Lawmakers Are Wrong to Attack One-Party Consent Law
Northwest Georgia Senator and Rules Chairman Jeff Mullis wants to make Georgia a two-party consent state and he’s never been more wrong.
Under current Georgia law, only one party must consent to being recorded in a conversation and that one party can be the recording party. (Ex: If I’m having a conversation with Bob and I decide to record it, I don’t need to ask Bob’s permission. I’m the consenting party.)
But this is nothing more than a poorly structured elected official protection act – or “Cagle’s Law.” Mullis can say it isn’t about our former Lieutenant Governor who was recorded on tape during the 2018 election cycle saying he backed ‘bad public policy’ because of [expletive] politics, but Senator Jeff Mullis, who donated more than $10,000 to Cagle’s failed campaign, is doing this to make sure no one else gets Cagled. The bill is sponsored by other Cagle supporters including Senators Larry Walker, Steve Gooch, John Wilkinson, Butch Miller, and Ellis Black.
Mullis filed Senate Bill 59 this week, which would bring Georgia in line with 12 other states in the U.S. that require both parties give consent to being recorded – California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. (Ex: I consent to conversation with Bob and both Bob and I announced that we consent to being recorded) The other 36, including Georgia, protect individuals in consensual conversations.
Mullis was quoted in the AJC saying that people have “a right to know when people are recording them.”
He’s wrong about that. Rights are found in the Constitution. The Constitution is supposed to restrict the government, not people. The legislation not only restricts people individually but interferes in private interactions between two parties who are already consenting to have a conversation. The government does not need to be involved.
These lawmakers would be limiting a tool long used by the media, a tool that has long allowed the media to hold elected officials accountable. Perhaps that’s why they want to make it illegal. Remember the Planned Parenthood videos back in 2015? Some of that was protected by one-party consent laws. In California, they faced felony charges. Mitt Romney was recorded in 2012 talking about Obama voters and the ACORN voting process recordings rocked the election in 2008. These seem to exclude the times when private citizens have taken things they recorded to the media for distribution because a crime was committed or something unethical was happening in their community.
In rural Georgia, I was able to highlight the poor behavior of a magistrate judge because of the one-party consent rules. Ironically, the judge and his attorney were not aware of Georgia’s one-party consent law and even dangled the idea of criminal charges in front of me because I released the recording of his inappropriate behavior.
From the Atlanta Journal Constitution:
It’s something that Georgia First Amendment Foundation President Richard T. Griffiths said would be “very bad for the public.”
Not only would it have an impact on investigative journalism, it would keep people from being able to pursue legal action against people trying to commit fraud over the phone, Griffiths said.
The current law is direct, clear, and takes less than a paragraph to explain, but Mullis and his friends in the Senate want to change that in the name of a failed political campaign and a candidate who amounted to an even bigger failure. I can’t think of a worse reason to enact a law, but I’ve come to know that our lawmakers thrive in environments where the public has less and politicans can do more.
Criminal charges for recording a conversation between adults. That’s what these Senators want to do with Senate Bill 59.
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Jessica Szilagyi
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Not much to comment about other than to concur in expression of opposition to the legislation.
Not only would Cagle’s Law negatively affect investigative journalism, it would also serve to insulate and protect wrong-doers from civil legal investigation.
The civil justice system is an incredibly powerful tool to hold people accountable. Some legislators and, especially, some lobbyists want to make the civil justice system less potent. After all, the civil trial places a pauper on par with a prince. Princes don’t like that.
As a result of such antagonism to the civil justice system, would-be litigants (and their attorneys and investigators) need to engage in more extensive pre-suit investigation in order to create a more extensive factual basis for the complaint before formal discovery. Recording conversations with, for example, sexual harassers in the work place or bosses who harbor sexual harassers is a very powerful tool.
Cagle’s Law is counter to justice. Full stop.
If anyone here knows Mullis, then you’d know that this is simply a tongue-in-cheek measure.
Who’s tongue and who’s cheek?
Rights are found in the Constitution.
… and the Georgia Constitution protects an individual’s right to privacy. (See In re C.P.,274 Ga. 599 (2001) (“Liberty of privacy exists and is entitled to continual recognition”)).
There’s a valid debate to be had about balancing the right to privacy with the freedom of the press, but saying folks don’t have a right to know when people are recording them because it isn’t “in the Constitution” is incorrect.
The case you just cited actually held that the minor in question does not possess the “right to privacy” as the facts there revolved around a sexual act in a public restroom.
More to the point, the “right to privacy” is a right protecting individuals from the government’s invasion of their privacy.
