CRIMES ‑- ARREST ‑- POLICE ‑- RECORDING SOUNDS INCIDENT TO ISSUANCE OF CITATIONS
(1) Mere sounds, as distinguished from verbal conversation, occurring in connection with an event where a police officer is issuing a citation to a citizen on a public street do not constitute "private conversations" within the meaning of RCW 9.73.030(2).
(2) Verbal conversations occurring in connection with such an event may fall within the scope of a "private conversation" depending upon whether the factual circumstances are such as to indicate that at least one of the conversants reasonably intended that the conversation was to be for the ears of the participants only.
(3) The fact that the parties to a "private conversation" are aware that such conversation is being recorded does not constitute "consent" for the purposes of RCW 9.73.030(2) except to the limited extent provided for therein with respect to certain recordings by the news media.
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April 8, 1977
Honorable Richard Nelson
State Representative, 32nd District
405 House Office Building
Olympia, Washington 98504 Cite as: AGLO 1977 No. 16
By letter previously acknowledged you have requested the opinion of this office on certain questions pertaining to the recording of private conversations under RCW 9.73.030. We paraphrase your questions as follows:
(1) Do the sounds of an event wherein a police officer is issuing a citation to a citizen on a public street constitute a "private conversation" within the meaning of RCW 9.73.030(2)?
(2) Does the fact that the parties to a "private conversation" are aware that such conversation is being [[Orig. Op. Page 2]] recorded constitute "consent" for the purposes of RCW 9.73.030(2)?
We answer question (1) in the manner set forth in our analysis and question (2) in the qualified negative for the reasons set forth therein.
RCW 9.73.030 provides, in material part, as follows:
"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, record or divulge any:
". . .
"(2) 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.
". . ."
Your first question involves the meaning of the term "private conversation" as used in this statute. Unfortunately, that term is not anywhere defined in the law nor, we might add, is it likewise defined in § 605 of the federal communication act (47 U.S.C. § 605) which corresponds somewhat to our statute. There are, however, three recent decisions by Washington courts which are worthy of note. InState v. Grant, 9 Wn.App. 260, 511 P.2d 1013 (1973), the court of appeals held that a conversation between a criminal defendant and a police officer at a police station, secretly monitored without the knowledge of the defendant, constituted a "private conversation" within the meaning of RCW 9.73.030(2),supra. In addition, the court also attached the same characterization to another secretly recorded conversation, this time between the defendant and his attorney. In so ruling the court explained its basic reasoning as follows, at p. 265:
[[Orig. Op. Page 3]]
"RCW 9.73.030(2) seeks to prevent encroachment upon the privacy of the parties to a conversation. The words 'private conversation' contained in RCW 9.73.030(2) are not defined and have not heretofore been construed in any published opinion in this state. That language is not contained in Federal Communications Act § 605 (47 U.S.C. § 605), which corresponds somewhat to our statue. In construing the statutory words 'private conversation,' we seek to best fulfill the purpose of the statute. Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972); State v. Lee, 62 Wn.2d 228, 382 P.2d 491 (1963). In considering that purpose, we note the phrase 'private conversation' is all-embracing and is broad enough to include a confidential or privileged conversation, and one protected against disclosure under the Fourth Amendment. To construe the words 'private conversation' narrowly and grudgingly would unnecessarily fail to give full effect to the legislative purpose to protect the freedom of people to hold conversations intended only for the ears of the participants. Both the conversation held by the defendant with his attorney and the conversation held by the defendant with Detective Hume are each 'private conversations' entitled to the protection of RCW 9.73.030 and 9.73.050."
Similarly, inState v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977), the state supreme court characterized as "private" an emergency telephone call to a police station. In so concluding the court reasoned as follows:
". . . While no definition of the phrase is contained in the privacy statutes, reference to other parts of the statutory scheme demonstrate the legislature's intent in using that term. Words in a statute take their meaning from the context in which they are used. State ex rel. Kadow v. Board of Adjustment, 77 Wn.2d 587, 591, 464 P.2d 418 (1970).
