concurring specially in part.
While I do not agree with all that is said in Division 2 (b) of the Court’s opinion (and thus cannot join it), I do agree in full with the following statement: “[Tjhere is nothing in the former version of OCGA § 16-11-62 (2) to show that the reasonable expectation to be safe from ‘hostile intrusion or surveillance’ under the statute is coextensive with one’s ‘reasonable expectation of privacy’ under the Fourth Amendment to the United States Constitution.” Maj. op. at 629.
It is also true that we and the Court of Appeals have looked to the Fourth Amendment as a guide in interpreting the statute, but we have done so in remarkably different circumstances than the ones before us today In both Burgeson v. State, 267 Ga. 102 (475 SE2d580) (1996) and Quintrell v. State, 231 Ga. App. 268 (499 SE2d 117) (1998), government agents were alleged to have illegally surveilled criminal defendants. In that context, it is no surprise at all to look toward the F ourth Amendment, which serves asa constitutional boundary to the behavior of the government. But here, in analyzing the actions taken by private parties, the Fourth Amendment provides something less than a useful guide; in fact, applying Fourth Amendment rules may even serve to confuse rather than clarify the meaning of the statute.17
To begin, much of what the majority applies as seminal Fourth Amendment law had not yet been announced by the United States Supreme Court at the time that OCGA § 16-11-62 was drafted. See Ga. L. 1967, pp. 844, 852. The “private place” definition at issue here was passed by the General Assembly in April 1967, while the United States Supreme Court did not issue its Katz decision until December of that same year. See Katz v. United States, 389 U. S. 347 (88 SCt 507, 19 LE2d 576) (1967). And the Smith v. Maryland decision that the majority quotes and applies was not issued until more than a decade *636later. See 442 U. S. 735 (99 SCt 2577, 61 LE2d 220) (1979) (“In determining whether a particular form of government-initiated, electronic surveillance is a ‘search’within the meaning of the Fourth Amendment, our lodestar is Katz v. United States, 389 U. S. 347 (1967).” (emphasis supplied)). Relying on these cases leads to the odd conclusion that perhaps if Ms. Brindle had been a stranger rather than a guest, her surveillance would have been lawful. Maj. op. at 631. Or, perhaps, that Mr. Rogers would have had a lessened expectation of privacy for the same activities in Ms. Brindle’s home rather than in his own. Id.
Decided November 2, 2017 Reconsideration denied November 14, 2017. Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Lyndsey H. Rudder, F. McDonald Wakeford, Assistant District Attorneys, for appellant.The statute cannot bear the weight that the Fourth Amendment puts on it when addressing the behavior of private parties and not of the government. In fact, the one Georgia case cited to support the potential distinction between privacy from strangers and privacy from family members or other close parties, is one that specifically concluded that “there is almost a total lack of authority” addressing parental wiretapping, which was the closest Fourth Amendment analog that the court could identify Kelley v. State, 233 Ga. App. 244, 248-249 (503 SE2d 881) (1998). The court instead looked to an earlier Georgia case interpreting OCGA § 16-11-62 without any reference at all to the Fourth Amendment. Id. (citing Ransom v. Ransom, 253 Ga. 656 (324 SE2d 437) (1985)).
Nor am I as certain as my colleague that when the General Assembly redefined “private place” to constitute “a place where there is a reasonable expectation of privacy,” the legislature was “squarely invoking the modern Fourth Amendment test.” Concurring op. at 634 (Nahmias, J., concurring in part and concurring specially in part). Perhaps Fourth Amendment tests are more relevant under the new version of the statute — or perhaps not. After all, the amended statute still addresses a privacy interest quite different, than the one that we all share against government search and seizure. But we need not make that determination until the proper case is before us, and I would decline to do so here.
I am authorized to state that Justice Hunstein and Justice Blackwell join this concurrence.
Brian Steel; Finestone, Morris & White, Bruce H. Morris; Jimmy D. Berry; Reid Thompson, for appellees.Apart from the Fourth Amendment issues outlined more fully in this special concurrence, and in contrast to the majority opinion, I also note that the statutory text provides no reason that the recording of consensual and nonconsensual conduct would be treated differently under the statute. See Maj. op. at 631 n.14. Additionally, one would expect that the indictment would include an allegation that the sexual activities at issue were consensual if that were an important factor in the interpretation of the statute—particularly where, as here, it was commonly understood that the activities were alleged by Ms. Brin die to be nonconsen-sual.