To: From: Date: Re:
Paula Partner Samuel Student January 24, 2007 Interspousal wiretapping in Georgia under both Federal and Georgia law
QUESTIONS PRESENTED
I. Whether Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 permits interspousal wiretapping in the Eleventh Circuit? II. Whether O.C.G.A. § 16-11-62 permits interspousal wiretapping in Georgia? BRIEF ANSWERS
I. Title III of the Federal Omnibus Control and Safe Streets Act of 1968 (the “Omnibus Act”) does not permit interspousal wiretapping in the Eleventh Circuit. II. O.C.G.A. § 16-11-62 does not permit interspousal wiretapping in Georgia unless the wiretapping spouse is a party to the conversation. DISCUSSION
I. INTERSPOUSAL WIRETAPPING UNDER FEDERAL LAW Title III of the Federal Ominbus Crime Control and Safe Streets Act of 1968 (“the Omnibus Act”) does not permit interspousal wiretapping in the Eleventh Circuit. Glazner v. Glazner, 347 F.3d 1212 (11th Cir. 2003). 18 U.S.C. § 2511 (West 2003) states
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Except as otherwise specifically provided in this chapter any person who—(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be punished ... or shall be subject to suit . . . In Glazner, the husband filed for divorce after 19 years of marriage. 347 F.3d at 1214. During the divorce proceedings, the husband put a recording device on a
telephone in the marital home, and he recorded a number of conversations between his wife and third parties without the consent of any party to the conversations. Id. Upon discovering the device, the wife filed a complaint against her husband seeking damages as a result of an alleged violation of the wiretapping provisions of the Omnibus Act. Id. During the litigation, the husband filed a motion for summary judgment based on Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974). In Simpson, the United States Court of Appeals for the Fifth Circuit held that the Ominbus Act does not apply to interspousal wiretaps in the marital home. 490 F.2d at 805. “[U]nder the prior panel precedent rule, the ... [Eleventh Circuit] was bound to follow the Simpson decision unless and until it was overruled by ... [the Eleventh Circuit] sitting en banc or by the Supreme Court.” Glazner, 347 F.3d at 1214. In Glazner, however, the Eleventh
Circuit sitting en banc overruled Simpson and held that “no interspousal wiretapping exception exists in Title III.” Id. at 1221.
II. INTERSPOUSAL WIRETAPPING UNDER GEORGIA LAW The Georgia General Assembly has chosen as a general rule to criminalize the wiretapping of private conversations. O.C.G.A. § 16-11-62 (West 2003) prohibits the unauthorized recording of a private conversation between two or more people by a person who is not a party to the conversation, with certain statutory exceptions not 2
relevant here.
Mitchell v. State, 239 Ga. 3, 5 (1977).
This statute has been
interpreted to apply to a spouse who tape records the other spouse’s conversation with a third person. Ransom v. Ransom, 253 Ga. 656, 658 (1985). Therefore, a spouse may not secretly tape record a private conversation between the other spouse and another person without consent. Id. However, the prohibition in O.C.G.A. § 16-11-62 does not apply when a party to the conversation is the one to tape record it. Sheppard v. Reid, 198 Ga. App. 703 (1991); Mitchell v. State, 239 Ga at 5. Consequently, a spouse may legally record a conversation engaged in with the other spouse without that spouse’s consent.
