Washington

Reporter's Recording Guide

Last updated June 2020

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Summary

All parties to an in-person, telephone or electronic conversation generally must consent to its recording. Wash. Rev. Code Ann. § 9.73.030. Consent is considered obtained when one party makes a reasonably effective recorded announcement to all other parties in the conversation that it is about to be recorded. Id. Journalists are generally deemed to have consent to record and disclose in-person, telephone or electronic conversations “if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers.” Id.

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In-person conversations

It is unlawful to record a “private conversation” without first obtaining the consent of all parties engaged in the conversation, which can be obtained by making a reasonably effective recorded announcement to all parties in the conversation that it is about to be recorded. Wash. Rev. Code Ann. § 9.73.030.

Among the factors considered by Washington courts in determining whether a conversation is considered private are the location of the conversation and the presence or potential presence of a third party. Lewis v. State, Dep't of Licensing, 139 P.3d 1078, 1083 (Wash. 2006). The Washington Supreme Court has held that conversations conducted in public or in the presence of a third party are generally not considered private. State v. Clark, 916 P.2d 384, 393 (Wash. 1996). Thus, consent is arguably not required to record conversations in public where there is no reasonable expectation of privacy.

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Telephone and electronic communications

It is unlawful to record a “private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals” without first obtaining the consent of all participants in the conversation. Wash. Rev. Code Ann. § 9.73.030. Because the law does not differentiate between oral and written communications, the consent of all parties is likewise required to disclose the contents of text messages sent between wireless devices. Id.

Consent may be obtained by making a reasonably effective recorded announcement to all parties in the conversation that it is about to be recorded. Id.

In addition, a journalist employed by “any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full-time or contractual or part-time basis” is deemed to have consent to record and disclose the contents of telephone or electronic conversations “if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers.” Id. Moreover, the Washington Supreme Court has held that a party is deemed to have consented to a recording if he or she is aware that the recording is taking place. State v. Townsend, 57 P.3d 255, 260 (Wash. 2002). A party’s subsequent withdrawal of consent does not prohibit the journalist from disclosing the conversation. Wash. Rev. Code Ann. § 9.73.030.

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Hidden cameras

Under Washington’s voyeurism law, it is a felony to photograph or record a person, “for the purpose of arousing or gratifying the sexual desire of any person,” without his or her knowledge or consent either (i) in a place where he or she has a reasonable expectation of privacy or (ii) in a public or private place where the photograph or recording is of the intimate areas of a person and that person has a reasonable expectation of privacy. Wash. Rev. Code Ann. § 9A.44.115(2)(a).

In addition, it is a gross misdemeanor to photograph or record, with the intent to distribute or disseminate the photograph or recording, the intimate areas of a person without that person's knowledge or consent where the person has a reasonable expectation of privacy, whether in a public or private place. § 9A.44.115(3)(a).

This law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (e.g., filming conversations on public streets or in a hotel lobby).

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Criminal penalties

Illegally recording an in-person, telephone or electronic conversation is a gross misdemeanor. Wash. Rev. Code Ann. § 9.73.080.

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Civil suits

Anyone whose in-person, telephone or electronic conversation has been recorded in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of the violation, or $1,000, and can also recover attorney’s fees and court costs. Wash. Rev. Code Ann. § 9.73.060.

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Disclosing recordings

Disclosing the contents of an in-person, telephone or electronic conversation obtained through illegal recording is a gross misdemeanor. Wash. Rev. Code Ann. § 9.73.080.

If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.

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Right to record government officials in public

A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.

The U.S. Court of Appeals for the Ninth Circuit, which includes Washington, has held that there is a First Amendment right to record matters of public interest in public places, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).

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