2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 11 - Offenses Against Public Order and Safety
Article 3 - Invasions of Privacy
Part 1 - Wiretapping, Eavesdropping, Surveillance, and Related Offenses
§ 16-11-66. Interception of Wire, Oral, or Electronic Communication by Party Thereto; Consent Requirements for Recording and Divulging Conversations to Which Child Under 18 Years Is a Party; Parental Exception

1. Nothing in Code Section 16-11-62 shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
2. After obtaining the consent required by this subsection, the telephonic conversations or electronic communications to which a child under the age of 18 years is a party may be recorded and divulged, and such recording and dissemination may be done by a private citizen, law enforcement agency, or prosecutor's office. Nothing in this subsection shall be construed to require that the recording device be activated by the child. Consent for the recording or divulging of the conversations of a child under the age of 18 years conducted by telephone or electronic communication shall be given only by order of a judge of a superior court upon written application, as provided in subsection (c) of this Code section, or by a parent or guardian of said child as provided in subsection (d) of this Code section. Said recording shall not be used in any prosecution of the child in any delinquency or criminal proceeding. An application to a judge of the superior court made pursuant to this Code section need not comply with the procedures set out in Code Section 16-11-64.
3. A judge to whom a written application has been made shall issue the order provided by subsection (b) of this Code section only:
   1. Upon finding probable cause that a crime has been committed;
   2. Upon finding that the child understands that the conversation is to be recorded and that such child agrees to participate; and
   3. Upon determining that participation is not harmful to such child.

      A true and correct copy of the recording provided for in subsection (b) of this Code section shall be returned to the superior court judge who issued the order and such copy of the recording shall be kept under seal until further order of the court.

4. The provisions of this article shall not be construed to prohibit a parent or guardian of a child under 18 years of age, with or without the consent of such minor child, from monitoring or intercepting telephonic conversations of such minor child with another person by use of an extension phone located within the family home, or electronic or other communications of such minor child from within the family home, for the purpose of ensuring the welfare of such minor child. If the parent or guardian has a reasonable or good faith belief that such conversation or communication is evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity affecting the welfare or best interest of such child, the parent or guardian may disclose the content of such telephonic conversation or electronic communication to the district attorney or a law enforcement officer. A recording or other record of any such conversation or communication made by a parent or guardian in accordance with this subsection that contains evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity shall be admissible in a judicial proceeding except as otherwise provided in subsection (b) of this Code section.

(Ga. L. 1967, p. 844, § 1; Code 1933, § 26-3006, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1993, p. 565, § 1; Ga. L. 1994, p. 97, § 16; Ga. L. 2000, p. 491, § 4.)

- For annual survey on criminal law, see 68 Mercer L. Rev. 93 (2016). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 109 (1993). For note, "Location, Location, Location: A 'Private' Place and Other Ailments of Georgia Surveillance Law Curable Through Alignment with the Federal System," 46 Ga. L. Rev. 1089 (2012). For comment on Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509 (1977), see 29 Mercer L. Rev. 351 (1977). For comment, "Lawful or Unlawful: Tape-recording Phone Calls?," see 10 Ga. St. B.J. 44 (No. 4, 2004).

ANALYSIS

• General Consideration
• Conversations in Furtherance of Crime

General Consideration

When third party may intercept, record, and divulge a conversation.

- O.C.G.A. § 16-11-66 allows a third party to intercept, record, and divulge conversation, (1) when parties to conversation consent, or (2) when message is a crime or is directly in furtherance of a crime and one party to conversation consents. Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, on remand, 142 Ga. App. 802, 237 S.E.2d 243 (1977), for comment, see 29 Mercer L. Rev. 351 (1977).

Disclosure under former paragraph (b)(7) of O.C.G.A. § 16-11-64 was not required where consent of one party is received under O.C.G.A. § 16-11-66. Luck v. State, 163 Ga. App. 657, 295 S.E.2d 584 (1982).

- Motions for reconsideration were denied because the court did not err in the court's interpretation of O.C.G.A. § 16-11-66 because rather than functioning as a limitation on some pre-existing parental right to consent on behalf of the child, the statute was more properly read as a narrow grant of authority for parents' consent to the recording of their child's conversations by a specific means (telephonic conversations) and in a specific location (the family home). Atlanta Indep. Sch. Sys. v. S.F., F. Supp. 2d (N.D. Ga. Nov. 23, 2010).

- Trial court erred in granting the defendants' general demurrer to unlawful surveillance counts, as the indictment did not fail based on O.C.G.A. § 16-11-66(a), as the one-party-consent rule did not apply to the video recording. State v. Cohen, 302 Ga. 616, 807 S.E.2d 861 (2017).

