Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

Georgia

Current status

Georgia has open privacy laws that regulate covert surveillance actions, including eavesdropping on conversations, actions, content of electronic communication, divulging or distributing such contents, or committing “similar acts” that invade the privacy of others. The law specifically uses “any device”, “any means”, “any other acts” and other such open terminology, thus we can assert that it is the lawmaker’s intention to cover a multitude of eavesdropping circumstances.

Impact of law

Georgia is a “one party consent state” in regards to interception of communications and allows the recording of a communication by someone who is a party to that communication or has received prior consent from one party to the communication. In other words, it is legal for someone to record his or her private conversations without notifying the other parties.

However, the law requires consent of all parties to record activities which occur in private places. Georgia law even sets an open clause, outlawing any person that commits “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”[1].

The law also sets specific exceptions to the above provisions, allowing the parents of minor children to intercept private telephonic and electronic communications without consent from either parties engaged in the conversation[2] or the use of surveillance systems on private property or residence for security purposes.

References to Physical TSCM

The law references “the use of any device, to observe, photograph, or record the activities of another” and “the use of any device, instrument, or apparatus to intercept the contents of a message”. We thus assert that the law specifically addresses physical eavesdropping devices.

References to Cyber TSCM

Cyber means of surveillance can be considered under the first clause of Georgia eavesdropping law, that holds to be unlawful for 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”. The law states the prohibited actions (overhearing, transmitting, recording), the character of the action (in a clandestine manner) and the place of origin (any private place). If a personal computer, mobile phone or other device can be considered a private place, then cyber means of eavesdropping are also covered by Georgia wiretapping statute.

Criminal implications

Violations of the provisions of Georgia’s eavesdropping law are considered felonies punishable by imprisonment for one to five years or a fine up to $10,000.00, or both[3].

Civil implications

Code excerpts

O.C.G.A. 16-11-62[4]Eavesdropping, surveillance, or intercepting communication which invades privacy of another; divulging private message

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:

(B) 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; or […]

(C) 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;

(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.

O.C.G.A. 16-11-66[5].

(a) 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.

(d) 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 telephone conversations of such minor child […]

O.C.G.A. 16-11-67[6]. Admissibility of evidence obtained in violation of part

No 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.

O.C.G.A. 16-11-69[7]. Penalty for violations of part

Except as otherwise provided in subsection (d) of Code Section 16-11-66.1, any person violating any of the provisions of this part shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years or a fine not to exceed $10,000.00, or both.

 

 

[1] Source: http://law.justia.com/codes/georgia/2010/title-16/chapter-11/article-3/part-1/16-11-62

[2] Source: http://law.justia.com/codes/georgia/2010/title-16/chapter-11/article-3/part-1/16-11-66

[3] Source: http://law.justia.com/codes/georgia/2010/title-16/chapter-11/article-3/part-1/16-11-69/

[4] Source: http://law.justia.com/codes/georgia/2010/title-16/chapter-11/article-3/part-1/16-11-62

[5] Source: http://law.justia.com/codes/georgia/2010/title-16/chapter-11/article-3/part-1/16-11-66

[6] Source: http://law.justia.com/codes/georgia/2010/title-16/chapter-11/article-3/part-1/16-11-67/

[7] Source: http://law.justia.com/codes/georgia/2010/title-16/chapter-11/article-3/part-1/16-11-69/