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Thread: Recorder legality here in WA?

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    Recorder legality here in WA?

    So I'm listening to Dave Ross on KIRO-FM this AM, and the topic of the proposed Seattle "cop-cams" comes up. (For the record, I'm in favor of the idea - Every cop, every minute on duty, with an "Any blackouts equals up on charges unless you can absolutely prove it was equipment malfunction" policy just might make the boys in blue think twice before abusing the badge) Sounds to me like Dave is "pro camera" overall, but has a couple of questions, one of which has to do with the legality of recording people here in WA. Apparently, one of the obstacles to "camera-izing" the cops is that (according to banter between Dave and his "wingman" - I forget who he's got subbing this week) there's a law on the books here in Washington that would make it illegal for the cops to run the cameras because we're a "two party consent" state when it comes to voice recording. Various on-air staff spoke variations of the same theme on and off throughout the day, including one of them mentioning that this was why there were so few "radio stings" of "evildoers that should be making the news" here in the state - people can't be recorded without giving consent.

    I don't even know where to begin looking, so I have no idea if this is true, false, or otherwise, but it immediately struck me that if this actually is the case, then those toting recorders for LEO encounters are (perhaps unknowingly) committing a crime in using them.

    Anybody got enough "I *AM* a lawyer" credentials to be able to comment on this in a meaningful way?

    (To make sure it's clear in case this gets cross-posted around, I'm asking/talking specifically about the state of WASHINGTON.)

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    Regular Member OrangeIsTrouble's Avatar
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    Quote Originally Posted by CheerfulHoplite View Post
    Anybody got enough "I *AM* a lawyer" credentials to be able to comment on this in a meaningful way?
    Negative.



    Get your reading glasses out and a drink and starting clicking and scanning!



    http://forum.opencarry.org/forums/se...hid=397588&pp=

    http://forum.opencarry.org/forums/sh...recording+laws

    http://forum.opencarry.org/forums/sh...recording+laws

    http://forum.opencarry.org/forums/sh...ghlight=record

    http://forum.opencarry.org/forums/sh...recording+laws...

    http://forum.opencarry.org/forums/sh...recording+laws


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    Quote Originally Posted by BigDave View Post
    Looks (as a non-lawyer) to me like that's all about phones, wiretapping, etc, situations, with no mention of (or apparent applicability to) "I'm standing here talking to you" situations. However, one of Green's links led me to the Flora v State ruling, so apparently, it's established case law that recording a cop encounter is kosher.

    Maybe I'll have to give Dave a call on Monday and tip him off to that one... Can't be having him spewing misinformation like it's fact, after all...

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    Not sure where I saw it, but all you need to do is inform the 2nd party they are being recorded, and that counts as consent in WA.

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    Quote Originally Posted by CheerfulHoplite View Post
    Looks (as a non-lawyer) to me like that's all about phones, wiretapping, etc, situations, with no mention of (or apparent applicability to) "I'm standing here talking to you" situations. However, one of Green's links led me to the Flora v State ruling, so apparently, it's established case law that recording a cop encounter is kosher.

    Maybe I'll have to give Dave a call on Monday and tip him off to that one... Can't be having him spewing misinformation like it's fact, after all...
    Uhm, before you call him, you might want to take another look at his link, specifically 9.73.030 section 1b, and 3. 1b starts off "Private conversation,...". That would seem to address your "I'm standing here talking to you" situation, and section 3 talks about how to obtain that permission during the private conversation.

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    Regular Member ARADCOM's Avatar
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    Lightbulb http://www.impsec.org/~jhardin/gunstuff/legal/State_v_Flora.html

    State_v_Flora is the case most quoted as allowing the recording of police officers.


    "The State urges us to adopt the view that public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby enjoy a privacy interest which they may assert under the statute. We reject that view as wholly without merit.

