CF on Cyber: An Update on the Florida Security of Communications Act (FSCA)

Carlton Fields
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Since the beginning of 2021, more than two dozen class action cases have been filed in Florida state court under Florida's Security of Communications Act. The act has, in some form, been on the books for more than 50 years. It is modeled off of the Federal Wiretap Act and has traditionally been thought of primarily as the statute that prevents recording telephone calls.

In a case of new wine in old bottles, these recent cases are using this long-established statute to claim that the defendants in these See more +

Since the beginning of 2021, more than two dozen class action cases have been filed in Florida state court under Florida's Security of Communications Act. The act has, in some form, been on the books for more than 50 years. It is modeled off of the Federal Wiretap Act and has traditionally been thought of primarily as the statute that prevents recording telephone calls.

In a case of new wine in old bottles, these recent cases are using this long-established statute to claim that the defendants in these lawsuits use tracking and session replay software to intercept their consumer's interactions with their websites. These complaints allege that the technology used by the defendants in these cases track things like mouse clicks and page scrolling but do not disclose this to the user. The plaintiffs claim that this conduct violates Florida's Security of Communications Act.

Carlton Fields has put together a seasoned litigation team that can assist with these cases. Our team is led by Miami shareholder Aaron Weiss, who is a national recognized class action litigator, with a particular emphasis on telecommunications-related class actions, and Tampa shareholder Joe Swanson, a former federal prosecutor who is a leading authority on data privacy issues.

In this podcast, Aaron and Joe discuss some of the key questions involved in these cases, including:

- Is removal to federal court advisable?

- Can defendants take advantage of the recognized "business extension exception" and good faith conduct defenses under Florida's Security of Communications Act - and do those defenses play better in federal court?

- Is pursuing arbitration on a non-class basis a possibility - particularly pursuant to any contract the named plaintiff may have signed with the defendant for any type of service - a viable defense strategy?

- And, even if the named plaintiff is not subject to arbitration, can defendants argue that class certification is inappropriate in cases in which some, but not all, members of the class are subject to arbitration?

- Do defendants have sufficient disclosures/privacy policies in the terms of service displayed on their websites and mobile applications?

- Will the courts enforce such policies under the concept of "inquiry notice," or will the courts take a strict "anti-browsewrap" stance?

- Can a class action be certified if individualized inquiries are required to determine who received the call? Under this framework, at least one Florida judge has denied class certification in a class action under Florida's Security of Communications Act. Stalley v. ADS Alliance Data Sys., 296 F.R.D. 670 (M.D. Fla. 2013). Will the Stalley decision provide the framework to defeat certification in these cases?

- Likewise, in light of emerging case law from the Eleventh Circuit suggesting that whether a person has a reasonable expectation of privacy against being recorded is potentially a question based on specific circumstances, will this concept also be a viable class defense? See less -

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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