Is Washington a two-party consent state?

RCW 9.73.030(1) makes it unlawful for any individual or entity to intercept or record any private communication without the consent of all participants. It covers in-person conversations and wire or electronic communications alike. Because "private communication or conversation" is written into the prohibition, it is an element the state must establish, not a defence: the courts have said so in State v. Townsend, 57 P.3d 255 (Wash. 2002), Lewis v. Department of Licensing, 139 P.3d 1078 (Wash. 2006), and State v. Clark, 916 P.2d 384 (Wash. 1996).

RCW 9.73.030(4) gives journalists at an established news organisation a deemed-consent provision where consent is expressly given or the recording device is readily apparent to the speakers. That one is not available to the rest of us.

RCW 9.73.030(3), verbatim from the legislature's own site:

"Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded."

Four things follow, and each of them changes what you do.

The announcement must reach all other parties. Not the ones who happened to be in the room at the time, and not the ones who read the invite.

"In any reasonably effective manner" is the standard, so no fixed script is required. That is more forgiving than California's case law, not less.

It must come when the conversation "is about to be recorded", so before capture starts.

And the announcement itself must be inside the recording. This is the requirement most notice scripts get wrong, because it inverts the obvious order of operations: the recorder has to be running before you speak the notice, or the one thing the file does not contain is the thing that establishes consent.

On whether anyone has to say yes: the statute requires no affirmative answer at all, because a compliant announcement is deemed to be consent obtained. On a beep alone, the Kilpatrick 50-state chart answers its own beep-notice column for Washington with "not expressly stated anywhere, err on side of caution", and lists as permitted options a verbal notification followed by an ongoing automated beep, or a short verbal notification, citing State v. Archie, 148 Wash. App. 198 (2009). A written-only notice is affirmatively doubtful here, more so than in any other state, because the statute contemplates an announcement that is itself recorded and a calendar line cannot be. No authority was found on calendar-invite notices.

RCW 9.73.080 makes a violation of RCW 9.73.030 a gross misdemeanor. Knowingly altering, erasing or wrongfully disclosing a recording in violation of RCW 9.73.090(1)(c) is also a gross misdemeanor. Sources disagree on the classification, with the Kilpatrick chart calling it a Class A misdemeanor; the statute and RCFP both say gross misdemeanor, and we prefer the statute.

The civil side is comparatively small. RCW 9.73.060 gives a private right of action for actual damages "including mental pain and suffering", or liquidated damages "computed at the rate of one hundred dollars a day for each day of violation, not to exceed one thousand dollars", plus fees and costs. Note that the $1,000 is a cap here, unlike the "whichever is higher" floors in Virginia and Wisconsin, which means Washington's criminal and reputational exposure is far larger than its civil exposure.

No rule settles which state's law applies to a call spanning two of them, several may apply at once, and courts have gone both ways on comparable facts. If anyone on the call is in Washington, the practical answer is to satisfy Washington, which here means the recorded announcement. The general problem is on the US overview.

Washington asks for less than California does in one way and more in another: no affirmative agreement is needed, but the words have to be on the recording. So the useful script here is short and definite.

Before we start: this conversation is being recorded and transcribed for my notes. It runs on my own laptop and nothing is uploaded. Say so now if you'd rather I didn't.

Asking a question and pausing for an answer is still worth doing, because it is what makes the offer to stop real and because the same meeting may have someone in a state that wants agreement rather than notice. Longer and shorter versions are on telling people you're recording.

This is the one place in the whole survey where always-on capture answers a legal requirement directly rather than merely coexisting with it, so it is worth stating carefully rather than enthusiastically.

The proviso in RCW 9.73.030(3) creates an ordering problem for any tool with a record button: you have to start recording, then announce, and getting it the wrong way round means the announcement that establishes consent is the one thing missing from the file. With continuous capture the day is already recording before anyone speaks, so a spoken announcement is captured by construction and the ordering problem cannot arise.

Three cautions belong with that, and all three are real. It is one state, and nothing like it exists in the other fifty. It is our reading of the proviso, not a holding: we found no case applying it to this ordering question, so treat it as what the statute says and what follows from it. And Earkeep marks a meeting as a span after the fact, so the span you later select may start after the announcement was spoken. The day's record contains it; the span might not. Draw the span wide enough to include the opening if that matters to you.

Beyond that, the ordinary points apply. Earkeep announces itself to nobody, so saying it is entirely yours to do. A pause from the live edge releases the microphone and the system audio stream, so the operating system's recording indicator goes dark in front of the person who asked. A calendar meeting can be marked never-record. A stretch of the day can be purged. And none of that makes a recording lawful, because no tool can.

• RCW 9.73.030 and RCW ch. 9.73 in full, official text.
• RCFP, Reporter's Recording Guide: Washington.
• Kilpatrick 50-state wiretap chart, July 2024, on beep notification.
• Congressional Research Service R41733.

• US recording laws, state by state: the federal baseline, the cross-border problem, and all 51 jurisdictions.
• Telling people you're recording: the scripts, and the three ways to stop.
• Always-on capture: why there is no record button.

This page is legal information, not legal advice. It summarises statutes and cases rather than replacing them, and we are not lawyers. If the answer matters, ask someone who can be held to their answer.