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
§ 16-11-62. Eavesdropping, Surveillance, or Intercepting Communication Which Invades Privacy of Another; Divulging Private Message

Universal Citation: GA Code § 16-11-62 (2020)

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; provided, however, that it shall not be unlawful:
    1. To use any device to observe, photograph, or record the activities of persons incarcerated in any jail, correctional institution, or other facility in which persons who are charged with or who have been convicted of the commission of a crime are incarcerated, provided that such equipment shall not be used while the prisoner is discussing his or her case with his or her attorney;
    2. For an owner or occupier of real property to use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are on the property or an approach thereto in areas where there is no reasonable expectation of privacy;
    3. To use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are within the curtilage of the residence of the person using such device. A photograph, videotape, or record made in accordance with this subparagraph, or a copy thereof, may be disclosed by such resident to the district attorney or a law enforcement officer and shall be admissible in a judicial proceeding, without the consent of any person observed, photographed, or recorded; or
    4. For a law enforcement officer or his or her agent to use a device in the lawful performance of his or her official duties to observe, photograph, videotape, or record the activities of persons that occur in the presence of such officer or his or her agent;
  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;
  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;
  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.

(Ga. L. 1967, p. 844, § 1; Code 1933, § 26-3001, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1976, p. 1100, § 1; Ga. L. 1985, p. 149, § 16; Ga. L. 2000, p. 491, § 1; Ga. L. 2000, p. 875, § 2; Ga. L. 2015, p. 1046, § 2/SB 94.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2000, a comma was deleted following "detection" in subparagraphs (2)(B) and (2)(C), respectively.

Editor's notes.

- Ga. L. 2000, p. 875, § 3, not codified by the General Assembly, provides that: "This Act shall become effective July 1, 2000, and shall apply with respect to offenses committed on or after that effective date. This Act shall not affect or abate the status as a crime of any offense committed prior to that effective date, nor shall the prosecution of such crime be abated as a result of this Act."

Law reviews.

- For annual survey on domestic relations, see 65 Mercer L. Rev. 107 (2013). For article on domestic relations, see 66 Mercer L. Rev. 65 (2014). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 79 (2015). For note on 2000 amendment of this Code section, see 17 Ga. St. U.L. Rev. 102 (2000). For note, "Location, Location, Location: A 'Private' Place and Other Ailments of Georgia Surveillance Law Curable Through Alignment with the Federal System," see 46 Ga. L. Rev. 1089 (2012). For comment on Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), holding employer defendant may not use independent contractor defense to invasion of privacy suit resulting from actions of investigator working in his behalf, see 9 Ga. St. B.J. 519 (1973). 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).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Waiver of Right to Privacy

General Consideration

Right of privacy is not absolute.

- Right of privacy must be kept within its proper limits, and in its exercise must be made to accord with rights of those who have other liberties, as well as rights of any person who may be properly interested in matters which are claimed to be of purely private concern. Bodrey v. Cape, 120 Ga. App. 859, 172 S.E.2d 643 (1969).

Former Code 1933, § 26-3001 (see now O.C.G.A. § 16-11-62) did not violate right of privacy when interpreted to refer only to third parties. Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, on remand, 142 Ga. App. 802, 237 S.E.2d 243 (1977).

Search warrant properly set forth probable cause to search defendant's cell phone.

- Trial court did not abuse its discretion in finding that there was probable cause to issue a search warrant for the defendant's phone as it was reasonable to believe that the object of the search would be found inside the cell phone, thus, although the search warrant did not specifically reference the memory card, a search of the phone would necessarily include its contents, which included the memory card. Serdula v. State, Ga. App. , 845 S.E.2d 362 (2020).

Subparagraph (2)(C) held irreconcilable.

