Recording Law for Video-Only Recording in Washington

Washington’s privacy law, RCW 9.73.030, requires everyone in a private conversation to consent before you can record it. The law covers both transmitted communications (such as telephone calls) and in-person conversations, and it applies to recordings made “by any device electronic or otherwise.” Courts have interpreted this to mean the law targets the *content* of what is said, not just the act of capturing images. For example, the Washington Supreme Court in State v. Clark, 129 Wn.2d 211, 916 P.2d 384 (1996), applied a multi-factor reasonable-expectation-of-privacy test and held that drug-sale conversations conducted on public streets, in front of or within earshot of third parties/passersby, were not private because the participants lacked a reasonable expectation of privacy under the circumstances. This means silent video or photos taken in public places may still be restricted if the audio portion of a private conversation is captured, but visual-only capture in public places where the conversation is not private is not restricted by the all-party consent rule.

Because RCW 9.73.030 focuses on recordings of conversations and communications, silent video or photos—whether taken in public or private—are not covered by the statute’s all-party consent requirement. The law restricts the recording of the *content* of a private conversation or communication, not the act of capturing images. Courts have not issued a definitive ruling specifically on silent video, and legal experts and secondary sources caution that the law’s text and purpose do not clearly apply to visual-only capture. Turning on the audio while recording video would change this, as the audio portion would then fall under the all-party consent requirement if the conversation is private.

If you add audio to your video recording, the all-party consent rule applies if the conversation is private. Under Washington law, a conversation is private if the participants have a reasonable expectation of privacy based on the circumstances. Courts look at factors like the location, the subject matter, the presence of third parties, and the relationship between the people talking. For example, a conversation inside a private home is much more likely to be considered private than a quick exchange on a public sidewalk. If the conversation is private, you must either get consent from everyone involved or clearly announce that you are recording before capturing the audio, as provided in RCW 9.73.030(3). The announcement must be reasonably effective and itself recorded.

Washington courts have ruled that conversations between police officers and the public during official duties in public places are not private. In State v. Flora, 68 Wn. App. 802, 845 P.2d 1355 (Div. I 1992), a Washington appeals court held that an on-duty officer’s statements during a public arrest were not a “private conversation,” so recording them did not violate the privacy law. The Washington Supreme Court later reinforced this rule in Lewis v. State, Dep't of Licensing, 157 Wn.2d 446, 139 P.3d 1078 (2006), holding that traffic-stop conversations with police are not “private conversations” under the Privacy Act. The Ninth Circuit, which covers Washington, has also recognized a First Amendment right to record police officers performing official duties in public in Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). However, secondary legal commentary notes that the Ninth Circuit’s doctrine on a clearly established right to record police is regarded as somewhat less definitively settled than in some sister circuits. This protection applies only in public settings where the encounter is observable by others. A private or non-public conversation with an officer could still be considered private and require consent.

Imagine you are attending a public protest in Seattle. You use your phone to record video of the event, but you keep the microphone turned off so no audio is captured. Since the video is silent and taken in a public place where the conversation is not private, it is not restricted under Washington’s privacy law. Even if the people in the video did not consent to being recorded, the law does not require their permission for silent video. If you later decide to turn on the microphone to record chants or speeches, the audio portion would require consent if the conversation is private, but the video itself remains unrestricted.

If you record a private conversation without consent, you could face serious consequences. Under RCW 9.73.080, it is a gross misdemeanor, punishable by up to a year in jail and a $5,000 fine. The person whose conversation was recorded can also sue you for damages under RCW 9.73.060, which allows for actual damages, $100 per day of violation (capped at $1,000), plus attorney’s fees. These penalties apply only to audio recordings of private conversations, not to silent video or photos.

Adding an audio track to a home security or doorbell camera can trigger the all-party consent requirement under RCW 9.73.030 if it captures a visitor’s private conversation without consent, even on the recorder’s own property. Washington courts apply the same multi-factor test to determine whether a conversation is private, regardless of location, and conversations inside a private residence are much more likely to be found “private” than those conducted on a public street. There is no carve-out allowing a resident to make one-party-consent audio recordings of visitors or occupants in their own home. Turning on audio in a doorbell or security camera may therefore require consent from all parties to the conversation. Practitioner commentary notes that this application is based on secondary sources rather than a single controlling appellate case, so the rule is somewhat less certain in this specific context.