ATLANTA (WRBL) – Just before the Jan. 5 runoff election for two U.S. Senate seats in Georgia that could sway the balance of power in Washington, the state’s importance on the national stage drew additional attention following a call between President Trump and Georgia Secretary of State Brad Raffensperger.
Reports from national outlets and the Atlanta Journal-Constitution say that the Secretary of State’s office had recorded the call, during which the president pressured Raffensberger to “find” the nearly 12,000 votes needed to change the results of November’s election in Georgia. Trump’s former attorney general and election officials across the country have said there is no basis for the president’s allegations of widespread voter fraud. Nearly every one of the president’s legal challenges have been tossed out.
The Washington Post and others released snippets of audio from the recorded call, which were met with reactions ranging from disbelief, to defense of the call, to attacks on Raffensperger over the recording in the first place.
While the reactions have fallen across a wide spectrum, many follow predictable party lines.
Georgia’s GOP Chairman David Schafer’s response to the call being “secretly” recorded and released was to say it was mind boggling. In the same tweet, he then alleged that he has filed open records requests which have not been filled or even responded to.
On the other side of the aisle, several Democratic members of U.S. Congress have called for FBI Director Christopher Wray to open a voting interference investigation into the call from the President.
According to Georgia law, Raffensperger can legally record a phone call, making criticism of the move more about party loyalty or etiquette rather than about a possible crime.
Georgia, 34 other states, and the District of Columbia, are what’s known as one-party consent states when it comes to audio recordings. Federally, the United States also allows one-party consent for phone and audio recordings.
According to law firm Matthiesen, Wicker, & Lhrer, S.C., as of October 2019, The one-party consent states in the U.S. are:
- The District of Columbia
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
This means that as long as one of the parties, or people, on a call are aware of being recorded, and consent, the full call is legal to record. Generally, to record a conversation, verbal or written notice is only required in some cases, usually when it involves telephone companies, not calls between individuals.
Michigan is an odd one out in terms of consent when it comes to recording, intercepting or disclosing conversations in person, electronic, or on computers without party consent. A court ruling by the Michigan Court of Appeals interpreted the language of the law to only apply to third-party recording and interception, leading to some confusion as to its consent status.
Wisconsin allows for recording when a person involved in a conversation is recording it or allows a third party to record it, but the recording is not allowed for use in court in civil cases unless all parties are aware of the recording.
Only nine states in the US have two-party consent laws when it comes to audio recordings, including phone calls. The states that require all parties to consent to the recording are:
- New Hampshire
Still, other states have specific circumstances in their laws about recording communications that make them fall into a third, or in Vermont’s case, fourth category for consent in audio and phone recordings.
Separately, Illinois is a two- or all-party consent state when it comes to surreptitious recordings, but a one-party state for private electronic communications.
The states that fall into the “mixed” consent category are:
- Colorado (Someone not present for a communication must have permission of one of the parties to record the electronic or oral conversation)
- Connecticut (While it’s a one-party consent state, it’s against the law to record phone calls or communications made by someone who is not the sender or intended recipient, without the consent of at least one involved party. In civil cases, violating the consent to record is a civil issue, not criminal)
- Nevada (It’s illegal to record private communications without one party allowing it, and all parties must consent to disclose the content of the recordings)
- Oregon (It’s not illegal to record a conversation if an individual who is in the conversation records it or gives someone else permission, but it’s illegal to record the conversation without the consent of anyone taking part in the communication)
Vermont is not categorized as a one- or all-party consent state because there is no state law that specifically defines rights to record or disclose recorded conversations.