Recording Law for Employers & Businesses in Washington

Washington is one of the few states that requires every person in a private conversation to agree before you can legally record their audio. This rule is found in Washington’s Privacy Act, specifically RCW 9.73.030, which makes it unlawful to "intercept, or record any [private communication] without first obtaining the consent of all the participants in the communication." The law applies to both telephone calls and in-person conversations, and it does not create a phone-vs-face-to-face split: both require all-party consent if the conversation is private. The only way to meet this requirement without obtaining each person’s explicit permission is to clearly announce that recording is happening before or during the conversation. This announcement must be made in a way that is reasonably effective and itself recorded. Washington courts have recognized this mechanism in RCW 9.73.030(3), which allows a party to satisfy the all-party consent requirement by announcing the recording in a manner that is itself recorded.

Washington courts decide if a conversation is private using a multi-factor reasonable-expectation-of-privacy test that originated in Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992) (quoting State v. Forrester, 21 Wn. App. 855, 861, 587 P.2d 179 (1978), for the dictionary definition of "private"). The test was elaborated into its operative form—considering 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 his or her relationship to the consenting party—by State v. Clark, 129 Wn.2d 211, 225–27, 916 P.2d 384 (1996) (Supreme Court). The precise two-part phrasing—(1) subjective intent and (2) objective reasonableness—was later articulated in State v. Townsend, 147 Wn.2d 666, 673, 57 P.3d 255 (2002), and crystallized in State v. Christensen, 153 Wn.2d 186, 193, 102 P.3d 789 (2004), which cites Townsend and Clark. State v. Modica, 164 Wn.2d 83, ¶ 7, 186 P.3d 1062 (2008) (Supreme Court) restated the test again. For example, a quick exchange on a public sidewalk about the price of an item is not likely private, while a long, detailed discussion about personal health in a private office probably is. State v. Flora, 68 Wn. App. 802, 806–08, 845 P.2d 1355 (Div. I 1992), applies the same gate to hold that an on-duty officer’s statements during a public arrest are not a 'private conversation.'

If your staff wear smartglasses that capture audio during employee–customer interactions, Washington’s all-party consent rule applies if the conversation is private. The statute covers both in-person 'private conversation[s]' captured 'by any device electronic or otherwise' under RCW 9.73.030(1)(b) and 'private communication[s] transmitted by telephone, telegraph, radio, or other device' under RCW 9.73.030(1)(a), and both require consent of all participants. If the glasses only record video without audio, the law likely does not restrict the recording at all because the statute targets the recording of conversations—an inherently aural concept—and Washington cases analyze whether a conversation was private, not whether an image was captured. However, as soon as the glasses capture audio of a private conversation—even a short one—the rule kicks in. The simplest way to comply is to announce clearly and visibly that recording is taking place; RCW 9.73.030(3) lets a party satisfy 'consent' for all others simply by announcing, in a reasonably effective and itself-recorded manner, that recording is about to occur. For example, a visible light or a spoken phrase like 'This conversation is being recorded' can satisfy the law’s consent requirement. If you cannot make this announcement, you should not record audio of the interaction. Note that adding an audio track to a home security or doorbell camera can trigger the all-party-consent requirement if it captures a visitor’s private conversation without consent, even on the recorder’s own property; the same 'private conversation' test applies regardless of location, with location simply being one factor bearing on whether an expectation of privacy was reasonable.

Washington’s Privacy Act does not create a special exception for public places, but courts interpret the law so that conversations in public—where third parties can overhear—are usually not private. State v. Clark, 129 Wn.2d 211, 225–27, 916 P.2d 384 (1996) (Supreme Court), held that drug-sale conversations on public streets, within earshot of passersby, were not private, so recording them did not violate the law. Lewis v. State, Dep’t of Licensing, 157 Wn.2d 446, 139 P.3d 1078 (2006) (Supreme Court) reinforced this line by holding traffic-stop conversations with police are not 'private conversations' under the Privacy Act, while separately addressing officers’ recording obligations. Recording an on-duty police officer performing official duties in a public place is generally lawful under both state case law and the First Amendment. State v. Flora, 68 Wn. App. 802, 806–08, 845 P.2d 1355 (Div. I 1992), found that an officer’s statements during a public arrest were not a private conversation, and the Ninth Circuit has recognized a First Amendment right to record police officers in public performing their duties in Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) and Askins v. U.S. Dep’t of Homeland Security, 899 F.3d 1035 (9th Cir. 2018). However, a private or non-public encounter with an officer could still require consent under the multi-factor test in State v. Clark.