- Under Ga. Laws 2000, p. 491, § 1, one who surreptitiously records the activities of another within the curtilage of his or her home has done nothing unlawful because O.C.G.A. § 16-11-62(2)(C) creates an exception to the general prohibition set forth in § 16-11-62 but under Ga. Law 2000, p. 875, § 2, the same conduct is deemed unlawful; thus, the two statutes pertaining to the same conduct are irreconcilably inconsistent, therefore, subparagraph (2)(C) does not survive. Rutter v. Rutter, 294 Ga. 1, 749 S.E.2d 657 (2013) (decided prior to the amendment to Code Section28-9-5 enacted by Ga. L. 2014, p. 866, § 28/SB 340). (The version of Code Section 16-11-62 that was in effect on the date of this decision was subsequently reenacted and adopted by the General Assembly in 2014, by Ga. L. 2014, p. 866, § 54/SB 340.)

Manifest intent of legislature in enacting former Code 1933, § 26-3001 (see now O.C.G.A. § 16-11-62) was revealed by its plain and unambiguous language in paragraph (1) that "any person" was prohibited from intentionally transmitting or recording in a clandestine manner the private conversation of another person which originates in a private place unless one of the statutory exceptions is met. Mitchell v. State, 142 Ga. App. 802, 237 S.E.2d 243 (1977).

O.C.G.A. § 16-11-62 protects all persons from invasions upon their privacy, including interspousal invasions. Ransom v. Ransom, 253 Ga. 656, 324 S.E.2d 437 (1985).

Both federal and Georgia law prohibit only clandestine taping by persons not parties to the conversations. Parrott v. Wilson, 707 F.2d 1262 (11th Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983).

Former Code 1933, § 26-3001 (see now O.C.G.A. § 16-11-62) implicitly refers to persons who are not parties to conversation. Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, on remand, 142 Ga. App. 802, 237 S.E.2d 243 (1977).

Most reasonable interpretation of statute and of the intention of the legislature in adopting the statute is that the statute should not apply to one who is a party to the conversation. State v. Birge, 240 Ga. 501, 241 S.E.2d 213, cert. denied, 436 U.S. 945, 98 S. Ct. 2847, 56 L. Ed. 2d 786 (1978); Fetty v. State, 268 Ga. 365, 489 S.E.2d 813 (1997).

Former Code 1933, § 26-3001 (see now O.C.G.A. § 16-11-62) was inapposite when related to one who was a party to the conversation itself. One does not intercept or overhear a conversation that was made directly to that person. The person was not an eavesdropper nor does the person have the conversation under surveillance. Cross v. State, 128 Ga. App. 837, 198 S.E.2d 338 (1973).

Former Code 1933, § 26-3001 (see now O.C.G.A. § 16-11-62) did not prohibit actual parties to conversation from recording or divulging the conversation. Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, on remand, 142 Ga. App. 802, 237 S.E.2d 243 (1977).

It is not a crime for a party to a conversation to record the conversation. McCallum v. Hinson, 489 F. Supp. 627 (M.D. Ga. 1980).

O.C.G.A. § 16-11-62 does not prohibit the recording of a conversation by one of the actual parties thereto. Sheppard v. Reid, 198 Ga. App. 703, 402 S.E.2d 793 (1991).

Officer's recording part of official duties.

- When the defendant was convicted of one count of sexual battery and five counts of child molestation, the officer was recording the officer's interaction with the defendant and the defendant's wife as part of the officer's official duties, the recording was not prohibited by O.C.G.A. § 16-11-62, and the trial court did not abuse the court's discretion in admitting the recording into evidence. Solis-Macias v. State, Ga. App. , S.E.2d (Sept. 4, 2020).

Vagueness not shown.

- 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).

Secretly recording conversation without consent of other party.

- Former Code 1933, § 26-3001 (see now O.C.G.A. § 16-11-62) did not prohibit one party to a conversation from secretly recording or transmitting it without knowledge or consent of other party. State v. Birge, 240 Ga. 501, 241 S.E.2d 213, cert. denied, 436 U.S. 945, 98 S. Ct. 2847, 56 L. Ed. 2d 786 (1978); Hall v. State, 155 Ga. App. 724, 272 S.E.2d 578 (1980); Thompson v. State, 191 Ga. App. 906, 383 S.E.2d 339, cert. denied, 191 Ga. App. 923, 383 S.E.2d 339 (1989).

