Background
Abdellah El Farissi sued Newberry College after a student athlete, Natassia Chamoun, recorded a conversation in which she participated. El Farissi alleged the recording violated federal and South Carolina wiretapping law. His theory treated the recording as an unlawful interception because, he asserted, the college’s head tennis coach had asked Chamoun to record the exchange. The circuit court dismissed the complaint with prejudice under Rule 12(b)(6) of the South Carolina Rules of Civil Procedure.
El Farissi appealed without counsel. He argued that the circuit court misunderstood the statutory requirements for a wiretap claim and that the proceedings did not reflect judicial fairness and impartiality. The Court of Appeals reviewed the pleaded facts and reasonable inferences in the light most favorable to him, as required when reviewing a dismissal for failure to state a claim. The opinion is unreported and has no precedential value under Rule 268(d)(2), SCACR, but it directly applies South Carolina’s one-party-consent rule to a workplace-related recording.
The Court’s Holding
The Court of Appeals affirmed. Even accepting El Farissi’s allegation that the coach requested the recording, Chamoun was herself a party to the conversation. That participation supplied the consent required by both statutes. Federal law, 18 U.S.C. § 2511(2)(d), generally permits a private person to intercept a communication when that person is a party to it. South Carolina Code section 17-30-30(C) likewise makes an interception lawful when the recorder is a party or one party has given prior consent. The court relied on State v. Whitner, which recognizes that consent from a participant defeats a statutory wiretap violation.
The alleged involvement of a college employee did not change the dispositive point: the person who made the recording took part in the conversation. Therefore, the complaint could not state an unlawful-interception claim on the alleged facts. The panel also rejected El Farissi’s impartiality argument as unpreserved. A litigant claiming judicial bias must raise the issue when the supporting facts become known and obtain a ruling below. Merely stating an intention to appeal did not specifically alert the circuit court to a bias objection. The court also noted that employment-termination and due-process arguments first advanced in a reply brief were waived.
Key Takeaways
- South Carolina is a one-party-consent jurisdiction for the statutory question addressed here: a participant generally may record the participant’s own conversation without violating section 17-30-30(C).
- A third person’s request that a participant make the recording does not, standing alone, eliminate the participant consent that makes the interception lawful under the statutes applied by the court.
- A complaint that affirmatively shows the recorder was a participant may be dismissed at the pleading stage because the pleaded facts negate an essential element of the wiretap claim.
- Claims of judicial bias require a timely, specific objection in the trial court, and arguments omitted from an appellant’s opening brief cannot ordinarily be revived in reply.
Why It Matters
South Carolina employers, schools, employees, and students increasingly encounter recordings made on phones during workplace or campus disputes. This decision provides a practical reminder that secrecy and illegality are different questions. A recording may be unexpected or contrary to an institution’s internal policy while still falling outside the civil and criminal prohibitions of the wiretap statutes because one participant consented.
Practitioners should identify who actually captured the communication before building a wiretap theory. If the recorder participated, counsel will need a theory beyond the absence of consent from the opposing speaker. Separate questions may remain under employment agreements, privacy policies, professional rules, or claims not decided in this appeal, but those questions should not be collapsed into the statutory interception analysis.
The unreported disposition should not be cited as precedent except as permitted by South Carolina appellate rules, but its statutory analysis tracks published authority and offers a useful early-case screening framework. It also reinforces the need to preserve secondary issues independently: a party who perceives judicial bias must make a specific record at the time rather than depend on a general statement that an appeal will follow.