Recording Law for Voiceprints & Biometric Data in Washington

Washington requires everyone in a private conversation or private communication transmitted by telephone, telegraph, radio, or other device to agree before you can record it. This comes from the state’s Privacy Act, RCW 9.73.030, which says it’s unlawful to intercept or record a "private communication" or a "[p]rivate conversation" without first getting "the consent of all the participants." The law covers both phone calls and in-person conversations, and it applies whether you use a phone, a hidden recorder, or any other device. You can meet the consent requirement by clearly announcing that you’re recording — for example, saying out loud, "I’m recording this conversation." If the conversation is happening in a place where people have a reasonable expectation of privacy, like a private home or office, all parties must agree before you press record. Recording without consent can lead to criminal charges and civil lawsuits under RCW 9.73.080 and RCW 9.73.060.

Not every conversation is protected under Washington’s Privacy Act. Courts look at whether the conversation was private based on where it happened and who could hear it. In State v. Clark, the Washington Supreme Court applied a multi-factor test to determine whether a conversation was private: the duration and subject matter of the conversation; the location and presence or potential presence of third parties; and the role of the nonconsenting party and their relationship to the consenting party. Clark held that drug-sale conversations conducted on public streets, in front of or within earshot of third parties or passersby, were not private, so recording them did not violate RCW 9.73.030. Similarly, courts have held that on-duty police officers performing official duties in public don’t have a protectable "private conversation" interest. In State v. Flora, a Washington Court of Appeals decision, a court found that a defendant’s covert recording of police during his own arrest wasn’t a violation because the officers were acting in their official capacity in a public setting. However, if the encounter is private or one-on-one, like inside a home or in a non-public police interview room, the conversation is more likely to be considered private and require consent.

Washington’s Privacy Act includes several narrow exceptions where one-party consent is sufficient or no consent is required at all. Under RCW 9.73.030(2), no consent is required to record emergency calls involving fire, medical, crime, or disaster response; extortion, blackmail, or threats of bodily harm; anonymous or repeated calls at inconvenient hours; or hostage or barricaded-person communications. The statute also provides a carve-out for bona fide news media under subsection (4). Additionally, subsection (3) allows a party to satisfy the "consent" requirement for all others by announcing, in a reasonably effective and itself-recorded manner, that recording is about to occur — a rule relevant to visible, announced wearable devices. These exceptions are strictly limited and do not create a general one-party consent regime; they apply only where the specific statutory conditions are met.

Washington has a Biometric Privacy Act, RCW 19.375, but its application to voiceprints derived from recorded audio is unsettled. The law defines "biometric identifier" to include things like voiceprints, but it also expressly excludes "video or audio recording or data generated therefrom" from the definition of "biometric identifier." Because a voiceprint may be derived from an audio recording, there is a genuine textual tension: the voiceprint may be "data generated" from an "audio recording," which the statute excludes. No Washington appellate decision has resolved this specific inclusion-vs-exclusion tension. Even if the statute is found to apply, enforcement is handled only by the Attorney General under RCW 19.375.030, not through private lawsuits. The law requires notice, consent, or an opt-out before enrolling biometric data for a commercial purpose under RCW 19.375.020, but this may not apply if the voiceprint is used only for internal product security or law-enforcement purposes, which are excluded categories under RCW 19.375.040.

Recording a private conversation or private communication without consent in Washington is a gross misdemeanor under RCW 9.73.080. Victims can also sue for actual damages and reasonable attorney’s fees under RCW 9.73.060. These penalties apply to anyone who records a private conversation without consent, including lawyers, businesses, and individuals.

Imagine you’re a lawyer meeting a client at a busy coffee shop. The client agrees to the meeting but doesn’t know you’re recording it. Under Washington law, this recording could be illegal if the conversation is private. Even though the shop is public, if the conversation is quiet and not overheard by others, a court might find it private. To stay safe, announce clearly that you’re recording — for example, saying, "I’m recording this conversation for my notes." If the client objects, stop recording. If you’re unsure whether the conversation is private, assume it is and get consent or use the announcement method.

If your product creates a voiceprint from a recorded conversation, check whether the recording itself complies with Washington’s all-party consent rule. The Biometric Privacy Act may not apply to voiceprints derived from audio recordings, but this isn’t settled law. Even if it doesn’t apply, consult a Washington lawyer to review your specific use case — especially if you’re recording conversations in private homes, with police, or in other sensitive settings.