    [1] Determining whether a given matter is private requires a fact-specific inquiry. See Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992) (citing State v. Slemmer, 48 Wn. App. 48, 52, 738 P.2d 281 (1987) and State v. Forrester, 21 Wn. App. 855, 861, 587 P.2d 179 (1978), review denied, 92 Wn.2d 1006 (1979)). Where the pertinent facts underlying the cause of action are undisputed, as here, the determination is one of law. Kadoranian, 119 Wn.2d at 190 (citing Central Wash. Bank v. Mendelson-Zeller, Inc., 113 Wn.2d 346, 353, 779 P.2d 697 (1989)).

    [2, 3] Although the term "private" is not explicitly defined in the statute, Washington courts have on several occasions construed the term to mean:

    secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something . . . a secret message: a private communication . . . secretly; not open or in public.

    Slemmer, 48 Wn. App. at 52 (quoting Forrester, 21 Wn. App. at 861 (quoting Webster's Third New International Dictionary (1969))); accord, State v. Bonilla, 23 Wn. App. 869, 872, 598 P.2d 783 (1979). That definition is consistent with the Legislature's purpose in enacting the privacy act, to protect individuals from the dissemination of illegally obtained information. State v. Fjermestad, 114 Wn.2d 828, 834, 791 P.2d 897 (1990) (citing State v. Wanrow, 88 Wn.2d 221, 233, 559 P.2d 548 (1977)). Our Supreme Court has explained that the statute

    expresses a legislative intent to safeguard the private conversations of citizens from dissemination in any way. The statute reflects a desire to protect individuals from the disclosure of any secret illegally uncovered by law enforcement.

    (Italics ours.) State v. Fjermestad, 114 Wn.2d at 836.

    [4, 5] The State advances no persuasive basis for its contention that the conversation between the officers and Flora should be considered private. We note in particular that in none of the cases it cites as controlling were public officers asserting a privacy interest in statements uttered in the course of performing their official and public duties. Rather, the question in those cases was whether the personal privacy of an individual was improperly invaded. See State v. Cunningham, 23 Wn. App. 826, 843-44, 598 P.2d 756 (1979), rev'd, 93 Wn.2d 823, 613 P.2d 1139 (1980); State v. Grant, 9 Wn. App. 260, 265, 511 P.2d 1013, review denied, 83 Wn.2d 1003 (1973), cert. denied, 419 U.S. 849 (1974); State v. Caliguri, 99 Wn.2d 501, 506, 664 P.2d 466 (1983); State v. Wanrow, 88 Wn.2d at 228-32. The State now urges us to distort the rationale of those cases to support the proposition that police officers possess a personal privacy interest in statements they make as public officers effectuating an arrest.

    Our research into other legal sources, in which a literature on the notion of privacy may be said to exist, has produced no cases which support the State's position. In Fourth Amendment analysis, and tort theory, for example, the question whether a matter is private occasions a threshold inquiry into whether the matter at issue ought properly be entitled to protection at all:

    It is clear, however, that there must be something in the nature of prying or intrusion, . . . It is clear also that the thing into which there is intrusion or prying must be, and be entitled to be, private.

    Jeffers v. Seattle, 23 Wn. App. 301, 315, 597 P.2d 899 (1979) (quoting W. Prosser, Torts 808 (4th ed. 1971)); see also Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).

    The conversation at issue fails this threshold inquiry; the arrest was not entitled to be private. Moreover, the police officers in this case could not reasonably have considered their words private. 1

    1 We note, incidentally, that the police officers testified at trial that they did not consider the conversation private.

    Because the exchange was not private, its recording could not violate RCW 9.73.030 which applies to private conversations only. We decline the State's invitation to transform the privacy act into a sword available for use against individuals by public officers acting in their official capacity. The trial court erred in denying Flora's motion to dismiss. Flora's conviction is reversed and the case dismissed.

