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Are body bugs, recorded phone conversations considered wiretaps?

Atlanta, GA |

all research done only talks about wiretaps. I don’t really understand if a conversation recorded by a person with a recorder, a body bug transmitting sound being recorded, a phone call recorded by a 1 of the parties via recording device would all fall under a wiretap ? and if performed warrant-less would they be held legal and usable in a criminal court of law? Federal law requires 1 party consent yet 12 states require 2 or all party consent. Does this factor into the equation ?

Attorney Answers 2


there are scores of websites about wire taps and body wires (body bugs). Recommend you direct some of your research to those websites.
To answer directly:

Maybe--good issue for the defense attorney to bring up.

Depends on whether the charge is state of federal.

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Georgia, like most states, is a "one party" state for audio recording conversations. That means that any party to a conversation can audio record the conversation without the knowledge of any other party to the conversation. Just make sure all parties are in Georgia, because if even one of them is in an "all-party" state, it would likely be breaking the law of that state to record the conversation.

Just owning the telephone doesn't make someone a "party" to the conversation, so it is illegal to "tap" the telephone of your own house to record the conversations that other people in the house have with other people. But few homes are hard-wired for telephones anymore, so nowadays the recording questions deal with having your cell phone in your pocket recording a face-to-face conversation, or using some sort of application to record a conversation you are having on the telephone. Subject to the limitations I've mentioned above, these recordings are legal and almost always found to be admissible.

Don't get hung up with whether the party to the conversation is wearing a recorder or just wearing a transmitter (so the recording is happening elsewhere), or has just has his smartphone on the table with the recorder running. All that matters is that at least one party to the conversation know the conversation is being recorded somehow, somewhere.


So if A & B are talking alone in a room where C has placed a "bug", then C needs a warrant, since C isn't a party to the conversation and none of the parties know the conversation is recorded. But if it's A & B alone in the room, and B knows the room is bugged by C, then there's no violation. If A & B are talking on the telephone and C has tapped into the call without the knowledge of either A or B, then C needs a warrant.

Let's take C out of the picture and just imagine that A calls B and B records it. That's fine, so long as both A & B are both in "one-party states" when it happens.

Let's say A & B are talking alone and B is recording it with his iPhone face down on the table. B leaves the room and A calls D while the recorder is still running. Now B is violating the law because he is recording a conversation that he isn't a party to.

As you can see, the subject of recording conversations can get very complicated. This is why people should not try to handle these issues themselves. Hire an attorney.

To further confuse things, Georgia is NOT a one-party state for VIDEO recordings in private places (such as homes, hotel rooms, etc.). In a case called State v. Madison (2011), the Georgia Court of Appeals held that for video recordings Georgia is an "all-party" state, meaning that all parties video recorded must consent to the recording. So if you want to video record what is going on in a private place, all parties must consent. (Frankly, I think this is a problematic ruling, as it basically makes many common recordings illegal. Consider, for example, recording your child's Christmas play at church. The church is a private place, so unless you have the consent of every person in the room and on stage, you're breaking the law.)

So you should be fine to audio-record your conversations with other people in Georgia, but it is criminal eavesdropping to video-record them in a private place without their permission.

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