Indeed, there are specific statutes in which the legislature (or congress) has created an independent cause of action via tort law to protect one’s privacy from the intrusion of another. But that authority exists via statute, not the constitution.
I cited to that case solely for the statement confirming that – yes – the Georgia Constitution protects a right to privacy. The Constitution is also the basis for common law protections of privacy rights from invasion by private individuals – not just the government.
My initial feeling on this privacy argument is that privacy means private activity. A conversation is not a private activity. But perhaps there could be an argument to say that if someone objects to being recorded- before a conversation starts- that the recording couldn’t be published or something. I can’t even buy that suggestion much, though, because admissions (records or evidence of what someone said) are often critical pieces of evidence. It even has its own hearsay exemption. So, no matter what, if you don’t want the evidence to exist, just don’t speak the evidence into existence.
Most two-party consent states have exceptions for recording public officials or police officers (while I practice privacy law, I don’t claim to know every state’s approach to recording consent). Some one party state’s have carve-outs that require notice or two-party consent when the recording device is permanently installed or hidden.
Balance, I disagree that a conversation is not private activity. Phone calls are decidedly private, which is why the Constitution requires the government to get a warrant before recording them and it’s why there are anti-eavesdropping statutes. Certainly a public speech or a even a one-on-one conversation in a public place are conceivably public, a conversation behind closed doors or a phone call should be afforded some level of privacy.
Some interesting twists def seem possible,
When a third party is recording a phone conversation unbeknownst (sp.?) to the people having a conversation, that would certainly seem to lack the consent of any actual party to the conversation. But a public place could conceivably even change that.
But I don’t see any privacy between the actual parties to a convo, because talking is sharing. Talking is disclosing. And if you’re sharing the info, there is no invasion for the info.
You could of course have grounds for confidentiality or privilege or whatnot. But things like that better be made known ahead of time- and best to get a recording of the other person agreeing to confidentiality.
I’m just playing devil’s advocate here because 1) this is my day job and 2) I think there are merits to both approaches.
While talking is sharing, there’s a distinct difference between a conversation that is intended to be private and one that is made out in public. For every Clete Tibbals out there secretly recording the Lt. Governor, there’s folks having affairs on their spouses, folks telling a friend a personal secret, pop stars giving consent for Kanye West to use the line “I made that b**** famous,” or saying things they’d really rather not have broadcast to the wider world.
My original point has gotten lost a little bit here: contrary to the assertion of this article, the Georgia Constitution recognizes a right of privacy. The Georgia Constitution also recognizes the rights of a free press. The challenge with this law – as is the challenge with any law – is balancing those rights. That’s why two-party states have crafted exceptions for recordings of public officials, newsgathering, or recording police officers. There’s a way to strike the balance, which is why I’m not necessarily opposed to this bill until I see it in final form.
Do I have permission to screen shot this conversation so I can remember it in the future? Don’t think I should have to ask this. What about bodycams, trafficcams, babycams, taking a picture of a crowd in a public place that is in video format.
Sounds like they would have to carve out some exceptions to two party consent.
However, none of this would be necessary if Cagle had won. Now we’re all going to suffer to make up for his poorly run campaign.
All the women who are being harassed by members of the Senate are also being punished because David Shafer lost his race. God forbid that anymore charter members of the homogeneous party of Georgia lose an election or we’re going to a Republican version of the county unit system.
https://www.georgiaencyclopedia.org/articles/counties-cities-neighborhoods/county-unit-system
I am in 100% opposition with the Bill and My state reps will know it too. Bad, bad bill, shame on Jeff Mullis .
I believe we agree on this one!
What about security cameras? Why should a conversation be more protected than your image? If the video includes sound does a different standard apply?
Shock and Horror! Lordy Raleigh and Benevolus agree! Well its bound to happen sooner or later on certain subject’s I just hope the legislature give this bill the proper send off into the round can on the floor beside their desk at the capital…. Terrible terrible bill…..
A lot of the conversation here is about the merits of the legislation. I just can’t get there!
Shouldn’t we be focused on the motivation? We’re now in a place where legislation is being introduced and rules are being implemented (sexual harassement) solely in reaction to what happened in the last election?
I’m afraid we are headed to more and more legislation being introduced to keep the republican majority in power and for no other reason. This is dangerous and sets bad precedent. I didn’t like the Delta tax break but I hated what Cagle did because the of the reason he did it. To me, nothing mattered after I understood his motives.
Just ask yourself, if David Shafer and Casey Cagle had won would any of this be happening? If the answer is no, why are we discussing the merits of the legislation?