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    Regular Member Schlepnier's Avatar
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    The first circuit federal court just ruled in Glik VS boston on aug 26 that kills any attempt to prevent you from recording police. all the wiretapping/evesdroping prohibition nonsense being used by police is out the window. they are acting in a matter of public interest as public servants exercising a pubic duty in public areas and their qualified immunity is overturned by the protections guaranteed in the 1st ammendmant to the free exchange of ideas and a free press(not being limited to just members of the the official press corps). as such thanks to McDonald VS chicago, under the 14th ammendmant, states and local municipalities must adhere to the federal courts ruling.
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    There was also an article in the Seattle Times either Thursday or Friday which stated that Washington was one of twelve states that was a 2 party consent state. I think the confusion is over public versus private. As Schlepnier has already stated, no consent from another person is necessary if you are recording in public; the restriction applies to a private interaction only.
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    Quote Originally Posted by Schlepnier View Post
    The first circuit federal court just ruled in Glik VS boston on aug 26 that kills any attempt to prevent you from recording police. all the wiretapping/evesdroping prohibition nonsense being used by police is out the window. they are acting in a matter of public interest as public servants exercising a pubic duty in public areas and their qualified immunity is overturned by the protections guaranteed in the 1st ammendmant to the free exchange of ideas and a free press(not being limited to just members of the the official press corps). as such thanks to McDonald VS chicago, under the 14th ammendmant, states and local municipalities must adhere to the federal courts ruling.
    The 1st circuit court opinion does not carry much weight in the 9th circuit where we are. It is a good indicator but that is all, circuit courts often rule completely opposite of each other just look at Obamacare 2 circuit courts have ruled it unconstitutional while about 4 circuit courts have ruled it constitutional. The disagrements between the circut courts is how a lot of cases end up in front of SCOTUS.

    Dont get me wrong Glik was a win for all of us, just be careful trying to apply it in the 9th circut.

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    Founder's Club Member Jim675's Avatar
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    Perhaps I'm confused, but to me it appears the OP is addressing LEO recording citizens, not the other way around.

    We can record LEO because they're public officials performing their public duty in public, publicly.

    Whereas when I am standing in my yard talking over the fence with my neighbor then Officer Friendly is violating the law if he walks up the sidewalk recording us as he waits to break into the conversation so he can ask about the (legal) gun on my hip.

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    Quote Originally Posted by Jim675 View Post
    Perhaps I'm confused, but to me it appears the OP is addressing LEO recording citizens, not the other way around.

    We can record LEO because they're public officials performing their public duty in public, publicly.

    Whereas when I am standing in my yard talking over the fence with my neighbor then Officer Friendly is violating the law if he walks up the sidewalk recording us as he waits to break into the conversation so he can ask about the (legal) gun on my hip.
    Jim The moment the officer shows up and can hear you and your neighbor, and you and your neighbor know he is there then the conversation is no longer private, in your example he did not sneak up on you that may change things. I dont believe you talking over the fence to your neighbor would always be considered a private conversation.

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    Assuming my back is not turned to the street. My point is that the OP was not asking about recoding police, who by their duties, are recordable in a public place without notification.

    And I believe Washington state does not merely require notification but actual permission.

    ETA: Sorry, rather lazy of me to not cite.

    http://apps.leg.wa.gov/rcw/default.aspx?cite=9.73.030

    Simple notification does work, as long as the notification is also recorded.
    Last edited by Jim675; 09-11-2011 at 01:21 AM.

