Update: Florida Legislature Proposes Change to Wiretapping Law

Proposed New Law to “Fix” Florida’s Anti-Wiretapping Legislation is too Broad

Back on December 12th, I wrote about the Florida Supreme Court’s decision in McDade v. State of Florida. In that case, the FL Supreme Court ruled that secret recordings made by an alleged sex abuse victim could not be used in court due to Florida’s anti-wiretapping law. The recording at issue was made in the defendant’s home and without his knowledge. Because there is no exception in the anti-wiretapping law, the recordings were thrown out.

In response, a group of Florida lawmakers are seeking to change the anti-wiretapping law. The proposed new lawwould allow secret recordings to be used “in a prosecution for any act of sexual abuse against a child 16 years of age or younger at the time of the offense.”

While this may seem like a good response, there are some concerns with the way the new law is written. This new law would give the prosecution an after-the-fact justification for violating the Fourth Amendment. As long as the person being recorded ends up being prosecuted for a sex crime against a minor, then the secret recording can be used.

There’s nothing to prevent the police from wiretapping the phones of people suspected of sex crimes without a warrant, because those recordings can be used in any prosecution, no justification required.

It seems that this new law is using a sword instead of a scalpel. The problem in McDade wasn’t that the police made the recording in secret, it was the victim who recorded the accused without his knowledge and in a place he thought was private.

By making the exception broad the legislature will be encouraging the police to wiretap and secretly record people merely suspected of sex crimes. This will mean that innocent people, as well as those who are committing crimes, will fall under the surveillance net.

Essentially, this means people suspected of sexual abuse have fewer rights than those not suspected. Let’s hope this legislation itself gets fixed before becoming law.