Surveillance Laws 101
The laws surrounding video surveillance technology are often confusing, even for experts in the area. Now that high-definition cameras are both affordable and commonplace, people often find themselves caught off guard when it comes to their legal rights and responsibilities regarding video surveillance. This is particularly true for individuals and businesses in Washington State, who have seen a growing trend in new video surveillance laws over the past few years.
Although the terms "surveillance" and "spying" are commonly used interchangeably to describe the act of covertly watching someone with the intent of documenting their actions, the reality is that surveillance laws are much more complicated. In Washington State, there are numerous laws governing the use of video technology for surveillance purposes, which can result in costly decisions if you fail to assess your rights prior to unwittingly recording someone with or without their consent.
This article is designed to provide an overview of video surveillance laws in Washington State, who they may apply to, and why it is important to understand what they mean. Most importantly, it will cover how not understanding the law can result in significant consequences, both personally and financially , and how the problem of being unaware of the law has been growing for both individuals and businesses alike.
Local governments have recently been given greater authority over surveillance issues. The City of Seattle has passed several ordinances governing surveillance technologies, requiring that all city departments adopt policies to deal with all issues related to the use of surveillance technologies, such as how to dispose of recordings, how long they’re kept, and how to properly handle requests from the public for copies of recordings. The City also requires all city agencies to submit a report to the Mayor and City Council describing the agency’s tracking of and response regarding all uses of surveillance technologies.
These recent changes to Washington State law signal a continuing emphasis on growing concerns regarding both public and private surveillance, as well as a warning to be mindful of the consequences of your actions. As drones and digital security cameras with no signs or indicators of recording become more commonplace, it is becoming increasingly difficult to detect surveillance technology. Unbeknownst to you, someone could be watching you through a window of your home, or while you sit on a park bench with your phone in your pocket, and you would be none the wiser. To avoid the risk of getting caught on the wrong side of the law, it is important to know your rights.
Legal Protections Offered by Surveillance Laws
The legal framework for video surveillance in Washington is governed under the Electronic Surveillance Act, RCW 9.73 et. seq., which outlines under what circumstances and under whose authority law enforcement officials may use electronic devices to listen in on or record private conversations. While this law does not directly address video surveillance, there are two statutes of particular note that affect video surveillance in your home and workplace.
Under RCW 9.73.030(1)(b)(ii), a person, including an employer who has notified the employee, may not record "any private conversation or private communication which is not conducted on a public street or place by means of any device designed to record or transmit human conversation." Human conversation includes talking, shouting, crying and also notes, messages and non-verbal actions such as gestures.
RCW 9.73.050 outlines when it is permissible to video record conversations in Washington. Similar to voyeurism laws in Washington State (RCW 9A.44.115), it is permissible for a person to use a camera or other electronic device to record a person committing a crime in plain view if that person is not placed in fear for their safety. Further, a person may use a camera or other electronic device to record video of a person in places where other people can also see, with the exception of bathrooms, locker rooms, and changing rooms. In some cases, a judge may decide that even recording where other people can see is an invasion of privacy.
Consent and Reasonable Privacy Expectations
Washington has both wiretapping and stalking statutes that can bear on the use of video surveillance. Overlapping with federal wiretap laws, Washington law makes it illegal to spy on a private conversation without consent or by the use of "any other mechanical, electronic, or other device capable of eavesdropping upon the conversation." Similarly, Washington law prohibits the use of a device to record or transmit images of another within a private place where the individual "has a reasonable expectation of privacy."
A "private place" is defined as one where a person "exhibits an expectation of privacy, which expectation is reasonable under the circumstances." The location may be considered a private place even if the person in the place is in plain view of the public. For example, the law has held that where individuals were in a sauna, they had a reasonable expectation of privacy even though the establishment did not restrict admission to members only. Significantly, bathrooms and other places where people may undress are treated as private places. In addition, Washington law makes it a crime to use a drone to "photograph, record, or otherwise collect identifiable images" of individuals or privately owned property without consent.
Video Cameras in Homes and Private Businesses
Commercial and residential surveillance in Washington is legal. That said, documented video footage taken from residential and commercial units is still subject to Washington video surveillance laws and legal guidelines. While Washington allows the monitoring of condos, apartments, business offices, hotels, and more—including both interior and exterior of entities—the key term to remember is that these units are public places.
Because both residential and commercial video surveillance units are considered to be "public" spaces, no significant visual or audio privacy concerns come into play. However, as with residential surveillance, commercial video surveillance units must not be installed in locations that directly infringe upon other people’s reasonable privacy rights.
