• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

Recorder legality here in WA?

Lammo

Regular Member
Joined
Oct 15, 2009
Messages
580
Location
Spokane, Washington, USA
[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.
 

dadada

Regular Member
Joined
Jun 27, 2010
Messages
112
Location
Edge of the woods
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:

sudden valley gunner

Regular Member
Joined
Dec 13, 2008
Messages
16,674
Location
Whatcom County
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.
 

Lammo

Regular Member
Joined
Oct 15, 2009
Messages
580
Location
Spokane, Washington, USA
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.
 

gogodawgs

Campaign Veteran
Joined
Oct 25, 2009
Messages
5,669
Location
Federal Way, Washington, USA
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" ......
 

sudden valley gunner

Regular Member
Joined
Dec 13, 2008
Messages
16,674
Location
Whatcom County
Suppose you reapeat a few minutes into the conversation; "you remember I am recording this" ......

I think if they said no and you make the statement to the effect than you need to hang up or walk away, which I have done in the past should work. Lammo has got me reconsidering and thinking about this a little deeper though.

I try to look at things from intent and before technology gave us the ability to record. All we could do was "spy" or "eavesdrop". In the past if we announced to the party we are listening to their conversation or we are watching them (not including private property) to testify in court or for the press what were their options? They could go somewhere private to continue their conversation or stop talking.

With recording when you make the announcement to me they have the same option.(unless it is private property) They can leave, hangup, or shut up, it doesn't seem to me they can't force you to stop recording in a public place even if its a private conversation. As long as you announced you are recording.

I can't find the case now but I think it was Clark v Seattle? Where the cop recorded a private conversation in a drug dealers car with windows up? Court ruled since it was a "business" there was no expectation of privacy. So it seems to me that "expectation" of privacy is the relevant part, and that someone can't expect something to be private if you announce you are going to record or even repeat anything they say to you.
 

gogodawgs

Campaign Veteran
Joined
Oct 25, 2009
Messages
5,669
Location
Federal Way, Washington, USA
I think if they said no and you make the statement to the effect than you need to hang up or walk away, which I have done in the past should work. Lammo has got me reconsidering and thinking about this a little deeper though.

I try to look at things from intent and before technology gave us the ability to record. All we could do was "spy" or "eavesdrop". In the past if we announced to the party we are listening to their conversation or we are watching them (not including private property) to testify in court or for the press what were their options? They could go somewhere private to continue their conversation or stop talking.

With recording when you make the announcement to me they have the same option.(unless it is private property) They can leave, hangup, or shut up, it doesn't seem to me they can't force you to stop recording in a public place even if its a private conversation. As long as you announced you are recording.

I can't find the case now but I think it was Clark v Seattle? Where the cop recorded a private conversation in a drug dealers car with windows up? Court ruled since it was a "business" there was no expectation of privacy. So it seems to me that "expectation" of privacy is the relevant part, and that someone can't expect something to be private if you announce you are going to record or even repeat anything they say to you.

And what if I am in a place I am legally entitled to be, say standing on the sidewalk talking with the person....

or sitting in a private establishment that is open to the public (i.e. Starbucks)....
 

amlevin

Regular Member
Joined
Feb 16, 2007
Messages
5,937
Location
North of Seattle, Washington, USA
And what if I am in a place I am legally entitled to be, say standing on the sidewalk talking with the person....

or sitting in a private establishment that is open to the public (i.e. Starbucks)....

As I see it, it all revolves around the issue of whether there was an expectation of privacy. There are a ton of scenarios one could create for "What if's" but he simple question would be "did the party have a reasonable expectation the conversation was private?".

From there it would be up to the Lawyers and Judges (Real ones, not just "Internet Lawyers without degrees or bar cards").
 

gogodawgs

Campaign Veteran
Joined
Oct 25, 2009
Messages
5,669
Location
Federal Way, Washington, USA
Suppose you reapeat a few minutes into the conversation; "you remember I am recording this" ......

And what if I am in a place I am legally entitled to be, say standing on the sidewalk talking with the person....

or sitting in a private establishment that is open to the public (i.e. Starbucks)....

As I see it, it all revolves around the issue of whether there was an expectation of privacy. There are a ton of scenarios one could create for "What if's" but he simple question would be "did the party have a reasonable expectation the conversation was private?".

From there it would be up to the Lawyers and Judges (Real ones, not just "Internet Lawyers without degrees or bar cards").

