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Washington Privacy Act (RCW 9.73.030)
Overview
The Washington Privacy Act, with its core prohibition in RCW 9.73.030, is Washington State's wiretapping and recording law. Enacted in 1967, a year before the federal Wiretap Act, it is regarded as one of the strictest privacy statutes in the country. It prohibits any individual, business, or government body from intercepting or recording any private communication transmitted by telephone, telegraph, radio, or other device, or any private conversation, without first obtaining the consent of all participants. Washington courts have held that electronic messages qualify as private communications under the Act and in recent years plaintiffs have invoked the Act against website technologies, tracking pixels, session recording, and chat tools, that capture visitor communications and share them with third parties, following the same litigation pattern seen under California's CIPA and other state wiretapping laws.
Regulation Summary
- 1967 – The Washington Privacy Act was enacted, one year before the federal Wiretap Act, establishing all-party consent for private communications and conversations.
- 1970–1986 – A series of amendments refined the Act, including exemptions for emergency services and the consent-by-announcement mechanism.
- November 2002 – In State v. Townsend, the Washington Supreme Court confirms that electronic messages, such as emails, are private communications protected by the Act, laying the foundation for its application to digital communications.
- 2020s – Plaintiffs increasingly invoke the Act against website tracking technologies such as pixels, session recording, and chat tools, as part of the nationwide wave of website wiretapping litigation.
- Any individual, partnership, corporation, or association, and even Washington State agencies, that intercepts or records private communications or conversations involving people in Washington.
- Out-of-state businesses whose websites, apps, or call centers interact with Washington residents; the Act covers communications between points within or outside the state.
- Websites using chat tools, session recording, tracking pixels, or analytics that capture the contents of visitor communications and transmit them to third parties.
- Businesses recording customer phone calls, video meetings, or voice interactions with Washington participants.
- Interceptions and recordings made with the consent of all participants are lawful.
- Uniquely, consent is deemed obtained when one party announces to all others, in a reasonably effective manner, that the communication is about to be recorded, provided the announcement itself is recorded. Washington courts have also found consent where a person communicates knowing the message will be recorded.
- Communications of an emergency nature, threats of extortion or bodily harm, anonymous or repeated harassing calls, and hostage-related communications may be recorded with one party's consent.
- Employees of established news organizations have deemed consent where consent is express or the recording device is readily apparent.
- The Act protects only private communications and conversations; whether a communication is private depends on the parties' reasonable expectations.
- Obtain the consent of all participants before intercepting or recording any private communication or conversation involving Washington residents.
- Use the announcement mechanism for calls: state clearly at the start that the call is being recorded, and make sure the announcement itself is captured in the recording.
- Inventory all technologies that capture or transmit communications, including call recording, meeting tools, live chat, chatbots, session recording, and advertising pixels.
- Ensure third-party vendors do not receive the contents of visitor or customer communications before consent is established.
- Remember that the Act binds corporations and associations directly, not just individuals, so compliance is an organizational obligation.
- Provide a clear, upfront notice and obtain consent before chat tools, session recording, or tracking pixels capture the contents of visitor communications for Washington visitors.
- Apply the announcement principle online: a prominent, reasonably effective notice that an interaction is about to be recorded, presented before the recording begins and acknowledged by the visitor, is the strongest position under the Act.
- Display a recording notice at the start of live chat and chatbot sessions, before the visitor sends their first message.
- Block non-essential third-party scripts until consent is given, and keep them blocked for visitors who decline.
- Disclose in the privacy policy which communications are recorded, for what purposes, and which third parties receive them.
- Keep timestamped records showing that notice was given and consent obtained before any capture began.
- Recordings obtained in violation of the Act are inadmissible in any civil or criminal proceeding in Washington (RCW 9.73.050), a powerful evidentiary consequence beyond damages.
- Whether a communication is “private” is assessed case by case, considering the parties' intent, the reasonableness of their expectations, and the context, sensitive form inputs and support conversations deserve the most care.
- Businesses handling consumer health data on their websites should note that Washington's separate My Health My Data Act adds its own consent obligations on top of the Privacy Act.
- Review vendor contracts to confirm what visitor communications your chat, analytics, and advertising providers receive from Washington users.
- The right not to have private communications or conversations intercepted or recorded without the consent of all participants.
- A private right of action under RCW 9.73.060: injured persons may recover actual damages, including mental pain and suffering, or liquidated damages of $100 per day of violation up to a maximum of $1,000, whichever is greater, plus reasonable attorney fees.
- The right to have unlawfully obtained recordings excluded from evidence in Washington proceedings.
- Criminal enforcement: Violating RCW 9.73.030 is a gross misdemeanor under RCW 9.73.080, punishable by up to 364 days in county jail and a fine of up to $5,000.
- Civil enforcement: Private lawsuits under RCW 9.73.060 for actual damages including emotional harm, or liquidated damages of $100 per day up to $1,000, whichever is greater, plus attorney fees, with class actions multiplying exposure across many visitors.
- Evidentiary sanction: Unlawfully obtained recordings are inadmissible in any Washington civil or criminal proceeding.