A. O.C.G.A. § 16-11-62 prohibits third parties who are not a party to the conversation from tape recording the private conversations of others without their consent. O.C.G.A. §16-11-62 establishes a broad prohibition against infringement on another person’s privacy by such means as wiretapping. Section 16-11-62 provides as follows: It shall be unlawful for: (1) Any person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place; (2) Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view ... (3) Any person to go on or about the premises of another or any private place, except as otherwise provided by law, for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities; (4) Any person intentionally and secretly to intercept by the use of any device, instrument, or apparatus the contents of a message sent by telephone, telegraph, letter, or by any other means of private communication;
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(5) Any person to divulge to any unauthorized person or authority the content or substance of any private message intercepted lawfully in the manner provided for in Code Section 16-11-65 [e.g., intercepts for business service improvement]; or (6) Any person to sell, give, or distribute, without legal authority, to any person or entity any photograph, videotape, or record, or copies thereof, of the activities of another which occur in any private place and out of public view without the consent of all persons observed; or (7) Any person to commit any other acts of a nature similar to those set out in paragraphs (1) through (6) of this Code section which invade the privacy of another. The purpose and intent of the statute is to protect citizens from invasions of their privacy. Ransom, 253 Ga. at 658. A companion provision, O.C.G.A. § 16-11-67
(West 2003), provides that a conversation recorded in violation of § 16-11-62 may not be used as evidence in any Georgia court except to prove a violation of § 16-11-62. Section 16-11-62 does not prohibit the recording of a conversation by a party to the conversation. Mitchell, 239 Ga. at 5; Sheppard, 198 Ga. App. at 703. Mitchell v. State first addressed the scope of Georgia’s wiretap statute under Ga. Code Ann. § 26-3001(a) (1977), and Sheppard v. Reid later applied Mitchell’s interpretation after Ga. Code Ann. § 26-3001(a) was re-codified as O.C.G.A. § 16-11-62. The Georgia Supreme Court in Mitchell v. State interpreted Ga. Code Ann. § 26-3001(a), the predecessor of O.C.G.A. § 16-11-62, as only prohibiting a third party who is not a party to the conversation from recording a private conversation between two or more persons. Mitchell, 239 Ga. at 5. 1 The court initially characterized the
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In 1984, Code § 26-3001(a) was recodified without substantive change as O.C.G.A. § 16-11-62(a). As it applied in Mitchell, Code § 26-3001(a) read as follows: It shall be unlawful for: (a) Any person in a clandestine manner to intentionally overhear, transmit or record, or attempt to overhear, transmit or record the private conversation of another which shall originate in any private place ... The wording of O.C.G.A. § 16-11-62(1) differs only in that the word “to” was moved to follow the word
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scope of § 26-3001(a) as “unclear.” Id. The court said, however, “[a]ny criminal law should be plain and unambiguous and not dependent upon the current conflicting views of appellate judges.” Id. at 3. The court’s analysis utilized the premise that “criminal statutes must be strictly construed against the state.” Id. Finding the focus of the provision to be the interception of conversations, the court found that interceptions must of necessity refer to acts by third parties, not by the participants to the conversations. Id. at 4. In Mitchell, the defendant claimed that permitting his phone conversation to be recorded would violate his right of privacy. Id. The court reported that it “found no decision in any jurisdiction in the English speaking world” that prohibited a participant in a conversation from revealing the conversation’s contents. Id. In the court’s view the participant’s right to reveal the conversation’s contents extended to the making and sharing of the contemporaneous record generated by a wiretap. Id. at 4-5. The court concluded that no illegal invasion of any privacy right occurs when a party to the recorded conversation reveals its contents. Id. Thus, the court in Mitchell determined that Georgia’s wiretapping statute was not violated when a party to the conversation recorded the communication. Id. In 1984, Ga. Code Ann. § 26-3001(a) was re-codified without any substantive change as O.C.G.A. § 16-11-62(a). Like its predecessor, § 26-3001(a), O.C.G.A. § 16-11-62 does not prohibit the recording of a conversation by one of the actual parties thereto even without that other person’s consent. Sheppard, 198 Ga. App. at 703. In Sheppard, the appellant brought a paternity action against the appellee, seeking to have him declared the father of her two children. Id. While riding alone in
“intentionally.”
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her car with the appellee, the appellant had recorded their conversations in which the appellee admitted to being the father. Id. The Georgia Court of Appeals, citing
Mitchell v. State, stated that § 16-11-62 applies only to recordings by third parties not engaged in the conversation. Id. The court, therefore, allowed the recordings to be entered in evidence against the appellee in the paternity suit. Id.