Nope.... I am trying to discern when the other party has been notified and I am in a place I am legally entitled to be and they continue to talk and I remind them they are being recorded....
 

jt59

Regular Member
Joined
Jul 19, 2010
Messages
1,005
Location
Central South Sound
It seems that somewhere in here, we were talking about the expectation of privacy by a police officer who is "investigating" a MWAG call (you) that was reported through the 911 system or he just happend to be in the wrong Starbucks at the wrong time and wondered if you were a Felon.

Your inside an open business, where a public servant approaches you....and you determine that you are being detained (on the basis of the officer "investigating a that a crime is being committed").. after asking all those questions (am I free to go) that we ask.

It seems to me that you(or your attn'y) can make the case for any officer interaction when your being detained, that he is investigating a potential "crime" and that this exempts his reasonable right to privacy if it exists at all.

(2) Notwithstanding subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues, may be recorded with the consent of one party to the conversation.

let alone that we're hopefully smart enough to not voluntarily "take" the conversation private by agreeing to "step outside" with the officer and make it so....and with the exception of Lammo's comments, it seems the worst that can happen is a civil suit, the recording is inadmissable and civil fines not to exceed $1,000.

http://apps.leg.wa.gov/rcw/default.aspx?cite=9.73.060

....but, IOANAL

I will record any police interviews....and let the chips fall
 

jsanchez

Regular Member
Joined
May 9, 2010
Messages
499
Location
seattle
So with my situration at Greenlake. Is it ok if when the cops pulled up in there squad cars, if I would have taken out my cell phone and turned on the video camera and clipped it on my shirt and recorded the whole contact? Would that be legal? The audio isn't great on the cell phone because of my holder, the mic is facing my chest. I remember the guy who video taped that officer at Lake Union who said all those threats and racial slurs and then kicked the suspect in the face. Was that recording legal?
 
Last edited:

gogodawgs

Campaign Veteran
Joined
Oct 25, 2009
Messages
5,669
Location
Federal Way, Washington, USA
So with my situration at Greenlake. Is it ok if when the cops pulled up in there squad cars, if I would have taken out my cell phone and turned on the video camera and clipped it on my shirt and recorded the whole contact? Would that be legal? The audio isn't great on the cell phone because of my holder, the mic is facing my chest. I remember the guy who video taped that officer at Lake Union who said all those threats and racial slurs and then kicked the suspect in the face. Was that recording legal?

In my opinion and the case law that we have on this issue, YES. You were in a public place and the officer's were performing their public duty and I can see no way that it was a private conversation. And yes on the other recording.

"A party is determined to have consented to recording if he is aware that the recording is taking place."
Washington v. Modica, 149 P.3d 446 (Wash. Ct. App. 2006).

"Statements made by police officers when effecting an arrest in their official capacity do not constitute "private conversations" within the meaning of RCW 9.73.030, which makes criminal the recording of private conversations without all parties' consent."
STATE v. FLORA, 68 Wn. App. 802, 845 P.2d 1355 (Wash. Ct. App 1992)
 
Last edited:

sudden valley gunner

Regular Member
Joined
Dec 13, 2008
Messages
16,674
Location
Whatcom County
And what if I am in a place I am legally entitled to be, say standing on the sidewalk talking with the person....

or sitting in a private establishment that is open to the public (i.e. Starbucks)....

I think we are on the same page and in the same line of thought. Once notice is given they can shut up or leave. The person recording also has the right to be there and to gather news, freedom of the press, and the courts have decided this doesn't just apply to those who peddle news.

In my opinion and the case law that we have on this issue, YES. You were in a public place and the officer's were performing their public duty and I can see no way that it was a private conversation. And yes on the other recording.

"A party is determined to have consented to recording if he is aware that the recording is taking place."
Washington v. Modica, 149 P.3d 446 (Wash. Ct. App. 2006).


"Statements made by police officers when effecting an arrest in their official capacity do not constitute "private conversations" within the meaning of RCW 9.73.030, which makes criminal the recording of private conversations without all parties' consent."
STATE v. FLORA, 68 Wn. App. 802, 845 P.2d 1355 (Wash. Ct. App 1992)

There you go that was the case I was looking for I knew I read it just couldn't find it again. Thank you.

Another case is Johnson vs. Sequim, the judges were pretty specific that public employees (police) do not have a right to privacy while engaged in public duties. They interpret Flora the same way most of us do.
 
Top