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    Quote Originally Posted by gaarry View Post
    Not sure where I saw it, but all you need to do is inform the 2nd party they are being recorded, and that counts as consent in WA.
    Just to make your point clear: If you inform the other person they are being recorded and they don't object and they continue the conversation then their consent will be implied. If they object you cannot continue to record, so long as it is a private conversation. Lots of discussion out there about what is or isn't "private". Time, place, location will all factor in.
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    Quote Originally Posted by Lammo View Post
    Just to make your point clear: If you inform the other person they are being recorded and they don't object and they continue the conversation then their consent will be implied. If they object you cannot continue to record, so long as it is a private conversation. Lots of discussion out there about what is or isn't "private". Time, place, location will all factor in.
    If they object to recording, you don't stop, and you have a legal right to be where you are. Could it be argued that it would be their own fault if they keep talking? I would think that if you don't want to be recorded then you have the right to remain silent. Especially if I were to record someone on my own property with no one else around and they objected. Just wondering if there might be a case out there with these sort of circumstances.
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    Quote Originally Posted by tombrewster421 View Post
    If they object to recording, you don't stop, and you have a legal right to be where you are. Could it be argued that it would be their own fault if they keep talking? I would think that if you don't want to be recorded then you have the right to remain silent. Especially if I were to record someone on my own property with no one else around and they objected. Just wondering if there might be a case out there with these sort of circumstances.
    That's how I read it too. You don't have to stop, they have the choice to walk away or hang up the phone or not talk to you. I'll have to re read it now though, since Lammo's him being a lawyer and all, he might be pointing something out I am missing.
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    Quote Originally Posted by tombrewster421 View Post
    If they object to recording, you don't stop, and you have a legal right to be where you are. Could it be argued that it would be their own fault if they keep talking? I would think that if you don't want to be recorded then you have the right to remain silent. Especially if I were to record someone on my own property with no one else around and they objected. Just wondering if there might be a case out there with these sort of circumstances.
    It could also be argued that once the party objects yet continues to talk has assumed that you are following the law. The law says you can't record without his consent. It doesn't say he has to leave or stop talking once you advise him your recording. The law places the onus on YOU, the person recording, not the other party.

    Two different environments. In public where no expectation of privacy, record away. Seems like being on your own property with nobody else around but the other party would certainly qualify as private. If in a private environment record at your peril. Of course you could clearly post your property that "All conversations on this property will be recorded by the Owner" and that might cover the requirement for notice. Might also keep lots of your friends away too.
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    Darn lawyers

    Always mucking things up. I have only ever been on the law enforcement side of RCW 9.73 (assisting in obtaining one party consent authorizations in a bona fide investigations) so I cannot claim to have all the answers. However, I always try to think through all of the consequences, intended and not.

    I can imagine a scenario where someone objects to being recorded but their later actions show that they have waived the objection. Even so, I would never advise one of you to continue to record after an objection has been expressed. The reason is that violation of RCW 9.73 1) is a crime, albeit a gross misdemeanor, 2) could result in civil liability and, 3) any recording you obtain in violation of RCW 9.73 will probably not be admissible in any legal proceeding.

    There is a bunch of case law in this area (Westlaw returns 197 cases on a search for "RCW 9.73") but a quick scan doesn't reveal anything on point (legalese for a case that matches your argument). What is consistently expressed is that it is unlawful to record a private conversation without the consent of all parties. State v. Townsend, 147 Wn.2d 666, states "This statute is considered one of the most restrictive in the nation." Given that, do you want to make yourself a test case?

    The result in any case is going to depend on the facts and we all know how many times the facts can get sideways. And since this lawyer sees this issue one way I can guarantee you that there is another lawyer (or six) out there who will see it in just the opposite way. That's what makes the law so much fun. :-)

    RCW 9.73.030
    1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:

    (a) Private communication [SNIP] without first obtaining the consent of all the participants in the communication;

    (b) Private conversation [SNIP] without first obtaining the consent of all the persons engaged in the conversation.

    RCW 9.73.050
    Any information obtained in violation of RCW 9.73.030 or pursuant to any order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080, or in a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.

    RCW 9.73.060
    Any person who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter shall be subject to legal action for damages, to be brought by any other person claiming that a violation of this statute has injured his business, his person, or his reputation. A person so injured shall be entitled to actual damages, including mental pain and suffering endured by him on account of violation of the provisions of this chapter, or liquidated damages computed at the rate of one hundred dollars a day for each day of violation, not to exceed one thousand dollars, and a reasonable attorney's fee and other costs of litigation.