Former Code 1933, § 26-3001 (see now O.C.G.A. § 16-11-62(1)) prohibited clandestine interception of private conversations except under conditions of former Code 1933, § 26-3006 (see now O.C.G.A. § 16-11-66). Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, on remand, 142 Ga. App. 802, 237 S.E.2d 243 (1977).

Cordless telephone conversations are protected from interception by O.C.G.A. § 16-11-62. Barlow v. Barlow, 272 Ga. 102, 526 S.E.2d 857 (2000).

Intent of paragraph (5) of section.

- Former Code 1933, §§ 26-3001 and 26-3004 (see now O.C.G.A. §§ 16-11-62(5) and16-11-64) were not intended to apply to a sovereign absent appropriate naming of sovereign, but, rather, were intended merely to state rules relating to admissibility of evidence in courts in this state and not to prohibit admissibility in courts of other jurisdictions, particularly not in courts of the United States. United States v. Hayes, 445 F. Supp. 455 (M.D. Ga. 1977).

Construction of "record" as used in paragraph (1).

- Word "record" used in former Code 1933, § 26-3001(1) (see now O.C.G.A. § 16-11-62(1)) must be construed with reference to words "overhear" and "attempt to overhear," and overall intent of section to make eavesdropping and surveillance of a conversation a criminal act, i.e., interception of conversation by third party. Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509, on remand, 142 Ga. App. 802, 237 S.E.2d 243 (1977).

Construction of "without the consent of all persons observed."

- O.C.G.A. § 16-11-62(2) contains the language, "without the consent of all persons observed," which the legislature has not included in § 16-11-62(1); the plain import of these words illustrates the legislative intent that the consent required under § 16-11-62(2) is that of each individual observed. It follows then that "any person" as used in that subsection was not intended to exclude one who records an activity in which the person willingly participates. Gavin v. State, 292 Ga. App. 402, 664 S.E.2d 797 (2008), cert. denied, 2008 Ga. LEXIS 937 (Ga. 2008).

Evidence obtained in violation of state law, but without violating federal law is admissible in federal court. United States v. Hayes, 445 F. Supp. 455 (M.D. Ga. 1977).

Recorded telephone conversation properly admitted.

- With regard to a defendant's convictions for malice murder and kidnapping with bodily injury as a result of the defendant killing a former girlfriend who was also the mother of the defendant's two children, the trial court did not err by admitting an audiotape of a telephone conversation between the victim and the defendant since the state laid a proper foundation for the admission of the audiotape by adequately demonstrating that the victim was the person who made the tape, the victim was a party to the conversation, and the tape was not inadmissible under O.C.G.A. § 16-11-62. Griffin v. State, 282 Ga. 215, 647 S.E.2d 36 (2007), overruled on other grounds, Garza v. State, 284 Ga. 696, 670 S.E.2d 73 (2008).

Exception to "fruit of poisonous tree" doctrine.

- In a prosecution of defendant wife for solicitation of murder, where there was no state participation in an illegal tapping of initial phone conversation by her husband, the "fruit of the poisonous tree" doctrine did not require suppression of an undercover agent's subsequent surreptitiously taped conversations with defendant. Jordan v. State, 211 Ga. App. 86, 438 S.E.2d 371 (1993).

Store was not a private place.

- Defendant's act of using a cell-phone camera to take video recordings underneath the victim's skirt as the victim walked through the store where the defendant was employed did not violate the criminal invasion of privacy statute because the store was a public area, not a private place, and the statute criminalized conduct as to an individual who was in a private place. Gary v. State, 338 Ga. App. 403, 790 S.E.2d 150 (2016).

Private places.

- A 16-year old girl has an expectation of privacy, even from her parents or guardians, while in the bathroom of the family home. Kelley v. State, 233 Ga. App. 244, 503 S.E.2d 881 (1998).