- Trial court erred in concluding that O.C.G.A. §§ 16-11-62(2) and16-11-66(a) were unconstitutionally vague as people of ordinary intelligence could understand that people could be found guilty if they used a device to secretly photograph or video record others in private places. State v. Cohen, 302 Ga. 616, 807 S.E.2d 861 (2017).

- O.C.G.A. § 16-11-66 does not allow parents to vicariously consent to interceptions of their children's telephone calls. Bishop v. State, 241 Ga. App. 517, 526 S.E.2d 917 (1999).

Child can not give consent to the recording of the child's phone calls either by implication or by subsequent ratification. Bishop v. State, 241 Ga. App. 517, 526 S.E.2d 917 (1999).

- Denial of defendants' motion to suppress the admission of the two tape recordings of their conversations with an informant made on the ground that the informant did not consent to the conversations being recorded is not clearly erroneous since the evidence on this issue was in conflict with several law officers testifying that the informant was fully aware of what the informant was doing and was not coerced into consenting to the conversations and the recording thereof and the informant's testimony, while somewhat equivocal, indicated the contrary. Ramsey v. State, 165 Ga. App. 854, 303 S.E.2d 32 (1983).

Former Code 1933, § 26-3006 (see now O.C.G.A. § 16-11-66) dealt solely with interception and acts following interception. Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, on remand, 142 Ga. App. 802, 237 S.E.2d 243 (1977), for comment, see 29 Mercer L. Rev. 351 (1977).

Former Code 1933, § 26-3006 (see now O.C.G.A. § 16-11-66) did not prohibit actual parties to conversation from recording or divulging it. Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, on remand, 142 Ga. App. 802, 237 S.E.2d 243 (1977), for comment, see 29 Mercer L. Rev. 351 (1977); Fetty v. State, 268 Ga. 365, 489 S.E.2d 813 (1997);.

Involvement in divorce action is not equivalent of implied consent to have one's telephone line tapped. Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971).

- Trial counsel was not ineffective for failing to file a motion to suppress recordings of an appellant's telephone calls while the appellant was in jail because while O.C.G.A. § 16-11-62(4) prohibited any person from intentionally and secretly intercepting a telephone call by use of any device, instrument, or apparatus, O.C.G.A. § 16-11-66(a) provided an exception to this rule when one of the parties to the communication had given prior consent and that consent was implied based on the statements during the recording that all jail phone calls were recorded or monitored. Boykins-White v. State, 305 Ga. App. 827, 701 S.E.2d 221 (2010).

Because none of the types of communication encompassed by O.C.G.A. § 16-11-66(a) were at issue, because the parties stipulated that the video recordings the victim made between the victim and defendant without defendant's consent were in a private place, and because the participant's exception in § 16-11-66(a) applied to O.C.G.A. § 16-11-62 in its entirety, pursuant to O.C.G.A. § 16-11-67, the trial court properly excluded the recordings. State v. Madison, 311 Ga. App. 31, 714 S.E.2d 714 (2011).

Because the commander in charge of jail administration testified that use of the language line or a live interpreter was the jail's policy, and jail records showed that the defendant was booked in at the same time that the warning form was signed, the trial court was authorized to find that the defendant was informed about and consented to the recording of the defendant's telephone calls from the jail; thus, the recordings of the defendant's telephone calls to the defendant's spouse were admissible. Leekomon v. State, 351 Ga. App. 836, 832 S.E.2d 437 (2019), cert. denied, No. S20C0283, 2020 Ga. LEXIS 412 (Ga. 2020).

Cited in Farmer v. State, 228 Ga. 225, 184 S.E.2d 647 (1971); Ansley v. State, 124 Ga. App. 670, 185 S.E.2d 562 (1971); Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973); Adams v. State, 130 Ga. App. 362, 203 S.E.2d 314 (1973); Cross v. State, 233 Ga. 960, 214 S.E.2d 374 (1975); Cross v. State, 136 Ga. App. 400, 221 S.E.2d 615 (1975); United States v. Ransom, 515 F.2d 885 (5th Cir. 1975); Connally v. State, 237 Ga. 203, 227 S.E.2d 352 (1976); Williams v. State, 142 Ga. App. 764, 236 S.E.2d 893 (1977); Mitchell v. State, 142 Ga. App. 802, 237 S.E.2d 243 (1977); State v. Birge, 240 Ga. 501, 241 S.E.2d 213 (1978); O'Dillon v. State, 245 Ga. 342, 265 S.E.2d 18 (1980); Drake v. State, 245 Ga. 798, 267 S.E.2d 237 (1980); Ford v. State, 160 Ga. App. 707, 288 S.E.2d 39 (1981); Green v. State, 250 Ga. 610, 299 S.E.2d 544 (1983); Stephenson v. State, 171 Ga. App. 938, 321 S.E.2d 433 (1984); Peugh v. State, 175 Ga. App. 90, 332 S.E.2d 384 (1985); Norris v. State, 176 Ga. App. 164, 335 S.E.2d 611 (1985); Hall v. State, 176 Ga. App. 428, 336 S.E.2d 291 (1985); Duren v. State, 177 Ga. App. 421, 339 S.E.2d 394 (1986); Martin v. State, 179 Ga. App. 551, 347 S.E.2d 247 (1986); Reeves v. State, 192 Ga. App. 12, 383 S.E.2d 613 (1989); Lawrence v. State, 195 Ga. App. 320, 393 S.E.2d 475 (1990); Kemp v. State, 201 Ga. App. 629, 411 S.E.2d 880 (1991); Gavin v. State, 292 Ga. App. 402, 664 S.E.2d 797 (2008).