    RCW 9.73.080
    (1) Except as otherwise provided in this chapter, any person who violates RCW 9.73.030 is guilty of a gross misdemeanor.
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    Quote Originally Posted by Lammo View Post
    There is a bunch of case law in this area (Westlaw returns 197 cases on a search for "RCW 9.73") but a quick scan doesn't reveal anything on point (legalese for a case that matches your argument).
    Relevant authority has already been noted, above. State v. Flora, 845 P.2d 1355, 68 Wn.App. 802 (1992) - a published decision from Division I. There may be scenarios where some conversations with law enforcement are "private" under Ch. 9.73 RCW, but this decision is a pretty clear statement that most are not. In the typical scenario where an OC'er is contacted by an LEO, that contact is happening in a public place, most commonly with other people around, and neither the officer nor a prosecutor has any straight-face-test argument supporting the notion that the conversation that ensues is "private." Indeed, the conversation will more than likely be summarized in the officer's report, which is a public record and subject to public disclosure to anyone who asks for it. After Flora, I would even suggest that prosecution in the case of an OC'er recording LEO contact in a public place would be malicious and would support liability and possibly a bar complaint.

    Quote Originally Posted by Schlepnier View Post
    The first circuit federal court just ruled in Glik VS boston on aug 26 that kills any attempt to prevent you from recording police.
    Careful. We (in Washington State) are in the Ninth Circuit, not the First. Rulings of the First or any other circuit have absolutely no binding effect upon the courts (or prosecutors) within the Ninth Circuit. This isn't to suggest that I think the Ninth would rule differently - in fact I believe it has already ruled the same way the First Circuit did. My caution is simply that case law from other jurisdictions really doesn't mean a whole lot here, other than perhaps suggesting trends.

    Of course, while I'm a lawyer, I'm not yours, and nothing I say here is legal advice.
    Last edited by Lightning Jeff; 09-13-2011 at 05:08 PM. Reason: clarity

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    Quote Originally Posted by Jim675 View Post
    Assuming my back is not turned to the street. My point is that the OP was not asking about recoding police, who by their duties, are recordable in a public place without notification.

    And I believe Washington state does not merely require notification but actual permission.

    ETA: Sorry, rather lazy of me to not cite.

    http://apps.leg.wa.gov/rcw/default.aspx?cite=9.73.030

    Simple notification does work, as long as the notification is also recorded.
    If Washington state requires permission, not simply notification, then every time you interact with a corporation on the phone and hear "This call may be recorded", then a crime has been committed.
    Last edited by Difdi; 09-13-2011 at 07:20 PM.

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    Quote Originally Posted by Lightning Jeff View Post
    [SNIP] After Flora, I would even suggest that prosecution in the case of an OC'er recording LEO contact in a public place would be malicious and would support liability and possibly a bar complaint.

    [SNIP]
    Agreed. The vast majority of LEO encounters are not going to qualify as private communications or private conversations. My post above was responding to what I read as an issue being raised about non-LEO encounters. For example, an OC'er is accosted by some hoplophobe and starts the recorder to guard against future he said/she said claims if the encounter turns ugly. Depending on where this happens it might be deemed private and it might therefore be a violation of RCW 9.73. Like I siad, Darn lawyers.
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    Quote Originally Posted by Lammo View Post
    Always mucking things up. I have only ever been on the law enforcement side of RCW 9.73 (assisting in obtaining one party consent authorizations in a bona fide investigations) so I cannot claim to have all the answers. However, I always try to think through all of the consequences, intended and not.

    I can imagine a scenario where someone objects to being recorded but their later actions show that they have waived the objection. Even so, I would never advise one of you to continue to record after an objection has been expressed. The reason is that violation of RCW 9.73 1) is a crime, albeit a gross misdemeanor, 2) could result in civil liability and, 3) any recording you obtain in violation of RCW 9.73 will probably not be admissible in any legal proceeding.

    There is a bunch of case law in this area (Westlaw returns 197 cases on a search for "RCW 9.73") but a quick scan doesn't reveal anything on point (legalese for a case that matches your argument). What is consistently expressed is that it is unlawful to record a private conversation without the consent of all parties. State v. Townsend, 147 Wn.2d 666, states "This statute is considered one of the most restrictive in the nation." Given that, do you want to make yourself a test case?

