Lead Opinion
This court granted certiorari to review a decision of the Court of Appeals holding that a party to a telephone conversation commits a criminal act under Code § 26-3001 (a) by secretly recording the conversation where the conversation does not come under any exception set out in Code § 26-3006 and no warrant was obtained.
Code § 26-3001 (a) reads in pertinent part as follows: "Unlawful eavesdropping and surveillance — It shall be unlawful for: (a) any person in a clandestine manner to intentionally overhear, transmit or record, or attempt to overhear, transmit or record the private conversation of another which shall originate in any private place.. .”
In Cross v. State,
1. Everyone would concede that it is at best unclear under Code § 26-3001 (a) whether the General Assembly of Georgia has made the recording of a telephone conversation by one of the parties a crime. Any criminal law should be plain and unambiguous and not dependent upon the current conflicting views of appellate judges. See Grayned v. Rockford,
A recent decision of this court construed the statute as Cross did, by stating that it was enacted to prescribe "criminal offenses for eavesdropping, surveillance, and the use of devices to intercept telephone or other private communications.” Orkin v. State,
We adopt the construction of these statutes stated in Orkin and Cross, and disapprove the construction taken in State v. Mitchell, supra.
It is also contended that the interpretation given Code § 26-3001 (a) by the court violates some right of privacy. We disagree. No contention is made that this Code section in any way attempts to prohibit the revelation of the content of a telephone conversation by one of the parties to it. We have found no decision in any jurisdiction in the English speaking world that has made such a holding. The reason for our holding is well set out in a federal court opinion involving a defendant who telephoned a plaintiff and by means of wire-tapping at defendant’s end of the phone recorded the conversation without plaintiffs knowledge or consent. Later the conversation was broadcast over the radio. Considering plaintiffs right of privacy claim, the court held that it had not been violated:
"[The defendant] did not secretly listen to a
In summary, it is our opinion that the General Assembly intended:
(1) Code § 26-3001 (a) to prohibit third parties from intercepting in a clandestine manner a private conversation between two or more parties; except under the conditions of
(2) Code § 26-3006, which allows a third party to intercept, record and divulge the conversation, (a) where the parties to the conversation consent, or (b) where the message is a crime or is directly in furtherance of a crime and one party to the conversation consents;
(3) Code § 26-3004 provides another permission for third party interception under specified circumstances and procedures where the interceptor is a law enforcement officer; and
(4) none of these Code sections prohibits the actual parties to the conversation from recording or divulging it.
2. An affirmance in this case would criminalize conduct which, under controlling authorities, was lawful at the time it was done. This is what the Court of Appeals has, in fact, done by refusing to apply the doctrine of stare
The doctrine of stare decisis is usually interpreted to mean that the court should adhere to what it has previously decided and not disturb what is settled. It does not undercut the power of a court to overrule its previous decisions. On the contrary, it is a rule of policy tending to consistency and uniformity of decision and is not inflexible. The reason for the rule is more compelling in cases involving the interpretation of a statute. "Once the court interprets the statute, 'the interpretation . . . has become an integral part of the statute.’ Gulf C. & S. F. R. Co. v. Moser,
The new Criminal Code was enacted in 1968. Code § 26-3001 (a) was interpreted by the Court of Appeals in Cross in 1973. The Code has been amended on many occasions over the past three years in other particulars; however, the interpretation of Code § 26-3001 (a) given by the Cross decision has not been changed by the legislature. Code § 26-3001 was itself amended at the 1976 session of the General Assembly. Ga. Laws 1976, p. 1100. However, the language construed by Cross remains the same.
Applying these principles, it would be incongruous for the Court of Appeals to reinterpret a criminal statute more than three years later to criminalize conduct that it had previously held not to be a crime. Absent the overruling of the Cross decision by this court or its repudiation by the legislature, the public had a right to rely upon the 1973 interpretation by the Court of Appeals that this conduct did not amount to the commission of a crime.
The Court of Appeals erred in reinterpreting the statute.
Judgment reversed.
Concurrence Opinion
concurring specially.
I disagree with the interpretation of Code Ann. § 26-3001 contained in the Per curiam opinion. In my view, the statute prohibits "any person” 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. This is what the plain language of the statute provides and I take it the General Assembly meant what it said in the statute.
Of course, the statute covers persons who are not parties to the conversation, but it does not exclude (as it could have done) the parties to the conversation. The emasculated construction given by the majority amounts to a judicial license to tape private telephone conversations by private persons in private places. To my mind, this chills free speech and encourages a machine age attack on the precious right of privacy which has been sacred in Georgia since, at least, 1905. See Pavesich v. New England Life Ins. Co.,
Thus, I would agree with the interpretation given the statute by the Court of Appeals in State v. Mitchell,
I am authorized to state that Chief Justice Nichols