Defendant's conviction for invasion of privacy was affirmed because the evidence showed that the stepdaughter did not give her consent to be recorded while taking a shower; thus, the defendant clearly did not have the consent of all persons. Price v. State, 320 Ga. App. 85, 738 S.E.2d 289 (2013).

Defendant's motion to dismiss for failure to state a claim was properly denied as to the counts of the complaint alleging conspiracy and concert action to videotape the plaintiff during sexual activity in the privacy of a bedroom without knowledge or consent because that action was an illegal recording and extortion was properly pled. Rogers v. Dupree, 349 Ga. App. 777, 824 S.E.2d 823 (2019), cert. denied, No. S19C1170, 2019 Ga. LEXIS 880 (Ga. 2019), cert. denied, No. S19C1132, 2019 Ga. LEXIS 889 (Ga. 2019).

Trial court erred in denying the defendant's motion in limine to preclude the state from tendering a cell phone recording of a dispute the defendant had with the defendant's pregnant wife in their living room because the court failed to make specific findings addressing whether the recording, made by an individual temporarily staying with the couple, took place in a private place with respect to both the audio and video portions of the recording. Weintraub v. State, 352 Ga. App. 880, 836 S.E.2d 162 (2019).

A 16-year-old girl had a reasonable expectation of privacy in her bedroom, even from her father. Snider v. State, 238 Ga. App. 55, 516 S.E.2d 569 (1999).

Both the victim and the other person who was secretly video recorded in the residence would have had a reasonable expectation to be safe from hostile intrusion or surveillance in the places they were video recorded as the recorded activities all took place in spaces within the residence that were outside of the public view. State v. Cohen, 302 Ga. 616, 807 S.E.2d 861 (2017).

Wiretapping without proper warrants constitutes unlawful search and seizure.

- Although a wiretap may not have been unlawful and not subject to prosecution under former Code 1933, § 26-3001 (see now O.C.G.A. § 16-11-62), this cannot alter the mandate of U.S. Const., amend. 4, which makes a wiretap an unlawful search and seizure without proper warrants. Farmer v. State, 228 Ga. 225, 184 S.E.2d 647 (1971).

Intercepting telephone conversations without following procedures.

- When investigator listening in on defendant's telephone conversations had not previously made written application under oath to district attorney or Attorney General, showing probable cause, and then obtained an investigation warrant from judge of superior court, the investigator was clearly within prohibition of former Code 1933, § 26-3001 (see now O.C.G.A. § 16-11-62). State v. Toomey, 134 Ga. App. 343, 214 S.E.2d 421 (1975).

When investigating officer answered the telephone during a legal search of the absent defendant's apartment stating that the officer was the defendant, testimony of the officer's conversation with the third party was substantial evidence which was properly used against the defendant for illegal possession of drugs. Teems v. State, 161 Ga. App. 339, 287 S.E.2d 774 (1982).

Police officer placing ear next to door does not convert otherwise permissible surveillance into illegal search. Cox v. State, 160 Ga. App. 199, 286 S.E.2d 482 (1981).

Telephone calls from jail.

- 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).

Defendant's conversation with the defendant's attorney, made through a three-way call by the defendant's girlfriend and recorded at the jail, were admissible and not privileged under former O.C.G.A. § 24-9-24 (see now O.C.G.A. § 24-5-501) because the defendant's girlfriend remained on the call and the telephone had signs and a message indicating that calls could be recorded. Such a recording did not violate O.C.G.A. § 16-11-62 because that statute contained an express exception for recording jail calls. Rogers v. State, 290 Ga. 18, 717 S.E.2d 629 (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).

Interception of a conversation between arrestees in the back seat of a patrol car did not offend wiretapping statutes. Burgeson v. State, 267 Ga. 102, 475 S.E.2d 580 (1996).

Counsel's recording of conversations of witnesses without consent.

- When counsel for a party clandestinely recorded conversations with witnesses, this practice violated no law; but the Code of Professional Conduct imposes a higher standard than mere legality. The American Bar Association's Committee on Ethics and Professional Responsibility has ruled that the recording of conversations of witnesses without their consent is unethical. Parrott v. Wilson, 707 F.2d 1262 (11th Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983).