Similar to residential surveillance, Washington requires that video surveillance users post visible notice on and around camera units to signify they are in use. The same types of notice requirements apply to residential and commercial video surveillance: entities must post an Internet address for their privacy policy on or near all camera units, and cameras should be positioned in such a way that they are actively recording whenever any members of the public may come into contact with them.
Workplace Surveillance in the State of Washington
Even though Washington does not have any laws specifically governing video surveillance in a workplace, the Washington Supreme Court has determined that the practice requires notice to employees. Walsh v. TEI, Inc., 60 P.3d 59, 62 (2002) (following Carter v. Boenhke, 602 N.E.2d 794 (Ill. Ct. App. 1992)). The parties did not dispute that an employer had a privacy interest in the workplace, which was protected by state law. Upon that acknowledgment, the court turned to the question of "whether a business entity retains a privacy interest in its property . . . even though it has a legal right to search that property." Walsh, 60 P.3d at 62.
The Washington Supreme Court held that "[a]n employer may not deprive employees of their privacy interests in the workplace by evading the notice requirement through the use of cameras" and thus, where notice of video recording is required, mere knowledge of placement of cameras does not satisfy the notice requirement of Carter. Id. at 63. The London Fog test, discussed above, asks "If the contraband is in plain view, is there probable cause evidence hidden in the area covered by the scope of the search?" The Washington court viewed the notice requirement for employers as focusing on the first part of this scenario: whether, knowing where the cameras were, employees knew that something unlawful was being captured on film. In the Washington Supreme Court’s view, even public areas of a business can be protected by the privacy interest prevalent in a business, even where the cameras were easily discovered. Id. at 65. A business could create a space so private that departing from the notice requirement would create what the court called "ambiguity" in its ruling as to whether notice should still be allowed. Id. However, no such private spaces existed in this case, and so providing the notice under Carter was required.
While the Washington Supreme Court’s decision in Walsh provides some clarity concerning the notice requirement of video surveillance in workplaces, the question of whether that notice requirement is overcome under the privacy interests of a business remains unresolved. Washington courts have indicated that a business’s notice obligation is limited to "areas where expectation of privacy may reasonably be asserted," but the court has not yet defined the boundaries of this expectation. Id. at 66 (emphasis in original).
This applicable Washington case law should be incorporated into any of Washington’s industries – or any workplace – where video surveillance cameras are used in some capacity. All Washington businesses using video surveillance in some form should consider a policy or notice addressing use of surveillance cameras.
Video Recording Penalties
Violating video surveillance laws in Washington can lead to civil and, in some cases, criminal penalties. The severity of the consequences depends on the nature of the violation and whether the person or company responsible has a history of ignoring privacy laws.
Civil Lawsuits
If a business is caught unlawfully recording or displaying video surveillance footage, the owner or operator can be subject to civil liability under RCW 9.73.030. This statute states "Any person who, without first obtaining the written permission of the injured party, intentionally overhears or records by means of any device an especially sensitive conversation or activity, or who intentionally uses an device to enhance an overheard conversation or activity which is not conducted out in the open and is not typically audible beyond the confines of its immediate surroundings, is guilty of a gross misdemeanor." As a gross misdemeanor, the penalty for this crime is up to 364 days in jail and/or a $5,000 fine.
Fines and Penalties
In addition to the possibility of jail time or fines, Washington businesses that violate video surveillance laws are also in danger of being subjected to disgorgement of profits (forcing the responsible person in a business to hand over any money made from unlawful acts), and having to pay the victim’s legal fees.
Criminal Charges
If someone is caught illegally videotaping or taking pictures of someone else, the criminal charges associated with that conduct can vary. For instance, if the person was trespassing at the time that the illegal surveillance occurred, RCW 9A.52.070 – Criminal Trespass in the second degree could apply. This law defines criminal trespass as "knowingly enter[ing] or remain[ing] unlawfully in or upon real property, [or] tangible or intangible personal property" without permission. The penalty for this crime is a $1,000 fine and up to 90 days in jail.
Another potential criminal charge for violators is RCW 9.73.030(2)(b) – Unlawful Use of a Publicly Traveled Location for Surreptitious Photography . This law makes it a gross misdemeanor if anyone, to "harass, intimidate, or surveil another person" uses "a mirror, lens, scope, or other similar device, to perform surreptitious photography of another person in a place where the other person has a reasonable expectation of privacy."
