Recording Communications and Conversations

Each state has its own rules about privacy. With some limited but important exceptions, Washington law requires all parties to consent to the recording of a private communication, and there are penalties for breaking this law. People's privacy is protected in connection with recording communications and conversations. If you are concerned about how to prove something that your spouse or someone else said when trying to obtain or defend against a temporary or permanent protection order, you should contact the Seattle civil protection order lawyers at Blair & Kim.

Generally, consent is required if you want to record a private communication. When there is a private communication or conversation, you are not allowed to record it without all parties' consent. What is a private conversation? Generally, people have a right to expect privacy in their own homes. When somebody is yelling outside in the middle of the street, there is no reasonable expectation of privacy. The circumstances and facts will dictate whether a situation involved an expectation of privacy.

It is a violation of Washington privacy laws to tape someone without their knowledge. Under RCW 9.73.030, it is illegal for an individual or organization to intercept or record any private communication that is transmitted by a device such as a telephone between two or more people between points within or without Washington through any device that is electronic or designed to record and transmit the communication without first getting the consent of all of the parties to the communication.

Under RCW 9.73.030, it is deemed consent if one person tells all of the others involved in the communication in a reasonably effective way that the communication or conversation will be recorded. You must actually record yourself making the announcement to the other people that you are recording a communication or conversation and allow the recording to proceed. If the other person keeps talking, their speech may be used as evidence. In many cases, however, that will stop someone who is making criminal threats or using harassing speech, such that the recording will not be useful evidence for the purposes of obtaining a protective order.

There are four significant but limited exceptions to the general rule that you cannot tape without consent. Wire communications or conversations that involve an emergency, such as reporting a crime, medical emergency, fire, or disaster, can be recorded. Another exception is for communications that convey threats of bodily harm, blackmail, extortion, or illegal requests or demands. For example, if an acquaintance threatens to beat you up and rape you, and you need to obtain a sexual assault protection order, you could use the recording of the threat. Another exception is for communications that occur anonymously or repeatedly or at an extremely inconvenient hour. For example, if your ex-husband keeps calling you at 2:00 a.m. and making threats toward you and your kids, this could be recorded and used to obtain a protection order. A final exception is for communications by a barricaded person or a hostage holder under RCW 70.85.100, as long as one party to the conversation consents. There is another exception for employees of news organizations engaged in gathering information for news, but that is not applicable to recording communications as evidence for civil protection orders.

You can also videotape other people without sound if there is no expectation of privacy. If you are in a public place and being stalked with crude gestures, you are permitted to videotape the other person without sound. On the other hand, you are not allowed to videotape with sound or videotape in private places like bedrooms and bathrooms. If you do, you could be charged with criminal harassment, or the other person may try to get a civil restraining order against you, which can open you up to criminal penalties for violating the order.

If you are concerned about recording communications and conversations with regard to protection orders, you should retain a skillful attorney who understands how civil protection orders are obtained and may know other ways to acquire the evidence that you need in getting or defeating a civil protection order. Our firm has both a family law attorney and a criminal defense attorney, who work together to develop strong strategies for clients' cases. We represent people in Seattle, Redmond, Kirkland, Bellevue, and elsewhere in King County. Call us at (206) 622-6562 or contact us via our online form.