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Think before you record!
This is my site Written by CPorterEsq on November 30, 2015 – 12:54 pm

cell phoneCell phones make it really easy these days to record conversations that might have legal significance – interactions with police, telephone calls between opposing parties in a court case, etc. Anyone who is going through a complicated legal process may also be tempted to record conversations with their attorney or a judge’s ruling in court.

Before you hit the record button, however, it is important to familiarize yourself with your state’s recording laws. Washington has a particularly restrictive law, and breaking it may result in criminal and civil charges being brought against you!

Summary of statute: Under RCW 9.73.030(1), all parties to a private in-person conversation, telephone call, or other electronic communication generally must consent to its recording. This is called “two-party consent.” Whether a conversation is private depends on a number of factors such as the subjective intention of the parties, the reasonableness of their expectation that the conversation was private, the location of the conversation, the role of the non-consenting party and his or her relationship to the recording party, and whether third parties were present.[1] Two party consent is not required for public communications.

Getting consent to record: In Washington, you can satisfy the consent requirement by “announc[ing] 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,” so long as this announcement is also recorded.[2]

A person will also be deemed to have consented to having his or her communication recorded when he or she conveys a message knowing that it will be recorded. Examples of this include leaving a voice mail message or sending an email. [3]

Penalties: Illegally recording an in-person conversation or electronic communication is a gross misdemeanor.[4] In addition, anyone whose in-person conversation or electronic communication has been recorded in violation of the law can bring a civil suit to recover the damages, attorney’s fees, and court costs.[5]

Takeaways: Always get the consent of all parties before recording any conversation that common sense tells you is private.

 

[1] Lewis v. State, 157 Wn.2d 446, 139 P.3d 1078 (2006); State v. Townsend, 147 Wn.2d 702, 57 P.3d 255 (2002).

[2] RCW 9.73.030(3).

[3] See In re Marriage of Farr, 87 Wn. App. 177, 940 P.2d 679 (1997) (speaker consented when leaving a message on a telephone answering machine, the only function of which is to record messages); Townsend, 57 P.3d at 260 (person sending email consented to its recording because he “had to understand that computers are, among other things, a message recording device and that his e-mail messages would be recorded on the computer of the person to whom the message was sent”).

[4] RCW 9.73.080.

[5] RCW 9.73.060.

 

Image courtesy of ImagePros, used with permission.

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