The Legality: A Washington Lawyer’s Opinion on this Issue.
Overview
In today’s world, everyone carries a cell phone so recording someone else’s private communication is quite common. What is not common, including among lawyers, is the knowledge and understanding of Washington’s law surrounding the recording of private communications and private conversations. Keep in mind, this law applies to recording the voice of another but has been argued in different legal forums to include other forms of private communication and conversations like texts and emails
Keep in mind that the laws differ in other states and according to federal law. The pamphlet on Recording and Videotaping Others from The Reporters Committee for Freedom of the Press is a good place to start if you’re interested in a countrywide overview of this interesting topic. However, a discussion of multi-state law or Federal law is beyond the scope of this article’s opinion. Given the volume of calls and emails our office receive, calls or emails asking questions will not be returned. If you have a serious case or situation, we recommend you use the option at the bottom of the page to buy and hour of time and we will be happy to listen to your situation and discuss your options.
Washington State
As lawyers we know Washington has rules that protect peoples’ privacy as it relates to recording private communication and private conversation. If you engage in private communication with another, or record what someone is saying | communicating privately, Washington law requires the consent of all parties to a private communication in order to record and punishes you if you publish the recording. Keep in mind that this broad privacy law does have some very important exceptions that people commonly overlook that are mentioned below.
Videotaping others without sound is treated a bit different as the above laws do not apply. Videotaping all hinges on expectations of privacy, in other words, the reason why so many places have surveillance video cameras that record images without permission is … they do not record private communication (as they do not record sound), they are not installed in private places like bathrooms or bedrooms (or shouldn’t be) and are not pointed in a way that invades the privacy or harasses others. If this is not true, you may have a criminal case for harassment or a civil case for harassment depending on the facts and damages.
We see this question arise across all practice areas: from civil cases and business disputes to administrative law cases criminal cases, family law cases and regularly in civil protection orders. This issue comes up because recording another can be great evidence if it is allowed into a court and it doesn’t get you sued.
So can I record or not? The Revised Code of Washington Section on The Right of Privacy
In Washington, there is a whole section of law and code that lawyers, judges and courts regularly rely on to deal with the when, where, why and how police officers, courts, media and individuals can record what someone else is saying. With that in mind, most business and private citizen questions can be answered by reading this particular code section of this chapter: Intercepting, recording, or divulging private communication—Consent required—Exceptions.
SHORT ANSWER.
There are times you can, but not many. In Washington, if someone is having a private communication or conversation with someone else, it cannot be recorded without the consent of all parties in the conversation … but there are important exceptions explained below.
Why not do it anyway? If you record someone and never disclose it then no one is wiser. However, if you do disclose it or it is later disclosed by accident, you can be prosecuted for a gross misdemeanor, face a civil suit and if you do not fit in within an exception, you will not get to use it as evidence in court either.
The lawyers | attorneys in our firm have been on the “giving end” and “receiving end” of this law in civil and criminal cases surrounding this topic; if there is a concern, proceed carefully and seriously consider what you are doing or pay for a consultation with a lawyer as to your specific facts. It is not fun being wrong.
LONGER EXPLANATION WORTH READING.
First, we are talking about private conversations because this is what Washington law protects. Lawyers, judges and cases have long argued about when and where someone should expect a communication or conversation to be private. When thinking about this, consider these two examples. If you are yelling at a crowd, you are not having a private conversation and you don’t have a right to expect privacy so the law allows others to record what you are saying. This is in contrast to you speaking to another in the privacy of your own bedroom where you expect the conversation to be private. Whether a situation will be deemed private depends on the circumstances and facts surrounding it and the ability of you and your lawyer to articulate them. Generally, cases are won and lost on facts and the arguments that can be created from them.
Second, some private conversations can be recorded anyway. In our opinion, the Washington legislature has not thrown all common sense to the wind. Among other things, if a private conversation “conveys” “threats of extortion, blackmail, bodily harm, or other unlawful requests or demands” or “which occur anonymously” or “repeatedly or at an extremely inconvenient hour”, the law allows you to record it and use it. Revised Code of Washington 9.73.020. That said, courts, criminal attorneys and civil lawyers have and will litigate what is “communication”, “conversation”, “convey” and what is “unlawful requests or demands” so again, do not get too creative unless you want to create new appellate law.
Third, you can always announce you are about to record a communication or conversation because: “consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted”. Bold added. Washington lawyers announce their intent to record all the time in in taped interviews.
Understanding the law surrounding recording communications and privacy can be complicated. Our office has a unique blend of courtroom experience, knowledge, skills and temperament. Our attorney | lawyers know cases are rarely simple and winning requires effort, commitment and control of the law and the facts. Whether acting in a role of counsel, advocate, negotiator or litigator, we have years of experience manipulating, working and fighting to resolve cases with our clients’ best interests in mind. Hit the “Book an Appointment” option to the right or call or email to pay to set an appointment.
