Legal vs Illegal Surveillance

In today’s technology-driven world, surveillance is more prevalent than ever. From home security cameras to smartphone recordings, both law enforcement and private individuals have unprecedented access to tools that allow them to monitor others. But just because technology makes it easy doesn’t mean it’s always legal. In Washington State, surveillance—particularly the recording of conversations—is governed by strict laws that aim to protect privacy. Whether evidence is being gathered for use in a legal dispute or simply out of personal suspicion, it’s critical to understand what types of surveillance are lawful, and which can lead to criminal charges or the exclusion of evidence in court.

Washington is one of the few states that requires the consent of all parties involved before a private conversation can be legally recorded. Under RCW 9.73.030, it is a crime to intercept or record a private communication, whether in person or over the phone, unless every party consents to the recording. This applies to audio recordings where there is a reasonable expectation of privacy, such as a phone call, a private conversation in a home or office, or a confidential meeting.

Violations of Washington’s consent statute are considered gross misdemeanors and may also expose the recording party to civil liability. Importantly, any recording obtained in violation of this law is generally inadmissible in court, meaning it cannot be used as evidence in either criminal or civil proceedings. The law makes narrow exceptions, such as for recordings made in public spaces where no privacy is expected, or in limited law enforcement situations governed by other statutes.

Surveillance by Law Enforcement

Law enforcement officers in Washington are not exempt from the state’s surveillance laws. In most cases, officers must obtain judicial authorization before recording private conversations or conducting electronic surveillance. This includes phone taps, hidden microphones, and similar forms of audio monitoring. Washington law—especially Article I, Section 7 of the state constitution—provides broader privacy protections than the Fourth Amendment, and courts have consistently held law enforcement to a high standard in justifying surveillance activities.

Some exceptions exist. For example, law enforcement may conduct certain types of surveillance under RCW 9.73.090 or related statutes if one party to the conversation consents and the recording is related to a felony investigation. However, even in those cases, agencies must comply with procedural requirements, including chain-of-command approval and proper notice to courts. Unauthorized recordings by law enforcement can result in the suppression of evidence and, in some circumstances, civil rights claims against the department.

It is essential to distinguish between video and audio surveillance, as they are treated differently under the law. Video surveillance without audio is generally legal when conducted in public spaces where individuals do not have a reasonable expectation of privacy—such as on sidewalks or in store parking lots. However, when video surveillance occurs in private spaces, such as inside a home or office, it may constitute an invasion of privacy, particularly if the person being recorded is unaware of the monitoring.

Audio recordings, by contrast, are far more regulated. Adding sound to a video, such as a nanny cam or home security system that records conversations, may violate Washington’s two-party consent law if all parties did not explicitly agree to the recording. This distinction is critical: while a silent video recording of someone entering a property might be admissible, the same video containing a private conversation could render the entire file inadmissible and expose the person who recorded it to criminal penalties.

Surveillance by Private Individuals

Private citizens are often unaware that their use of surveillance technology may violate state law. Common examples include recording a spouse or roommate without their knowledge, secretly taping a phone call during a dispute, or installing hidden cameras with audio in shared living spaces. While the motivation may be to protect oneself or gather evidence of wrongdoing, these actions can still lead to criminal charges and may severely undermine any potential legal claims.

Even when a person believes the recording will help them in a legal case—such as documenting harassment, threats, or abuse—the recording must comply with Washington law to be admissible. Courts have consistently excluded illegally obtained recordings, regardless of their potential value, and parties who make unlawful recordings may face counterclaims for invasion of privacy or violation of the surveillance statutes.

Admissibility and Remedies

Generally, Washington courts will not admit illegally recorded evidence obtained in violation of RCW 9.73.030. This applies equally in both criminal and civil proceedings. Evidence that results from unauthorized surveillance may be suppressed, which means it cannot be used against a defendant or litigant. In criminal cases, unlawful recordings may also violate constitutional protections, leading to broader suppression of derivative evidence or potential dismissal of charges.

Victims of illegal surveillance may have civil remedies, including statutory damages, injunctive relief, and attorney’s fees. These remedies are available even if the individual who made the recording was not charged criminally. If you believe you have been recorded without your consent, you may have the right to pursue legal action under both state privacy statutes and common law torts.

When to Consult an Attorney

Whether you are the subject of surveillance or considering recording a conversation for legal purposes, it is essential to seek legal advice before taking action. Unlawful surveillance can carry serious consequences, including criminal prosecution, exclusion of critical evidence, and civil liability. An attorney can help assess whether a specific recording is legal, whether the parties had a reasonable expectation of privacy, and what legal options are available for protecting your rights.

Contact the Law Office of Erin Bradley McAleer

The legality of surveillance in Washington depends on context, consent, and the nature of the recording. At the Law Office of Erin Bradley McAleer, we have extensive experience advising clients on digital evidence, privacy rights, and the admissibility of surveillance in court. If you believe you were unlawfully recorded, or if evidence is being used against you that may have been obtained in violation of the law, we are here to help. Call our office at (360) 334-6277 or schedule a confidential consultation.