Disclosure of numbers dialed from particular phone not prohibited.

- Disclosure of the contents of telephonic or radio communications is prohibited by O.C.G.A. § 16-11-62. The disclosure of information concerning what numbers were dialed from a particular phone is not prohibited. Szczuka v. Bellsouth Mobility, Inc., 189 Ga. App. 370, 375 S.E.2d 667 (1988).

Eavesdropping on cordless telephone conversations by use of an open air scanner constituted a violation of O.C.G.A. § 16-11-62. Tapley v. Collins, 41 F. Supp. 2d 1366 (S.D. Ga. 1999).

Inapplicable to cellular telephone conversations.

- O.C.G.A. § 16-11-62 does not prohibit the interception of a cellular telephone conversation given that the public accessibility of "FM" radio waves waives any justifiable expectation of privacy. Salmon v. State, 206 Ga. App. 469, 426 S.E.2d 160 (1992).

Officer's text messaging from another's cell phone did not violate statute.

- Sheriff's officer did not violate O.C.G.A. § 16-11-62 by communicating with a defendant via text messages on a cell phone that belonged to another, leading the defendant to believe that the defendant was communicating with the owner of the cell phone when the defendant agreed to buy drugs from the officer. Hawkins v. State, 307 Ga. App. 253, 704 S.E.2d 886 (2010), aff'd, 290 Ga. 785, 723 S.E.2d 924, (2012).

Officer's recording of crime scene on cell phone.

- When an ambulance was called to the scene of a child's injury, and a police officer recorded the defendant acting out the events on the officer's cell phone, allegedly contrary to O.C.G.A. § 16-11-62(2), any error in admitting the video was harmless because the evidence of guilt was overwhelming, and the recording was cumulative of other evidence. Sims v. State, 297 Ga. 401, 774 S.E.2d 620 (2015).

Private land under surveillance for illegal hunting was not a "private place" within the meaning of O.C.G.A. § 16-11-62; thus, in a prosecution for hunting over bait, a videotape of defendant showing defendant in possession of a bow and arrows on a hunting stand in that area was admissible. Quintrell v. State, 231 Ga. App. 268, 499 S.E.2d 117 (1998).

Development of film or showing photographs to others was not required for the offense of invasion of privacy. Kelley v. State, 233 Ga. App. 244, 503 S.E.2d 881 (1998).

Municipalities are entitled to sovereign immunity from liability under O.C.G.A. § 16-11-62(1) for unlawful eavesdropping or surveillance. Anderson v. City of Columbus, 374 F. Supp. 2d 1240 (M.D. Ga. 2005).

State official immune from tort liability for assumed intentional eavesdropping.

- Employee's suit against a supervisor at a state agency alleging illegal eavesdropping and invasion of privacy in violation of O.C.G.A. § 16-11-62 was dismissed based on immunity under O.C.G.A. §§ 50-21-21(b) and50-21-25(a); the supervisor was a state employee acting within the scope of the supervisor's employment when the supervisor answered the employee's accidental call and listened in on the employee's conversation with the employee's spouse, which was critical of the supervisor. Stephens v. Coan, 349 Ga. App. 147, 825 S.E.2d 525 (2019).

Recording of act by willing participant.

- When the defendant was accused of unlawful eavesdropping and surveillance under O.C.G.A. § 16-11-62(2) based on allegations that the defendant had taped the defendant having sex with a neighbor, the defendant's general demurrer was properly denied. The provision was not intended to exclude one who recorded an activity in which the person doing the recording willingly participated. Gavin v. State, 292 Ga. App. 402, 664 S.E.2d 797 (2008), cert. denied, 2008 Ga. LEXIS 937 (Ga. 2008).

Admission of audio only from videotape.