Breach of privacy can also lead to the filing of misdemeanor charges against the person responsible (RCW 9A.44.115). This crime is punishable by up to 90 days in jail and/or a $1,000 fine.
For years, there have been numerous news stories involving business owners or employees being charged with unlawful video surveillance.
In 1994, in State of Washington v. Hinton, Mr. Hinton was charged with criminal trespass and voyeurism for entering the women’s bathroom of a restaurant without permission and videotaping women. At trial, Mr. Hinton argued that because he was invited into the bathroom, there was no criminal trespass. The case went up to the Washington Supreme Court, and the Court held that criminal trespass was not limited to actions that occurred outside of the property boundaries, but could include violations when the trespassing occurs within the interior of the property. Mr. Hinton was found guilty and sentenced to 90 days in jail, ordered to forfeit his recording equipment, and pay the victim’s attorney fees and costs.
Another criminal case that received a lot of media attention is Saldana v. Fleary, et al. Saldana was employed by HandyTV Inc., a company that provided at home video production services for families. During his employment, Mr. Saldana secretly recorded sex acts between himself and three different women while he worked for HandyTV. He was ultimately charged in Roseville County Superior Court with invasion of privacy, invasion of privacy by tuant, using a computer for an unlawful purpose, and two counts of felony stalking. On August 13, 2010, he received a sentence of 270 days in county jail and probation.
Other states have more strict penalties for video surveillance violations than Washington State, but by keeping to the rules set out in RCW 9.73.030, Orange County businesses can take advantage of video surveillance devices without worrying that they’re breaking the law.
How to Be Compliant
Best practices for keeping proper video surveillance settings are not always clear-cut, and having an expert on hand for consulting, and regular review is a good way to know you are properly in compliance. In addition, all public places should have clear signage that follows the rules set out above: disclaimers and no trespassing signs are advised. A video surveillance notice is recommended in Washington even if your recordings are not subject to the state’s privacy laws. While Washington does not have an obligation to sign videos, good practices include signage in addition to information on your text-based privacy policy page. Whether running a business or simply wanting to protect yourself, your family, property and/or clients, it is important to be mindful of the latest Washington state privacy policies, and not being witness to illegal or illicit behavior.
Surveillance Laws in the Future
As technology advances, so too will the laws governing its use. In Washington State, it is likely that video surveillance laws will continue to tighten as more people express concerns over online privacy. Similarly, as technology evolves, certain facets of the law may loosen. For example, smartphones have drastically increased in popularity over the past decade, and their capabilities have similarly expanded. Once thought of as communication devices and simple internet browsers, smartphones now house an astounding variety of applications, many of which gather information for the user. It is easy to imagine a near-future world wherein cellular phone service providers compile and store information pertaining to the whereabouts and habits of their owners. Although any such applications would likely require user consent, some may wonder whether such consent should be sufficient to circumvent the protections of video surveillance laws.
By contrast, there are numerous ways in which Washington State’s video surveillance laws may become more stringent. With the continued proliferation of smart doorbells, cameras disguised as everyday objects, and drones, officials may face more frequent challenges in regulating ever-easier methods of surveillance. Additionally, as facial recognition technology and other artificial intelligence systems rapidly advance, lawmakers will be faced with new and unique ethical challenges.
Where to Learn More
A number of government and non-governmental organizations provide information on surveillance laws. The Washington State Legislature provides access to all state laws. The Washington State Constitution is also available online for those interested in the source of statutory law.
The Washington Courts website provides free public access to legal resources, including appellate case law from the superior court through the Washington Supreme Court, helpful cases concerning video surveillance are Jones v. Toledo Hospital, 73 Wn.2d 454 (1967) (surveillance of surrounding area with remote control video for hidden switches for limited periods of time meets a standard of reasonable care), and Hegwine v. Longview School District No. 122, 162 Wn . 2d 538 (2007) (lack of notice of security cameras in school restrooms found to be negligent describes factors for reasonable expectations of privacy).
The Washington Attorney General’s Office provides review by subject areas including ‘privacy’ and ‘telecommunications’. Both sections provide information on video surveillance law and other privacy laws.
The Washington Privacy Coalition, a non-profit organization, offers articles focused on the importance of privacy, responsive approaches, and provides resources, an action center, and alerts to Washington residents.
Finally, the public library may provide more information about local laws such as city ordinances. Professional research services offer customized research and analysis of the law for a fee. Firms should check the backgrounds of these professionals before hiring them.