Conversations in Furtherance of Crime

One-party consent requirement renders exception constitutional.

- Requirement of consent of one party ensures that overhearing by third parties is by divulgence of one party to conversation, which is constitutionally permissible, and not by surreptitious interception unbeknownst to any party to conversation, which is constitutionally impermissible. Goodwin v. State, 154 Ga. App. 46, 267 S.E.2d 488 (1980).

- One-party consent provision of former Code 1933, § 26-3006 (see now O.C.G.A. § 16-11-66) was applicable to face-to-face oral communication. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976); Brooks v. State, 141 Ga. App. 725, 234 S.E.2d 541 (1977).

Face-to-face communications are included in the consent exceptions to the electronic surveillance prohibitions of former Code 1933, § 26-3006 (see now O.C.G.A. § 16-11-66). Thornton v. State, 139 Ga. App. 483, 228 S.E.2d 919 (1976).

Face-to-face conversations were intended by legislature to be included in consent exceptions contained in former Code 1933, § 26-3006 (see now O.C.G.A. § 16-11-66). Humphrey v. State, 231 Ga. 855, 204 S.E.2d 603, cert. denied, 419 U.S. 839, 95 S. Ct. 68, 42 L. Ed. 2d 66 (1974).

- Legislature intended former Code 1933, § 26-3006 (see now O.C.G.A. § 16-11-66) to govern specifically conversations or communications arranged or anticipated by one of the parties for purpose of interception, recording, and divulging. Goodwin v. State, 154 Ga. App. 46, 267 S.E.2d 488 (1980).

- Former Code 1933, § 26-3006 (see now O.C.G.A. § 16-11-66) allowed law enforcement officers to intercept, record, and divulge a conversation, where at least one party thereto consents, and where conversation is a crime or is in furtherance of a crime. Goodwin v. State, 154 Ga. App. 46, 267 S.E.2d 488 (1980).

- Former Code 1933, § 26-3006 (see now O.C.G.A. § 16-11-66) was intended to cover situations in which conversation was between two private parties, one of whom consented to interception by some third party, most likely a law enforcement agency. This does not mean that if one party to conversation was a police officer who had consented that the section cannot apply. Cross v. State, 128 Ga. App. 837, 198 S.E.2d 338 (1973).

- Anyone who makes a statement to another knows that person to whom it was made may repeat it to others who may use it against the person; mere fact that person to whom statement was directed made a recording without knowledge of person recorded does not vitiate its evidentiary value. Quaid v. State, 132 Ga. App. 478, 208 S.E.2d 336 (1974).

- State agent may divulge contents of conversations with accused by carrying radio equipment which simultaneously transmits conversations to other agents monitoring transmission frequency, and police officers who are simultaneously listening to conversation through electronic amplification of conversation may testify as to what they have heard. Goodwin v. State, 154 Ga. App. 46, 267 S.E.2d 488 (1980).

Taped testimony of incestuous-rape victim's initiated conversation with assailant found admissible. See Legg v. State, 207 Ga. App. 399, 428 S.E.2d 87 (1993); Cofield v. State, 216 Ga. App. 623, 455 S.E.2d 342 (1995), overruled by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

RESEARCH REFERENCES

ALR.

- Opening, search, and seizure of mail, 61 A.L.R.2d 1282.

What constitutes an "interception" of a telephone or similar communication forbidden by the Federal Communications Act (47 U.S.C. § 605) or similar state statutes, 9 A.L.R.3d 423.

Permissible surveillance, under state communications interception statute, by person other than state or local law enforcement officer or one acting in concert with officer, 24 A.L.R.4th 1208.