EAVESDROPPING: What To Know

 

Georgia’s surveillance statute is found primarily in O.C.G.A. § 16-11-62, which generally prohibits certain forms of secretly observing or recording people when they are in a place where they have a reasonable expectation of privacy. The basic idea is pretty simple: Georgia allows people to be recorded or observed in public or other places where there is no reasonable expectation of privacy, but the law puts significant restrictions on secretly recording someone who is in a private place and out of public view.

Under § 16-11-62(2), it is generally unlawful to use a device—such as a phone, camera, or other recording equipment—to observe, photograph, or record another person’s activities without that person’s consent when those activities occur in a private place and are not in public view. So, when evaluating a potential surveillance violation, you want to ask several questions: Was a device used? Was the person recorded or observed without consent? Was the person in a private place? And was what the person was doing out of public view? If those circumstances are present, the conduct potentially falls within the statute.

The phrase “private place” is particularly important. Georgia courts have generally focused on whether the person had a reasonable expectation of being protected from intrusion or surveillance in the particular location. A bathroom, bedroom, or similarly secluded area would ordinarily present a much stronger privacy interest than a driveway, parking lot, hallway, or other area visible to the public. Importantly, the statute is concerned with the place where the person is located, rather than simply whether the subject matter being recorded is inherently private.

It is also important not to confuse Georgia’s one-party-consent rule for recording conversations with the law governing visual surveillance. Georgia generally permits a person who is a party to a conversation to record that conversation without obtaining consent from everyone else. But that does not mean someone can secretly videotape another person in a private location. Visual surveillance under § 16-11-62 has its own requirements, and the fact that someone could legally record a conversation does not necessarily give that person permission to secretly record video of another person’s private activities.

There are also statutory exceptions. For example, Georgia law allows certain surveillance conducted for security, crime prevention, or crime detection in areas where there is no reasonable expectation of privacy. There are also provisions addressing surveillance on residential property and surveillance conducted by law enforcement officers in the lawful performance of their duties. That’s why a homeowner having a security camera pointed toward a driveway is fundamentally different from someone secretly placing a camera inside a bathroom or bedroom.

Section 16-11-62(3) is also worth paying attention to because it addresses going onto or about another person’s premises or a private place for the purpose of invading that person’s privacy through eavesdropping or secretly observing the person’s activities. So the statute isn’t

limited to situations where someone simply happens to have a camera running; the circumstances surrounding the observation and the person’s purpose can matter as well.

From a defense perspective, I would not reduce a surveillance case to simply, “There was a camera and the person didn’t consent.” The better analysis is to focus on where the alleged victim was, whether that location actually qualifies as a private place, whether the activity was truly out of public view, how the recording was made, who owned or controlled the property, whether anyone consented, whether a statutory exception applies, and what the defendant’s purpose was. Those details can make the difference between conduct that falls squarely within § 16-11-62 and conduct that does not.

Finally, there can be an important evidentiary consequence. Under O.C.G.A. § 16-11-67, evidence obtained in violation of Georgia’s surveillance and wiretap provisions is generally inadmissible, subject to the statute’s exceptions. So in a criminal case, there are really two separate questions: first, did the State prove that the defendant violated § 16-11-62; and second, if the recording was obtained illegally, is the State nevertheless permitted to use that recording or evidence derived from it? Those two issues should be analyzed separately.

If you’ve been charged under Georgia’s surveillance statute give our office a call TODAY at (404)581-0999.