Violations of Right to Privacy and Correspondence – Florida

Human rights are a set of rules that govern how individuals and groups are treated by states and non-state actors based on moral precepts pertaining to what society views as essential to a decent life. These standards are included in national and international legal frameworks, which outline mechanisms and processes for holding duty-bearers accountable and offering compensation to those who may have been the victims of human rights violations. A cornerstone of the United States’ founding over 200 years ago was the protection of basic human rights. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. However, asides from these rights which are considered the “basic human right”, the advancement of technology has warranted the need to protect additional rights like the right to private life and correspondence.

Right to Private Life and Correspondence in the US
Although the Fourth Amendment safeguards US citizens from unauthorized government searches and seizures, the US Constitution does not grant citizens an unalienable right to privacy. Protecting the private and public liberties of US citizens while preventing infringement on those liberties is a delicate balancing act.

The right to private life, family life and correspondence has become one of the fundamental rights that has been subject to lots of interpretation and countries globally have ratified laws to protect this right or created laws to that effect. While the European Convention on Human Rights caters for this right under Article 8, its application in the US is limited.

The right to private correspondence is also protected by Article 17 of the International Covenant on Civil and Political Rights (ICCPR). ICCPR is an international human rights treaty adopted in 1966, however, it was not ratified in the United States until 1992. According to the Supremacy Clause of the U.S. Constitution, which grants ratified treaties the status of federal law, the ICCPR became the “supreme law of the land” upon ratification and this position has been backed by the Supreme Court in The Paquete Habana. 175 U.S. 677,700 (1900). The United States is required to abide by and carry out the terms of the treaty just like any other domestic law.

Application and Enforcement of ICCPR
Although the US Congress ratified this treaty and identified the need to keep up with global prevalent human rights standards, they exempted the US from several provisions in the treaty by creating reservations, understandings and declarations (RUDs). While there is no specific RUD limiting the application of Article 17, there is a “not self-executing” Declaration that aims to restrict the ability of litigants to file court lawsuits for the treaty’s direct enforcement.

In a ruling in Foster v. Neilson, 27 U.S. 253, the U.S. Supreme Court described and separated treaties into self-executing and non-self-executing categories. When a treaty’s provisions are immediately applied within domestic jurisdiction without implementing legislation, it is said to be self-executing. A non-self-executing treaty, on the other hand, would call for legislative implementation. The differences between self-executing and non-self-executing treaties are not entirely clear, though. The issue of treaty implementation in the United States has become significantly more complicated as a result of the self-execution question, with far-reaching effects.

Provisions of Florida Law on Privacy of Correspondence
Although the definition of privacy has evolved over time, it is now generally understood to mean not having one’s private information and personal life compromised. Privacy is not recognized as an unalienable right anywhere in the US Constitution or the Bill of Rights. Due to the Fourth Amendment’s provisions regarding search and seizure, some academics and legal professionals interpret this right as belonging to every citizen. The Supreme Court’s decision that each of us has a right to privacy is frequently cited in the case of Griswold v. Connecticut as the precedent-setting decision.

The goal of the right to respect for “correspondence” is to safeguard the privacy of communications in a variety of different contexts. It is illegal to purposefully intercept someone’s electronic communications, including a phone call, without the consent of all parties involved, according to the Florida Security of Communications Act. These offences are also known as eavesdropping or illegal wiretapping.

What Amounts to Communication Under the Act
Any oral communication that is made with the expectation that it won’t be intercepted under circumstances that support that expectation is considered to be oral communication. This excludes oral communications made in public settings like public meetings and electronic communications.

Any transfer of writing, images, sounds, data, or intelligence of any kind transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system is referred to as “electronic communication”.

Under the United States Code, 2006 Edition, Supplement 5, Title 18 – CRIMES AND CRIMINAL PROCEDURE, Chapter 83, Sec. 1708 provides for the ‘ Theft or receipt of stolen mail matter generally’. The section provides:

‘Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letterbox, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein shall be fined under this title or imprisoned not more than five years, or both’

Penalty for violation
For the unlawful interception of a communication, Florida Statute Section 934.03 allows for a private cause of action with liquidated damages of at least $1,000. If you secretly record a phone call or another type of communication in violation of the law, you could also face civil penalties as well as a third-degree felony charge that carries a maximum five-year prison sentence in Florida.

Does this Right Extend to Detained and Convicted Persons?
The right to private life and correspondence while arrested is a human right protected by several international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR). According to Article 17 of the ICCPR:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”

This means that a person’s right to privacy, including the right to private correspondence, should not be violated while they are in custody or incarceration unless it is strictly necessary, reasonable in the circumstances, and permitted by law.

This means, in practice, that people who have been arrested should be able to communicate with their family members and legal counsel in a private manner, and that their correspondence will not be monitored or intercepted unless there is a good reason to do so, such as to stop a crime from being committed or to safeguard the nation’s security. It is significant to remember that, in specific situations, the right to private correspondence may be subject to limitations or restrictions; however, any such limitations or restrictions must be compliant with the law and be necessary and proportionate.

Section 934.03(2), Florida Statutes, contains a list of specific exceptions to the general prohibition in section 934.03(1). However, none of these exceptions allows interception of communications simply on the basis of an arrest. The exceptions provided are:

For the purpose of law enforcement. This could be someone who has given permission to be recorded and is conducting an investigation for law enforcement.
For the sake of protecting children. Any conversations involving a minor under the age of 18 in a prohibited physical or sexual act may be legally recorded. There must be a minor involved in the communications.
Public conversation It is acceptable to record a person speaking freely in a public setting because no one would have a legitimate expectation of privacy.