- Trial court did not err in denying the defendant's motion for new trial because the defendant failed to show that a reasonable probability existed that the outcome of the case would have been different but for trial counsel's failure to file a motion to suppress videotaped evidence showing the drug sales transactions in the defendant's residence on the ground that the videotaping was done in violation of O.C.G.A. § 16-11-62; the defendant acknowledged that the audio recording of what transpired inside the home was admissible, even if the video portion of the tape inside the home had been excluded, and in addition to the audio tape of the transaction, an informant testified in detail about the events during the two buys and identified the defendant as the person who was present and participated in both buys. Durham v. State, 309 Ga. App. 444, 710 S.E.2d 644 (2011).

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).

Attorneys with knowledge of recording were disqualified.

- In a suit between an employer against the employer's former housekeeper, who video recorded a sexual encounter between the two, the court held that the trial court did not abuse the court's discretion in disqualifying two of the former housekeeper's lawyers from further representation because the lawyers were necessary witnesses since the lawyers' testimony was relevant to where and from whom the recording device used to record the sexual encounter was obtained. Cohen v. Rogers, 338 Ga. App. 156, 789 S.E.2d 352 (2016).

Evidence sufficient for conviction.

- Evidence was sufficient for a rational finder of fact to find the defendant guilty beyond a reasonable doubt of unlawful eavesdropping and surveillance because the defendant peered through the first-floor bedroom window of an apartment and saw a teenage girl, who was working on a computer in another room, and defendant climbed through the window, picked up the cell phone that was on the girl's bed, and recorded her phone number; although the defendant initially told a police officer that the defendant had entered the apartment because the defendant needed money, the defendant later admitted that defendant wanted to get the girl's phone number so the defendant could call her. Hawkins v. State, 302 Ga. App. 84, 690 S.E.2d 440 (2010).

Cited in Pruitt v. State, 227 Ga. 188, 179 S.E.2d 339 (1971); Kendrick v. State, 123 Ga. App. 785, 182 S.E.2d 525 (1971); Satterfield v. State, 127 Ga. App. 528, 194 S.E.2d 295 (1972); Cross v. State, 233 Ga. 960, 214 S.E.2d 374 (1975); 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); Carter v. State, 239 Ga. 509, 238 S.E.2d 57 (1977); Meyer v. State, 150 Ga. App. 613, 258 S.E.2d 217 (1979); 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); Goodwin v. State, 154 Ga. App. 46, 267 S.E.2d 488 (1980); Ballweg v. State, 158 Ga. App. 576, 281 S.E.2d 319 (1981); Gaither v. State, 160 Ga. App. 705, 288 S.E.2d 18 (1981); Kesler v. State, 249 Ga. 462, 291 S.E.2d 497 (1982); Evans v. State, 252 Ga. 312, 314 S.E.2d 421 (1984); Elmore v. Atlantic Zayre, Inc., 178 Ga. App. 25, 341 S.E.2d 905 (1986); Tarrant v. City of Douglas, 190 Bankr. 704 (Bankr. S.D. Ga. 1995); Ewing v. Ewing, 333 Ga. App. 766, 777 S.E.2d 56 (2015); Prophitt v. State, 336 Ga. App. 262, 784 S.E.2d 103 (2016).

Waiver of Right to Privacy

Right of privacy may be waived either expressly or by implication. Bodrey v. Cape, 120 Ga. App. 859, 172 S.E.2d 643 (1969); Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), later appeal, 130 Ga. App. 254, 202 S.E.2d 701 (1973).

Implicit waiver may be found in such matters which law or public policy demands shall be kept private. Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), later appeal, 130 Ga. App. 254, 202 S.E.2d 701 (1973).

Extent of invasion authorized by waiver.

- Waiver authorizes invasion of right only to such extent as is necessary to be inferred from purpose for which waiver is made. A waiver for one purpose and in favor of one person or class does not authorize an invasion for all purposes or by all persons and classes. Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), later appeal, 130 Ga. App. 254, 202 S.E.2d 701 (1973).

Implied waiver by filing tort claim to extent of defendant's right to investigate.

