As lawyers say: it depends. The short answer is no. Washington's laws require "two-party consent" meaning you can’t audio-record someone else without their permission. Even if it’s your video with them in it.
This article is intended for general informational purposes only and should not be considered legal advice. For legal advice pertaining to your specific matter, please consult one of our attorneys.
Authors: Dubs Herschlip and Austin Hatcher
Circumstances can dictate whether there is an expectation of privacy for the parties involved in the conversation. A conversation in public, especially with third parties present or able to hear the conversation, will not be protected as the people having a conversation should have no reasonable expectation of privacy.
It is a crime to intercept or record a private telephone call, in-person conversation, or electronic communication unless all parties to the communication consent. Refer to the drop down to read the Revised Code of Washington (the “RCW”) pertaining to recording and consent. Again, the key word is ‘private;’ generally this has been defined in case law as “not open or in public.”
RCW 9.73.030- Intercepting, recording, or divulging private communication—Consent required—Exceptions
(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 transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;
(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.
(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.
(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.
(4) An employee of 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, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers. Withdrawal of the consent after the communication has been made shall not prohibit any such employee of a newspaper, magazine, wire service, or radio or television station from divulging the communication or conversation.
(5) This section does not apply to the recording of custodial interrogations pursuant to RCW 10.122.040.
But, if you do talk with someone regarding recording them and get their consent, write it down and send it to them in an email. This allows you to keep a record of the event and that you received consent from the other party or parties to be recorded.
If you want a record of a conversation, rather than recording it, put it in writing, such as an email to the other party. We recommend you follow up to all in-person conversations with an email confirming your recollection of the conversation and that your recollection and recount via email is what you will be relying on moving forward.
Offer the other party the opportunity to correct your email record of the conversation by saying that if they don’t agree with your record, to please correct your understanding within 48 hours or you will move forward based upon your understanding as set forth in your email.
Plus, people have statutory privacy rights codified in Washington’s Constitution, which states that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. art. I § 7. Surveillance of others is not a privilege. Even police surveillance of themselves with body cameras has been constitutionally constrained. You can refuse consent to recording. If you do, the other party should remove your image.
In addition, common law rights to the use of someone’s image for profit may further limit your ability to record someone else legally. Expect that if you take an unwelcome video of a celebrity that you will get a cease-and-desist letter, if not from them, then from their attorney.
If you have any remaining questions pertaining to communication, consent, and recording of yourself or others, please reach out to one of our attorneys who would be happy to discuss your concerns.