The Privacy Act of RCW 9.73 is frequently mis-understood to apply to prohibit recording all conversations. It doesn’t. It only prohibits recording private-secret conversations.
From the very beginning the courts began expressing that it was only conversations that were intended to be private that were covered. Screams, noises, gunshots etc. are not covered under the act.
In one of the earliest cases, State v. Smith, 85 Wn.2d 840 (1975), a police officer murdered an informant. The informant was wearing a recorder that recorded his own execution. The court pointed out that screams, cries, gunshots etc. were not conversations and that screams and shouts were not private and not conversations covered by the act.
Since the Smithcase, the courts have consistently focused on the fact that the conversation must be a private conversation that is covered, not just any conversation held in front of people. The courts have defined “private” as a secret conversation, that was intended by each participant in the conversation to keep it secret.
This consistent interpretation is clear from the opinions from the Court of Appeals:
This court and the Court of Appeals have repeatedlyheld that conversations with police officers are not private. See, e.g., Clark, 129 Wash.2d at 226, 916 P.2d 384 (no reasonable expectation of privacy in a conversation with an undercover police officer when it “takes place at a meeting where one who attended could reveal what transpired to others.”); State v. Bonilla, 23 Wash.App. 869, 873, 598 P.2d 783 (1979) ( “It would strain reason for Bonilla to claim he expected his conversations with the police dispatcher to remain purely between the two of them.”); State v. Flora, 68 Wash.App. 802, 808, 845 P.2d 1355 (1992) (“Because the exchange [between a police officer and an arrestee during an arrest] was not private, its recording [by the arrestee] could not violate RCW 9.73.030 which applies to private conversations only.”); see also Alford v. Haner, 333 F.3d 972, 978 (9th Cir.2003), rev’d on other grounds sub.nom. Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (noting that State v. Flora established that a traffic stop was not a private encounter for purposes of the privacy act); Johnson v. Hawe, 388 F.3d 676, 682–83 (9th Cir.2004) (holding that an individual who videotaped a police officer during an arrest did not violate RCW 9.73.030 because the officer had no reasonable expectation of privacy in his communications with others over his police radio).
Lewis v. State, Dep’t of Licensing, 157 Wn.2d 446, 460, 139 P.3d 1078, 1084, (2006).
Even in the context of interviews of police officers by defense attorneys, the court has determined that officers may be recorded without their consent.
RCW 9.73.030(1)(b) provides that it is “unlawful for any individual … or the state of Washington, its agencies, and political subdivisions” to record any “[p]rivate conversation… without first obtaining the consent of all the persons engaged in the conversation.” (Emphasis added.) “Whether a conversation is private is a question of fact but may be decided as a question of law where … the facts are not meaningfully in dispute.” State v. Modica, 164 Wash.2d 83, 87, 186 P.3d 1062 (2008) (citing State v. Townsend,147 Wash.2d 666, 673, 57 P.3d 255 (2002)). The parties do not dispute the facts; thus, we review this issue de novo.
Chapter 9.73 RCW does not define the term “private.” But our Supreme Court has previously found that “private” means “ ‘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.’ ” State v. Clark, 129 Wash.2d 211, 225, 916 P.2d 384 (1996) (alterations in original) (quoting Kadoranian v. Bellingham Police Dep’t, 119 Wash.2d 178, 190, 829 P.2d 1061 (1992)). When determining whether a communication is “private,” courts consider several factors, including but not limited to, (1) the subject matter of the communication, (2) the location of the participants, (3) the potential presence of third parties, (4) the role of the interloper, (5) whether the parties “manifest a subjective intention that it be private,” and (6) whether any subjective intention of privacy is reasonable. State v. Christensen, 153 Wash.2d 186, 193, 102 P.3d 789 (2004) (citing Townsend, 147 Wash.2d at 673, 57 P.3d 255; Clark, 129 Wash.2d at 225–27, 916 P.2d 384). Here, the facts show that there was no reasonable subjective expectation of privacy in the officers’ interviews.
State v. Mankin, 158 Wn. App. 111, 117–18, 241 P.3d 421, 424 (2010).
As a result, it is now clear that officers may be recorded in defense interviews, without their knowledge or consent. To that end, it is recommended that officers ask the attorneys prior to any interview if it is being recorded as attorneys would have a bar ethical rule duty not to lie to them.