B. O.C.G.A. § 16-11-62 applies to interspousal wiretapping, and therefore a spouse is prohibited from recording a private conversation between the other spouse and another person. Where the wiretapping spouse is not a party to the conversation, the general prohibition against wiretapping in O.C.G.A. § 16-11-62 applies. A spouse may not secretly record a private conversation between the other spouse and another person without one party’s consent. Ransom, 253 Ga. at 658. The Georgia Supreme Court concluded in Ransom that the general prohibition against wiretapping in O.C.G.A. § 16-11-62 extends to interspousal wiretapping. Id. In Ransom, the husband tape
recorded his wife’s telephone conversations with another man without her consent. Id. at 656. The recorded conversations were made in the marital residence shared by the husband and wife. Id. Subsequently, the wife filed for divorce, and during discovery she became aware of the recorded conversations. Id. In their divorce proceeding, the husband attempted to use the recordings to impeach his wife’s testimony. Id. The court found that the husband’s act of recording his wife’s telephone conversations violated O.C.G.A. § 16-11-62, and thus O.C.G.A. § 16-11-67 precluded use of the recording as evidence, even for the limited purpose of impeachment. Id.
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The court in Ransom interpreted O.C.G.A. § 16-11-62 to prohibit the invasion of privacy of all persons, including spouses, by the interception of any private communication with another person without the consent of one party. Id. at 658. This determination was made after examining the legislative intent. Id. “[T]he legislature intended for the statute to apply to protect all persons from invasions upon their privacy, including invasions made upon the privacy of one spouse by the other in a private place.” Id. The court gave effect to the legislature’s intent and applied O.C.G.A. § 16-11-62 to protect interspousal privacy. Id. Therefore, a spouse may not tape record a private conversation between the other spouse and another person without consent. The court then determined that the contents of the recording could not be used for impeachment purposes. Id. at 659. O.C.G.A. § 16-11-67 provides that “[n]o
evidence obtained in a manner which violates any of the provisions of this part shall be admissible in any court of this state except to prove violations of this part.” Id. citing O.C.G.A. § 16-11-67. The court found that the language of O.C.G.A. § 16-11-67 was the sole evidence of legislative intent because it was plain and did not lead to absurd or wholly impracticable consequences. Id. Therefore, the contents of the recording
could only be used to prove a violation of O.C.G.A. § 16-11-62, and the husband was precluded from using the tape recordings for impeachment purposes. Id. The Georgia appellate courts have not decided a case where one spouse has recorded a conversation between the spouses. If the approach in Sheppard and
Mitchell is followed, however, a spouse will not be prohibited by O.C.G.A. § 16-11-62 from recording private conversations between the two spouses.
C. Conclusion as to Issue II re Georgia Law 7
Thus, O.C.G.A. § 16-11-62 pertains to interspousal wiretapping. Ransom, 53 Ga. at 658. If one spouse secretly records a conversation between the other spouse and a third person without consent, that spouse has violated O.C.G.A. § 16-11-62. Id. The unlawful recording will not be admissible in any court proceeding in Georgia except to prove a violation of O.C.G.A. § 16-11-62. Id. The statute does not prohibit,
however, the recording of a conversation by one of the parties thereto. Sheppard, 198 Ga. App. at 703. A spouse may, therefore, lawfully record a conversation engaged in with the other spouse without the other spouse’s consent.
CONCLUSION Under federal law, the Eleventh Circuit has held that the Omnibus Act does pertain to and prohibits interspousal wiretapping. Glazner, 347 F.3d at 1221. Under Georgia’s law, a spouse who secretly tape records the private conversations of the other spouse without the knowledge or consent of that spouse violates O.C.G.A. § 16-11-62. Ransom, 235 Ga. at 658. The illegal recording is not admissible as evidence except to show a violation of O.C.G.A. § 16-11-62. Id. A spouse may, however, record conversations between the spouses. Sheppard, 198 Ga. App. at 703.
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