    The result in any case is going to depend on the facts and we all know how many times the facts can get sideways. And since this lawyer sees this issue one way I can guarantee you that there is another lawyer (or six) out there who will see it in just the opposite way. That's what makes the law so much fun. :-)

    RCW 9.73.030
    1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:

    (a) Private communication [SNIP] without first obtaining the consent of all the participants in the communication;

    (b) Private conversation [SNIP] without first obtaining the consent of all the persons engaged in the conversation.

    RCW 9.73.050
    Any information obtained in violation of RCW 9.73.030 or pursuant to any order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080, or in a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.

    RCW 9.73.060
    Any person who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter shall be subject to legal action for damages, to be brought by any other person claiming that a violation of this statute has injured his business, his person, or his reputation. A person so injured shall be entitled to actual damages, including mental pain and suffering endured by him on account of violation of the provisions of this chapter, or liquidated damages computed at the rate of one hundred dollars a day for each day of violation, not to exceed one thousand dollars, and a reasonable attorney's fee and other costs of litigation.

    RCW 9.73.080
    (1) Except as otherwise provided in this chapter, any person who violates RCW 9.73.030 is guilty of a gross misdemeanor.
    Lammo,

    Doesn't section 3 of 9.73.030 basically take care of obtaining consent, if you simply announce to everyone involved that they are being recorded, as long as you get your announcement recorded as well? I don't read anywhere that they have to agree to it, they just have to know about it.

    (3) Where consent by all parties is needed pursuant to this chapter, 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: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.
    Last edited by dadada; 09-13-2011 at 08:52 PM.

  23. #23
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by dadada View Post
    Lammo,

    Doesn't section 3 of 9.73.030 basically take care of obtaining consent, if you simply announce to everyone involved that they are being recorded, as long as you get your announcement recorded as well? I don't read anywhere that they have to agree to it, they just have to know about it.

    (3) Where consent by all parties is needed pursuant to this chapter, 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: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.
    That's how I interpreted it too. I don't think Lammo agrees with it is a crime is just pointing out how it may be interpreted by some.

    Thanks for the input Lammo, it is good to hear from those in your profession and you are absolutely right about how things can be "interpreted" by Civil and Private attorneys.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  24. #24
    Regular Member Lammo's Avatar
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    Quote Originally Posted by dadada View Post
    Lammo,

    Doesn't section 3 of 9.73.030 basically take care of obtaining consent, if you simply announce to everyone involved that they are being recorded, as long as you get your announcement recorded as well? I don't read anywhere that they have to agree to it, they just have to know about it.

    (3) Where consent by all parties is needed pursuant to this chapter, 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: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded.
    Probably but the issue that occurred to me is what happens if the other person says "No". I don't think you can hide behind an implied consent provision in the face of an actual refusal. It seems to me analogous to interrogation by LEOs after a suspect says "I want a lawyer." They have to stop the interrogation until a lawyer is present. I think if the conversation is truly private and the other person says no that you cannot record the conversation without running afoul of RCW 9.73. Of course, if they say "no" and your recorder is out in the open and the red light is blinking and they continue with the conversation then you probably have a valid waiver of the objection, just like the suspect who initiates further discussion with LEOs after asking for a lawyer.
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  25. #25
    Campaign Veteran gogodawgs's Avatar
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    Quote Originally Posted by Lammo View Post
    Probably but the issue that occurred to me is what happens if the other person says "No". I don't think you can hide behind an implied consent provision in the face of an actual refusal. It seems to me analogous to interrogation by LEOs after a suspect says "I want a lawyer." They have to stop the interrogation until a lawyer is present. I think if the conversation is truly private and the other person says no that you cannot record the conversation without running afoul of RCW 9.73. Of course, if they say "no" and your recorder is out in the open and the red light is blinking and they continue with the conversation then you probably have a valid waiver of the objection, just like the suspect who initiates further discussion with LEOs after asking for a lawyer.
    Suppose you reapeat a few minutes into the conversation; "you remember I am recording this" ......
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