Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:
Washington has a statute addressing “Intercepting, recording, or divulging private communication”, that deems it unlawful to intercept or record any communication or conversation without the consent of all parties to that communication. The law also sets specific exceptions for journalists, building owners and threatening or inconvenient phone calls. The voyeurism law addresses in broad terms unlawful surveillance of other persons, in places where they would have reasonable expectation of privacy, but sets all the provisions in the context of “arousing or gratifying the sexual desire of any person”.
Impact of law
In Washington, it is unlawful to record a “private conversation” without first obtaining the consent of all parties engaged in the conversation. Washington is thus an “all parties consent state”. However, the law sets specific exceptions and circumstances. For instance, communications of an emergency nature or which convey threats or occur at extremely inconvenient hours, may be recorded with the consent of one party to the conversation. Further, journalists are allowed to record conversations with implicit consent if the recording or transmitting device is readily apparent or obvious. Also, building owners can also intercept communications which occur within their building in the case of unlawful entry or ongoing criminal acts, in other words, for security purposes.
The voyeurism law has a broad clause, addressing the act of knowingly viewing, photographing, or filming another person without that person’s knowledge and consent while the person is in a place where he or she would have a reasonable expectation of privacy. However, the law specifically states that the unlawful act is done for the purpose of arousing or gratifying the sexual desire of any person, thus narrowing the applicability of the law.
References to Physical TSCM
The Washington law uses open terminology such as “any device electronic or otherwise designed to record and/or transmit communications, regardless of how such device is powered or actuated”. We assert that it is the intention of the law to cover all available interception technology.
References to Cyber TSCM
The law separately addresses private conversations and private communication, described as “transmitted by telephone, telegraph, radio, or other device between two or more individuals”. If we consider that this description includes the digital realm, then we can also assert that cyber means of interception are subject of the law, as “any device electronic or otherwise designed to record and/or transmit said communication regardless of how such device is powered or actuated”.
Any person who violates RCW 9.73.030 is guilty of a gross misdemeanor, while the crime of voyeurism is a class C felony.
Any person whose communications or conversations have been subject to unlawful interception shall have a civil cause of action against the person who has violated the law, and be entitled to recover actual damages, liquidated damages computed at the rate of $100 per day for each day of violation, up to $1,000, attorney’s fee and other costs of litigation.
The law specifically mentions liability in the case of employing a detective agency or any other agent to knowingly violate the provisions of the law.
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.
RCW 9.73.11 – Intercepting, recording, or disclosing private communications — Not unlawful for building owner — Conditions.
It shall not be unlawful for the owner or person entitled to use and possession of a building, as defined in RCW 9A.04.110(5), or the agent of such person, to intercept, record, or disclose communications or conversations which occur within such building if the persons engaged in such communication or conversation are engaged in a criminal act at the time of such communication or conversation by virtue of unlawful entry or remaining unlawfully in such building.
RCW 9.73.060 – Violating right of privacy — Civil action — Liability for damages.
Any person who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter shall be subject to legal action for damages, to be brought by any other person claiming that a violation of this statute has injured his or her business, his or her person, or his or her reputation. A person so injured shall be entitled to actual damages, including mental pain and suffering endured by him or her on account of violation of the provisions of this chapter, or liquidated damages computed at the rate of one hundred dollars a day for each day of violation, not to exceed one thousand dollars, and a reasonable attorney’s fee and other costs of litigation.
RCW 9.73.080 – Penalties.
(1) Except as otherwise provided in this chapter, any person who violates RCW 9.73.030 is guilty of a gross misdemeanor.
RCW 9A.44.115 – Voyeurism.
(c) “Place where he or she would have a reasonable expectation of privacy” means:
(i) A place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another; or
(ii) A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance;
(d) “Surveillance” means secret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person;
(e) “Views” means the intentional looking upon of another person for more than a brief period of time, in other than a casual or cursory manner, with the unaided eye or with a device designed or intended to improve visual acuity.
(2) A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films:
(a) Another person without that person’s knowledge and consent while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy; or
(b) The intimate areas of another person without that person’s knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place.
(3) Voyeurism is a class C felony.