August 1, 2012

Summary of statute(s): All parties to either an in-person conversation or electronic communication generally must consent to its recording — a requirement that is satisfied by one party’s reasonably effective announcement, which also must be recorded, to all other parties that the conversation is about to be recorded. Wash. Rev. Code Ann. § 9.73.030 (West 2012).

In-person conversations: It is unlawful to record a “private conversation” without first obtaining the consent of all parties engaged in the conversation. Id. Courts consider three main factors in deciding whether a conversation is considered private and thus protected under the wiretap law: 1) the duration and subject matter of the conversation; 2) the location of the conversation and presence or potential presence of a third party; and 3) the role of the non-consenting party and his or her relationship to the consenting party. Lewis v. Washington, 139 P.3d 1078 (Wash. 2006). And the state Supreme Court has held that the presence of another person during a conversation generally means the matter is not secret or confidential such that it would qualify as private. Washington v. Clark, 916 P.2d 384 (Wash. 1996). Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: It is unlawful to record a “private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals” without first obtaining the consent of all participants in the communication. And because the statute does not differentiate between oral and written private communications transmitted electronically, the consent of all parties likewise is required to disclose the contents of text messages sent between wireless devices. Wash. Rev. Code Ann. § 9.73.030.

Under the statute, a journalist employed by “any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or part-time basis” is deemed to have the requisite consent to record and divulge the contents of in-person conversations or electronic communications “if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers.” Anyone speaking to such a journalist who has consented cannot withdraw that consent after the communication is made. Id. A Washington appellate court held that a party has consented to a recording if he or she is aware that the recording is taking place. Washington v. Modica, 149 P.3d 446 (Wash. Ct. App. 2006). And another state appellate court ruled that consent to the recording of a real-time conversation using online discussion software is implicit because participants know the conversations will be recorded on the other party’s computer. Washington v. Townsend, 20 P.3d 1027 (Wash. Ct. App. 2001).

Hidden cameras: It is a felony to photograph or record, “for the purpose of arousing or gratifying the sexual desire of any person,” another person in a place where he or she has a reasonable expectation of privacy, and to “up-skirt” or “down-blouse,” or secretly photograph or record a person, regardless of whether the person has a reasonable expectation of privacy, under or through his or her clothing. Wash. Rev. Code Ann. § 9A.44.115. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a gross misdemeanor. Wash. Rev. Code Ann. § 9.73.080.

Civil suits: Anyone whose in-person conversation or electronic communication has been recorded in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of violation or $1,000, and can recover attorney’s fees and court costs as well. Wash. Rev. Code Ann. § 9.73.060.