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Does Florida wiretapping law apply to the tracking tools on your company’s website? It can, and recent Florida federal decisions have let these claims move past early challenges, so any business using tracking pixels, tags, scripts, or cookies (“AdTech”) on their website should understand how the statute works.
Enacted in 1969, the Florida Security of Communications Act, Chapter 934, Fla. Stat. (“FSCA”) serves as Florida’s wiretap statute. Initially contemplating secretly recorded phone calls and conversations, modern FSCA litigation often focuses on third-party AdTech intercepting and disclosing the website user’s private information. The FSCA permits recovery of statutory liquidated damages, punitive damages, and attorney’s fees, and FSCA claims are frequently brought as class actions.
FSCA litigation continues to gain momentum in Florida due to the recent, plaintiff-friendly FSCA decisions in Bowen v. Women’s Care Fla. LLC and Crespi v. BayCare Health System, Inc. Healthcare providers remain at the epicenter of current FSCA litigation, where plaintiffs allege that the defendant healthcare company intercepted and disclosed their private health information to third parties via AdTech on its website.
Which FSCA Provisions Do Website Tracking Lawsuits Rely On?
Plaintiffs suing under the FSCA for AdTech disclosures rely primarily upon two operative statutory prohibitions: Section 934.03(1)(a) and Section 934.03(1)(d). Section 934.03(1)(a) prohibits the intentional interception of any wire, oral, or electronic communication. Section 934.03(1)(d) prohibits the intentional use of the contents of a communication, knowing or having reason to know it was unlawfully intercepted. Of note, a subsection (d) claim will fail if the defendant can defeat the underlying “interception” alleged in a subsection (a) violation.
Which FSCA Definitions Decide Website Tracking Cases?
A court’s application of four defined terms heavily effects on the pleading-stage disposition of AdTech-driven FSCA cases. As a matter of statutory construction, liability arises when, absent consent, an “Electronic, Mechanical, or Other Device” (the AdTech used) intentionally “Intercepts” the “Contents” of a person’s “Electronic Communication.”
- “Intercept”: Encompasses the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device (Section 934.02(3), Fla. Stat.).
- “Contents”: Captures “any information concerning the substance, purport, or meaning of that communication” (Section 934.02(7), Fla. Stat.).
- “Electronic Communication”: Inclusive of any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system that affects intrastate, interstate, or foreign commerce (Section 934.02(12), Fla. Stat.).
- “Electronic, Mechanical, or Other Device”: Absent very limited exceptions, includes any device or apparatus which can be used to intercept a wire, electronic, or oral communication (Section 934.02(4), Fla. Stat.).
Notably, unlike an “oral communication” under the FSCA, an electronic communication does not need to be made with a reasonable expectation of privacy to receive statutory protection. However, a company can avoid FSCA liability through a consent defense, where all parties gave prior consent to the interception of the electronic communication. This, in turn, increases the value of a strong privacy policy, consent banners, and opt-out mechanisms for a company’s website.
Can Pen Register Rules Create a Second FSCA Claim?
Separately, the FSCA defines “pen register” and “trap and trace devices,” and prohibits their installation or use without a court order, though the FSCA’s civil remedy provision, Section 934.10, does not expressly reach Section 934.31. In May 2026, the plaintiff in Johnson v. SearchBloom, LLC alleged “a double FSCA violation” by pleading violations of both Section 934.03, Fla. Stat., and Section 934.31. While Florida courts have not yet substantively evaluated this theory, it signals that civil litigants are actively developing novel FSCA liability theories.
What Damages Can FSCA Plaintiffs Recover?
The FSCA permits recovery of actual damages, but not less than liquidated damages of $100 per day for each day of violation or $1,000, whichever is higher, with punitive damages, attorney’s fees, and court costs. However, as evidenced by the proliferation of consumer litigation nationwide, plaintiffs’ attorneys gravitate towards statutory claims which provide liquidated statutory damages and recovery of attorneys’ fees and costs. FSCA plaintiffs often seek class disposition of their claims on behalf of themselves and the putative class. While a single violation against a single plaintiff may appear immaterial, class-wide exposure can represent an existential threat to many businesses.
What Should Businesses With Consumer-Facing Websites Do Now?
Businesses which operate consumer-facing websites should assess their FSCA exposure now. Contact us to speak with Jimerson Birr’s privacy and litigation attorneys about pending FSCA litigation, compliance strategies, and litigation risk mitigation.