Law / United States / 
Washington
Privacy Act, Recording and Interception of Private Communications
RCW 9.73.030, .060, .070, .080
In force.
An interception and recording consent rule binding public and private bodies.
- Obligation class
- Consent, Prohibition
What it requires
- Obtain the consent of every participant to a private telephone, radio, or other transmitted communication, and every person engaged in a private conversation, before recording or intercepting it by any device; consent is established when one party announces to all the others, in a reasonably effective manner, that the recording or transmission is about to happen, provided the announcement is itself recorded.
- Do not read or answer a private message sent to someone else, on the device it was sent to, before that person has seen it, without the consent this chapter requires; the Washington Supreme Court has held that doing so is an interception even though the message has already arrived.
These lines are LexLint's reading of the law's text. Also read by: State v. Roden, 179 Wn.2d 893 (2014) (recorded ).
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
- FINOS AIGF
- AIR-PREV-005System Acceptance Testing
Our reading of where this law's duties sit in each framework. It never says that running a control meets the law. How we read a framework against the law
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Except as otherwise provided in the chapter, a person who violates RCW 9.73.030 is guilty of a gross misdemeanor; where no statute prescribes the punishment for a gross misdemeanor, RCW 9.92.020 sets it at up to 364 days in the county jail, a fine of up to $5,000, or both.
Penalty structure
RCW 9.73.080(1) makes a violation of RCW 9.73.030 a gross misdemeanor; where no statute prescribes the punishment, RCW 9.92.020 allows a fine fixed by the court of not more than $5,000, up to 364 days in the county jail, or both. The chapter sets no civil penalty; the injured person's own recovery is under RCW 9.73.060.
- Rule
- Fixed only
- As of
- Currency
- USD
- Fixed cap
- 5,000
Statutory damages
A person injured by a violation may elect liquidated damages computed at $100 for each day of violation, capped at $1,000 in the aggregate, in place of actual damages including mental pain and suffering, plus a reasonable attorney's fee and litigation costs.
- As of
- Currency
- USD
Who enforces it
Enforcement body
Private civil action under RCW 9.73.060; criminal prosecution for a gross misdemeanor under RCW 9.73.080
Settledness
State v. Roden held that reading and responding to a text message before its intended recipient had seen it is an interception within the ordinary meaning of a term the statute does not define, even though the message had already reached the recipient's phone.
- As of
- Case link
- https://www.courts.wa.gov/opinions/pdf/876690.pdf
- Case citation
- State v. Roden, 179 Wn.2d 893 (2014)
- Open questions
- Does an automated system that accesses the content of a message before its intended human recipient has read it 'intercept' the communication the same way a person who reads and responds to it does under State v. Roden, 179 Wn.2d 893 (2014)?
What this law does
Chapter 9.73 RCW, Washington's Privacy Act, makes it unlawful for any individual, partnership, corporation, association, or the state and its political subdivisions to intercept or record a private communication or a private conversation without first obtaining the consent of all the participants or persons engaged in it.
Consent is established when one party announces to all the others, in a reasonably effective manner, that the communication is about to be recorded or transmitted, provided the announcement is itself recorded. A call or conversation of an emergency nature, one conveying threats of extortion, blackmail or bodily harm, one occurring anonymously, repeatedly or at an extremely inconvenient hour, or one with a hostage holder or barricaded person may be recorded with the consent of one party.
A common carrier acting under its filed tariffs, and an officer, agent or employee of such a carrier who performs an otherwise prohibited act in the construction, maintenance, repair and operations of the carrier's communications services, facilities or equipment or incident to the use of those services, facilities or equipment, are excepted.
An employee of a news organization gathering news is deemed to have consent only if consent is expressly given or the recording or transmitting device is readily apparent or obvious to the speakers. A person injured by a violation may bring a civil action for actual damages, including mental pain and suffering, or liquidated damages of $100 a day up to $1,000, plus a reasonable attorney's fee and litigation costs, and a violation of the consent requirement is a gross misdemeanor.
The Washington Supreme Court has held that reading and responding to a text message intended for someone else, before the intended recipient has seen it, is an interception under this chapter within the ordinary meaning of a term the statute leaves undefined. The sections this entry groups came into force on different days.
How courts have read itPremium data
Our analysis of this law draws on 1 court ruling.
What each ruling held, what it means for an app, and whether it still stands are premium data, in the Plus, Pro and Enterprise plans.
When LexLint raises it
When your app profile says your app records calls, records text chat, processes voice recordings or deploys a chatbot.
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