We engage in a four-pronged analysis to determine whether an individual has violated the
Act. State v. Christensen, 153 Wn.2d 186, 192, 102 P.3d 789 (2004). There must have been (1)
a private communication transmitted by a device, which was (2) intercepted by use of (3) a device
designed to record and/or transmit, (4) without the consent of all parties to the private
communication. Christensen, 153 Wn.2d at 192 (citing RCW 9.73.030).
"[W]hether a particular communication is private is generally a question of fact, but one
that may be decided as a question of law if the facts are undisputed." State v. Townsend, 147
Wn.2d 666, 673, 57 P.3d 255 (2002). Because the Act does not define "private," our Supreme
Court has adopted the dictionary definition: "belonging to one's self . . . 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." Townsend, 147
Wn.2d at 673 (internal quotation marks omitted) (quoting Kadoranian v. Bellingham Police
Dep't, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992) (quoting State v. Forrester, 21 Wn. App. 855,
4
41037-1-II / 41047-8-II
861, 587 P.2d 179 (1978) (quoting Webster's Third New International Dictionary (1969))).
A communication is private when (1) the communicating parties manifest a subjective
intention that it be private and (2) that expectation is reasonable. Christensen, 153 Wn.2d at 193.
Factors bearing on the reasonableness of the privacy expectation include the duration and subject
matter of the communication, the location of the communication and the potential presence of
third parties, and the role of the nonconsenting party and his or her relationship to the consenting
party. Townsend, 147 Wn.2d at 673-74. But the mere possibility that interception of the
communication is technologically feasible does not render public a communication that is
otherwise private. Townsend, 147 Wn.2d at 674.
Townsend is instructive with regard to the issues of what constitutes a "private
communication" and what constitutes consent. There, police set up a sting operation after
receiving tips that Donald Townsend was attempting to use his computer to arrange sexual
liaisons with young girls. Townsend, 147 Wn.2d at 670. A police detective established an e-mail
account with a screen name of "ambergirl87," a fictitious 13-year-old girl. Townsend, 147 Wn.2d
at 670. Townsend began corresponding with "Amber" via e-mail, asking to meet her and saying
that he wanted to "have fun" with her. Townsend, 147 Wn.2d at 670. In one e-mail, he asked
"Amber" to promise not to "tell anyone about us." Townsend, 147 Wn.2d at 670. The
detective's computer automatically stored these e-mail messages, which allowed the detective to
read the messages at his leisure and to print them for use as evidence at a later time. Townsend,
147 Wn.2d at 670.