Investigations into any felony may involve the use of wiretaps by federal law enforcement. However, they are only permitted for investigations that are specifically listed in a statute that is a part of the Act when it comes to wire or oral intercepts.

To obtain wiretap warrants, law enforcement investigators must follow a set of formal procedures. Because the prosecution would not be able to use the wiretap evidence gathered in a trial if they violated the rules for obtaining a wiretap warrant, a criminal case may be dismissed.

Even when law enforcement agents have obtained wiretap warrants, certain limitations still guide the use of the interference warrant including;
Calls between husband and wife;
Conversations with medical providers and insurance;
Calls to attorneys;
Conversations with a minister, rabbi, priest or other religious officials;
Conversations irrelevant to the investigation with certain limited exceptions.

If neither party to a phone conversation consents to the use of a wiretap, the police cannot listen in on that person’s phone calls without a warrant. Any information they gather without a warrant and without permission cannot be used in a criminal trial as evidence against a defendant.

The same is true for data gathered in defiance of a warrant’s conditions. Since the data was obtained through an unlawful search, it can be suppressed. Additionally, using a wiretap without a court order or in violation of one can be considered police misconduct. This Court analyzed these statutory provisions in State v. Walls, 356 So.2d 294 (Fla.1978). In Walls, the defendants’ conversation with “the alleged target of extortionary threats” was recorded electronically. In accordance with Florida Statutes section 934.06, the Court found that the recording was inadmissible.

Instances of Infringement of Right to private correspondence of accused persons and prisoners
Many prison systems have recently experimented with or fully implemented a policy that interferes with inmates’ mail in a way that has not been seen in many years of trying to safeguard family communication while they are incarcerated: Incoming letters, cards, and artwork are increasingly being photocopied or digitally scanned in prisons, then sent to the recipients as subpar copies. Mail is frequently the least expensive and most popular form of communication between people who are imprisoned and their loved ones. However, this practice of mail scanning, whether carried out at the prison itself or off-site using a third-party vendor, removes the privacy and sentimentality of mail.

In Florida, the Florida Department of Corrections announced that all State of Florida Correctional Institutions are fully transitioned to the new electronic mail delivery format. Rule 33-210.101 Florida Administrative Code provides all routine inmate mail must be addressed to the central processing facility for scanning and electronic distribution. While this looks like technological advancement, it basically gives third-party access to inmates’ mails. There is a further provision for legal and privileged mails which cannot be opened or scanned but the effectiveness of that and awareness of people concerning this exception is limited as routine mail is the most popular way of sending mails to inmates.

Law enforcement agents have been known to use various interference mechanisms to gather evidence. In State v. Sarmiento, a Supreme Court of Florida landmark decision, the court had to decide whether the state agents’ warrantless electronic interception of a conversation between the defendant and an undercover police officer in the defendant’s home violated article I, section 12 of the Florida Constitution. Even though section 934.03(2)(c) permitted interception by a law enforcement officer or informant, the court determined that the interception was unreasonable. The Supreme Court subsequently followed Sarmiento in slightly different factual contexts. Hoberman v. State, 400 So.2d 758 (Fla.1981) and Odom v. State, 403 So.2d 936 (Fla. 1981). While these are exemplary cases of the Courts overturning the illegal use of power by Law Enforcement Agents, there are countless cases where accused persons have had communications intercepted.

The right to post-booking phone calls is protected by the Fourteenth Amendment of the U.S. Constitution. The Fourteenth Amendment ensures the right to due process and is especially protective of the minimal freedoms granted to prisoners, such as the right to make a phone call after being detained and booked. A person is “detained” when they are held by a police officer for a brief period of time. Detention becomes an arrest if a reasonable person would not feel free to leave or if law enforcement prevents someone they are questioning from leaving. A person is entitled to calls following their arrest and booking. Unless it’s physically impossible, Arrestees are entitled to three phone calls immediately after booking and no later than three hours after arrest. If the person being arrested is a parent with custody of a child, they are entitled to two more phone calls to make arrangements for the care of a minor child or children while they are away from them.

The law clearly states that police officers cannot refuse phone calls to people who have been arrested, and the consequences of denying someone the ability to call their family or a lawyer to let them know where they are can be severe. As a result, the right to phone calls after booking is one of those rights. However, these telephone conversations are not private and could be used against the accused person. As long as the call is not with an attorney, police frequently record the outbound portion of the conversation and even the whole conversation sometimes without giving any disclaimers or notice. This is an infringement of the right to correspondence.

While the ratifications of International laws like the ICCPR give citizens access to a wider variety of human rights, the use of RUDs hinders the effectiveness of these rights as they cannot be enforced in Domestic courts in the US. This leads to a complication where local laws do not provide sufficient provisions to cover certain instances like the right to private life and correspondence and citizens have to resort to other specific laws.

Arrested persons and persons in detention are allowed certain levels of rights although they may be limited in certain cases. The right to private life and correspondence is important to all persons, however, the loopholes available in the present systems pose a problem. There are still rampant cases of interference in the US without accountability like new prison systems taking away inmates’ right to personal mails and law enforcement agents recording post-booking calls. In the coming days, it can be expected that these infringements increase and this right becoming less enforceable because while there may be good motives behind interference, there are insufficient provisions of laws to highlight them.

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