by counsel. On public streets or sidewalks, recording police is permitted without consent. Fla. Stat. § 843.31 (effective Jan. 2025) makes it a second-degree misdemeanor to knowingly remain within 25 feet of a first responder after a verbal warning with intent to impede, but does not prohibit recording itself.

Silent video-only recording is not restricted by Chapter 934. Because the wiretap act's "interception" offense is defined in terms of "aural or other acquisition of the contents of any wire, electronic, or oral communication" (§ 934.02(3)) — it targets capture of communications' contents (sound/data), not silent imagery — § 934.03 does not apply to video-only capture. Fla. Stat. § 810.145 independently criminalizes covert video recording — with or without audio — of a person in a place where they have a reasonable expectation of privacy, such as a restroom, dressing room, or private residence, regardless of the wiretap-consent analysis. Once the wearable device captures AUDIO alongside video of a protected "oral communication," § 934.03's all-party-consent rule applies to that audio track.

The FDBR expressly defines "biometric data" to include "voiceprints" (§ 501.702(4)) and counts such data as "sensitive data" when "processed for the purpose of uniquely identifying an individual" (§ 501.702(31)(b)). Consumers have a right to opt out of sensitive-data processing generally and, specifically, of "the collection of personal data collected through the operation of a voice recognition or facial recognition feature" (§ 501.705(2)(g)). In a separate subsection, a device with a voice- or facial-recognition (or recording) feature "may not use those features for the purpose of surveillance by the controller, processor, or affiliate of a controller or processor when such features are not in active use by the consumer, unless otherwise expressly authorized by the consumer" (§ 501.705(3)). The FDBR only applies to "controllers" meeting a very high bar: for-profit entities doing business in Florida with over $1 billion in global gross annual revenue AND satisfying at least one of: (a) deriving 50%+ of global gross annual revenue from online ad sales, (b) operating a consumer smart-speaker/voice-command service with an integrated, cloud-connected, hands-free virtual assistant, or (c) operating an app store/digital distribution platform offering at least 250,000 different apps. Florida has no BIPA-style requirement of written consent or a public retention/destruction schedule before capturing a voiceprint. Enforcement is by the Attorney General under § 501.72, which provides civil penalties up to $50,000 per violation, tripled (up to $150,000) for violations involving a known child, failure to honor authenticated deletion/correction requests, or continued sale/sharing after an opt-out; the Department "may" grant a 45-day cure period after written notice before pursuing an action (discretionary, not mandatory), and there is no private right of action.

Imagine you’re a lawyer in Florida recording a client meeting in your office. Because the conversation is private and takes place where the client exhibits an expectation of privacy that circumstances justify as objectively reasonable, all parties must consent under § 934.03(2)(d). A violation may result in criminal penalties under § 934.03(4) and a civil lawsuit for damages under § 934.10. If recorded on a busy sidewalk where others can easily overhear, the conversation may lack protection because the speaker exhibits no reasonable expectation of privacy, so no consent is required. If the client lowers their voice or moves away from bystanders, the expectation-of-privacy analysis may change, and the all-party-consent rule could apply. Always assess the setting and the speakers’ conduct before recording.

Fla. Stat. § 934.03 was amended by Chapter 2024-131 (eff. 4/26/2024), adding three new lettered exceptions to subsection (2): (k) minors may record evidence of sexual abuse/violence against themselves; (l) parents/legal guardians may record a minor child's communications capturing evidence of sexual abuse or physical violence against the child (with mandatory law-enforcement disclosure and use restrictions); (m) persons protected by an injunction may record violations of that injunction. Critically, this amendment did NOT renumber or alter (2)(c) or (2)(d) — the all-party-consent core rule the claim relies on is untouched.