If your smartglasses or cameras only capture video without recording audio, Washington’s all-party consent rule does not apply. The statute targets the recording of conversations—an inherently aural concept—and Washington cases analyze whether a conversation was private, not whether an image was captured. Courts have held that conversations must involve audio to fall under the Privacy Act, and secondary sources uniformly state that video recorded without an audio track falls outside the statute’s all-party-consent requirement. State v. Clark, 129 Wn.2d 211, 225–27, 916 P.2d 384 (1996) analyzes whether a 'conversation' was private, not whether an image was captured. There is no Washington appellate decision squarely holding that silent video, standing alone, is categorically outside Chapter 9.73 RCW; the conclusion is a strong statutory-text inference reinforced by secondary sources rather than a one-case controlling holding, so treat this specific sub-point as medium confidence even though the overall all-party-consent finding is high confidence. Practical implication: a wearable capturing video only (mic off/muted) is very likely unrestricted by RCW 9.73.030; turning on audio brings the recording back under the all-party consent rule for any 'private' conversation captured.

Adding an audio track to a home security or doorbell camera can trigger the all-party-consent requirement if it captures a visitor’s private conversation without consent, even on the recorder’s own property. RCW 9.73.030 does not contain a distinct statutory rule for the home; the same 'private conversation' test applies regardless of location, with location simply being one factor bearing on whether an expectation of privacy was reasonable. In practice, conversations occurring inside a private residence are much more likely to be found 'private' (and thus require all-party consent to record the audio) than conversations conducted on a public street. The announcement mechanism in RCW 9.73.030(3) remains the only way to satisfy the all-party consent requirement for audio captured in a home.

Imagine a retail employee wearing smartglasses that record video and audio during a customer service interaction. The customer asks about a product’s features, and the employee explains pricing and availability. Because the conversation is brief and takes place in the store’s public area, it is not a private conversation under the multi-factor test in State v. Clark, 129 Wn.2d 211, 225–27, 916 P.2d 384 (1996). The employee has announced, 'This conversation is being recorded for quality and training purposes,' which satisfies Washington’s consent requirement under RCW 9.73.030(3). The recording is lawful. Now imagine the same employee uses the glasses to record a private conversation with a coworker about a sensitive HR issue in a back office. The conversation is private, and the employee did not announce the recording. This would violate Washington’s Privacy Act and could expose the employer to civil damages under RCW 9.73.060 and criminal liability under RCW 9.73.080.

A homeowner installs a doorbell camera that records both video and audio. A visitor arrives and, while standing on the front porch, has a brief conversation with the homeowner about the weather. Because the conversation is short, occurs in a location open to the public (the porch), and is within earshot of passersby, it is not a private conversation under State v. Clark, 129 Wn.2d 211, 225–27, 916 P.2d 384 (1996). The recording is lawful. However, if the same camera records an extended conversation about personal matters in the home’s interior, the conversation is likely private and the all-party consent requirement applies. If the homeowner did not announce the recording, the audio portion would violate RCW 9.73.030. Even if the homeowner announces the recording, the announcement must be made in a reasonably effective and itself-recorded manner to satisfy RCW 9.73.030(3).

Washington has a separate Biometric Privacy Act, RCW 19.375, that may apply to features that derive a 'voiceprint' from recorded audio. The statute defines 'biometric identifier' to include a 'voiceprint,' but it expressly excludes 'video or audio recording or data generated therefrom' from the definition of 'biometric identifier.' Because live.law’s feature derives a voiceprint from a captured audio recording, there is a textual tension: the voiceprint may be 'data generated' from an 'audio recording,' which the statute excludes. No Washington appellate case has squarely resolved this inclusion–exclusion tension, so the statute’s application to this feature is unresolved and should be treated as medium confidence. If the statute is found to apply, RCW 19.375.020(1) requires notice, consent, or an opt-out mechanism before enrolling a biometric identifier 'for a commercial purpose'—a term defined narrowly to exclude security or law-enforcement purposes. Purely internal enrollment to power live.law’s own product feature, never sold or disclosed to third parties for unrelated marketing, may fall outside this trigger. If 'biometric identifier' status is found to attach, the statute imposes duties including: (i) RCW 19.375.020(3) bars selling or disclosing an enrolled identifier to third parties for a commercial purpose without consent (subject to exceptions); (ii) RCW 19.375.020(4) requires reasonable care against unauthorized access and caps retention to what is necessary for legal compliance, fraud or security prevention, or providing the enrolled-for service; (iii) RCW 19.375.020(7) has an untested 'security purpose' carve-out from the notice/consent duty; and (iv) RCW 19.375.020(5) requires new consent before using or disclosing an already-enrolled identifier in a manner materially inconsistent with original terms. Enforcement is solely by the Attorney General under the Consumer Protection Act; there is no private right of action.