- Right of privacy may be implicitly waived by one who files an action for damages resulting from a tort to the extent of defendant's intervening right to investigate and ascertain for oneself the true state of injury. Reasonableness of investigation under circumstances is a question for the jury. Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), later appeal, 130 Ga. App. 254, 202 S.E.2d 701 (1973).

Extent of tort defendant's investigative right.

- Defendant-employer has right to invade injured plaintiff's-employee's privacy, but only in a reasonable and proper manner and only in furtherance of its interest with regard to suit for personal injuries against it. It cannot delegate its duty of conducting a proper investigation to a third party so as to insulate itself from suit if third party fails to conduct a reasonable surveillance. Consequently, independent contractor rationale is not applicable in a case of this kind. Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), later appeal, 130 Ga. App. 254, 202 S.E.2d 701 (1973).

Implied waiver of right to privacy between former spouses.

- Since the father of a child has a vital and continuing interest and right in the welfare of his child, he does not as a matter of law incur liability for invasion of privacy for making observations and investigation into affairs and conduct of his former wife who at time had custody of his child. Under such circumstances there is an implied waiver of her right of privacy as to ex-husband and those acting as his agents. Bodrey v. Cape, 120 Ga. App. 859, 172 S.E.2d 643 (1969).

Wife did not waive her right of privacy by engaging in lascivious conversations over the family telephone, which had been tapped by her husband. Middleton v. Middleton, 259 Ga. 41, 376 S.E.2d 368 (1989).

Consent to record telephone calls is not implied consent to record private conversations.

- Because a city employee was allegedly unaware that a system for recording telephone calls to the city continued to record statements through the employee's headset after calls were terminated, the employee's consent to the recordation of telephone calls did not constitute implied consent to the interception and recordation of the employee's private conversation with co-workers. Anderson v. City of Columbus, 374 F. Supp. 2d 1240 (M.D. Ga. 2005).

Emails of employees.

- Trial court did not err in admitting into evidence an email because O.C.G.A. § 16-11-62 was not applicable; a former employer's president went into a former employee's office, which was owned by the business of which the president was the chief executive officer and was used by the employee, who was under the president's authority, and there was no evidence that the president eavesdropped on the employee's conversations or secretly observed the employee's activities. Sitton v. Print Direction, Inc., 312 Ga. App. 365, 718 S.E.2d 532 (2011).

RESEARCH REFERENCES

Am. Jur. 2d.

- 12 Am. Jur. 2d, Breach of Peace and Disorderly Conduct, § 30.

C.J.S.

- 86 C.J.S., Telecommunications, §§ 177, 195 et seq.

ALR.

- Mode of establishing that information obtained by illegal wiretapping has not led to evidence introduced by prosecution, 28 A.L.R.2d 1055.

Validity, construction, and effect of state legislation making wiretapping a criminal offense, 74 A.L.R.2d 855.

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.

Eavesdropping as violating right of privacy, 11 A.L.R.3d 1296.

Investigations and surveillance, shadowing and trailing, as violation of right of privacy, 13 A.L.R.3d 1025.

Observation through binoculars as constituting unreasonable search, 48 A.L.R.3d 1178, 59 A.L.R.5th 615.

Admissibility, in criminal prosecution, of evidence obtained by electronic surveillance of prisoner, 57 A.L.R.3d 172.

State or municipal liability for invasion of privacy, 87 A.L.R.3d 145.

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.

Construction and application of state statutes authorizing civil cause of action by person whose wire or oral communication is intercepted, disclosed, or used in violation of statutes, 33 A.L.R.4th 506.

"Caller ID" system, allowing telephone call recipient to ascertain number of telephone from which call originated, as violation of right to privacy, wiretapping statute, or similar protections, 9 A.L.R.5th 553.

Criminal prosecution of video or photographic voyeurism, 120 A.L.R.5th 337.

Applicability, in civil action, of provisions of Omnibus Crime Control and Safe Streets Act of 1968, prohibiting interception of communications (18 USCS § 2511 (1)), to interception by spouse, or spouse's agent, of conversations of other spouse, 139 A.L.R. Fed 517.

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