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

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 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?