"In RCW 9.73.090(1) the legislature excluded certain 'incoming telephone calls to police [[Orig. Op. Page 4]] and fire stations' from the operation of RCW 9.73.030.1/ There would be no purpose in enacting this exclusion unless the legislature believed such communications were otherwise within the scope of the section. It is presumed that the legislature does not engage in unnecessary or meaningless acts. Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973). Consequently, to interpret the privacy statute so that no portion of it is superfluous or insignificant, see Snow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 288, 494 P.2d 216 (1972), we must conclude that such telephone calls would fall within RCW 9.73.030(1) but for their exclusion by RCW 9.73.090."
Again, however, what was involved was obviously a verbal conversation and not mere sound or noises. With respect to the latter, on the other hand, we turn to a third recent case,State v. Smith, 85 Wn.2d 840, 540 P.2d 424 (1975). At issue there was the applicability of RCW 9.73.030(2), supra, to a secret tape recording of various noises which had occurred during the course of commission of a homicide. The court ruled that the statute was not applicable to such a recording, saying, at p. 846:
". . . We are convinced that the events here involved do not comprise 'private conversation' within the meaning of the statute. Gunfire, running, shouting, and Kyreacos' screams do not constitute 'conversation' within that term's ordinary connotation of oral exchange, discourse, or discussion. We do not attempt a definitive construction of the [[Orig. Op. Page 5]] term 'private conversation' which would be applicable in all cases. We confine our holding to the bizarre facts of this case, and find that the tape does not fall within the statutory prohibition of RCW 9.73.030, and thus its admission is not prohibited by RCW 9.73.050."
Thus, our overall answer to your first question is as follows:
(1) Mere sounds, as distinguished from verbal conversation, occurring in connection with an event wherein a police officer is issuing a citation to a citizen on a public street do not constitute "private conversation" within the meaning of RCW 9.73.030(2), supra.
(2) Verbal conversation occurring in connection with such an event may, conversely, fall within the scope of the term depending upon whether the factual circumstances are such as to indicate that at least one of the conversants reasonably intended that the conversation was to be for the ears of the participants only ‑ and thus "private" rather than public. Unlike incoming telephone calls to a police station it is, however, simply not possible to generalize on the issue of whether or not such a street conversation is private, within the meaning of the law, because the rationale of State v. Wanrow, supra, only fits where the activity is covered by a statutory exemption which would be rendered meaningless if the conversation was not thus deemed to be private for purposes of RCW 9.73.030(2), supra.
Next you have asked:
Does the fact that the parties to a "private conversation" are aware that such conversation is being recorded constitute "consent" for the purposes of RCW 9.73.030(2)?
After the portion which we have earlier quoted, RCW 9.73.030(2) then goes on to provide, in a second paragraph, as follows:
"An employee of any regularly published newspaper, magazine, wire service, radio station or television station acting in the course of bona fide news gathering [[Orig. Op. Page 6]] duties on a full time or contractual or part time basis, shall be deemed to have consent to record and divulge communications 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, radio or television station from divulging the communication."
This represents the only instance in which the legislature has provided for any sort of "implied" consent by conversants merely from continued participation in the conversation in the face of an awareness or recognition of the presence of a recording or transmitting device. And, obviously, to broadly construe the term "consent" to include other instances of implied consent would render meaningless this specific legislative provision in that regard. We therefore must conclude that the "consent" which otherwise is required for the purposes of RCW 9.73.030(2),supra, is a consent or waiver expressly made or given by the private conversants involved.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
GARRY E. WEGNER
Assistant Attorney General
*** FOOTNOTES ***
1/RCW 9.73.090(1) reads as follows:
"The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police and fire personnel in the following instances:
"(1) Recording incoming telephone calls to police and fire stations for the purpose and onlyfor the purpose of verifying the accuracy of reception of emergency calls." (Emphasis supplied.)