Sound Politics: Is This Right?

December 12, 2007

Is This Right?

Commenter "whit", responding to this Volokh post on privacy laws, wrote:

as a cop, i would LOVE if i could audiotape people (w/o their knowledge) and think they should have the same right to do so with me.

however, in WA state, it's a CRIME (misdemeanor) for me to do so.

Is "whit" correct about Washington laws?

Can't say that I have paid much attention to this issue, but I do remember reading a story from New Jersey that seems relevant. When the state police there started taping all traffic stops, the successful complaints against the police went way down.

(For the curious, I agree with the argument that Volokh makes in the post.)

Posted by Jim Miller at December 12, 2007 01:05 PM | Email This

Comments

1. Washington State Supreme Court rules that there is no inherant right to privacy in public areas.

Granted that was a case of upskirt photography but I'd think the concept is still the same.

http://seattlepi.nwsource.com/local/87863_voyeur20.shtml

Posted by: MP on December 12, 2007 01:49 PM

2. Washington is an all-party consent state, a recording made without consent of all parties won't work in court AFAIK. The RCW that talks about it is at http://search.leg.wa.gov/pub/textsearch/ViewRoot.asp?Action=Html&Item=5&X=1212140512&p=1

Not an attorney, but I do PI work so this stuff matters to me.

Posted by: TomP on December 12, 2007 01:58 PM

3. I am an attorney. Washington's privacy law is Revised Code of Washington section 9.73.030. It makes it unlawful for "any individual...to intercept, or record any...private conversation..." It contains exceptions for emergencies, threats, harrassing phone calls, and hostage situations, but does not wholly exempt police.

Posted by: Paul G on December 12, 2007 02:03 PM

4. Generally speaking, this is an informed consent state. You have to give me permission to record our conversation. If its obvious I'm recording you (I have a microphone and tape recorder in plain sight) then its presumed you have given me permission. If the recorder is hidden or not obvious to you, then I need to gain your consent. A radio reporter is trained to tell the person at the other end of the line that they are being recorded...The reporter might say, "I'm recording our conversation, could I get you to spell your name for me so I can set a level."
If you are in public, you are pretty much fair game for having your photo taken. On private property, you will likely need to be told that you are being recorded, but that is often done in stores by posting a sign that informs you a surveillance system is present. If you enter the store, you've given consent.

Posted by: spinmd on December 12, 2007 02:06 PM

5. That said, I can find no reported cases of officer prosecution under the law. Rather, it is nearly always used by criminals whose conversations the police recorded, to suppress the recording in their criminal trials.

Posted by: Paul G on December 12, 2007 02:06 PM

6. Yeah, but I would like to record my arrests as a matter of course. In the event the perp gets weired and later claims brutality, etc., you have a defense.

Posted by: swatter on December 12, 2007 02:22 PM

7. All you would need to make it legal is for the cop to say that it was being recorded or to wear a badge to that affect.

Posted by: Giffy on December 12, 2007 05:01 PM

8. Giffy,

You miss the point. This is a two-party consent state. That means that BOTH parties MUST consent to the recording for it to be usable. If the police officer just tells you that you are being recorded and you tell him "no", the recording may not be used. Actually, that's why even if the recorder and mic are sitting on the desk, the officer will state that the conversation is being recorded and will ask your permission on the tape - that way there is no question as to whether or not you knew and agreed to the recording.

Posted by: Jay on December 12, 2007 05:40 PM

9. I VERY distinctly recall the TV broadcast of a convenience store robbery about a year ago. For the first time in my memory, the AUDIO portion of the recording was broadcast on local TV news in order to assist in the ID of the perp. His voice was loud and clear, but I don't think there was any followup news coverage.

The robbery DID NOT occur in King County. Perhaps it was Thurston County. I therefore suspect that Washington counties have some individual discretion about whether to allow audio recordings without permission.

Most security cameras have a switch to allow the user to disable the audio portion of the recording. Warnings about recording of audio are included with the set-up instructions.

Our justice system bending over backwards AGAIN to protect the criminal. In most cases. Except, to wit:

Also about a year ago, a man and woman entered a convenience store in Ballard (I think)and were refused service because the proprietor deemed them intoxicated. The man and woman then hurled cultural epithets at the proprietor who was middle eastern. In that incident the audio was allowed to be broadcast on TV (and used in court?) since it supported the prosecution of a hate crime. The man and woman were convicted of "harassment". Harassment is the King County version of a hate crime. They must had some lousy counsel or there are exceptions to the "no audio" rule in King County as well.

Posted by: Bart Cannon on December 13, 2007 03:20 AM