State v. Townsend , 147 Wash. 2d 666 ( 2002 )

Sanders, J.

(dissenting) — The majority engrafts by inference an unstated consent exception to Washington’s privacy act (“one of the most restrictive in the nation,” majority at 672); and then implies consent to satisfy the inferred exception (majority at 676). Inference plus implication equals loss of privacy.

The fact of the matter is Townsend did not actually consent to recording his private ICQ messages and, unlike e-mail, he had no reason to believe these particular ICQ messages would necessarily be recorded prior to viewing by the intended recipient. The most that can be said is that the extremely technologically astute communicator might be aware that under some circumstances the ICQ message might be recorded. See majority at 676. But that isn’t enough.

Although the majority refuses to be bound by our holding previously expressed in State v. Faford, 128 Wn.2d 476, 485, 910 P.2d 447 (1996), that “the mere possibility that intrusion on otherwise private activities is technologically feasible” does not equate to consent for that to happen (majority at 678), it does not overrule Faford. Nor does it convincingly distinguish it by merely attempting to differentiate between recording by the intended recipient and recording by a third person. I see no such distinction in the statute. The statute prohibits recording by either.

Likewise, the distinction made by the concurring opinion is also not found in the statute. According to the concurrence, the privacy act applies only to communications recorded on a device different from the device used to communicate. Concurrence at 680, 683. To the contrary, RCW 9.73.030 prohibits any recording of private communications “by any device electronic or otherwise designed to record and/or transmit said communication.” (Emphasis added.) To that extent, I agree with the majority and Court of Appeals. See majority at 674; State v. Townsend, 105 Wn. App. 622, 628, 20 P.3d 1027 (2001) (noting the kind of distinction made by the concurrence is one “without a legal difference”).⁵

The majority is simply rewriting the statute to allow invasions of privacy when it is the State in a criminal investigation that does the invading. But protection of our privacy from the government is an important reason the legislature enacted this statute. So too, the “possibility” that the state may invade our privacy, a possibility that this majority opinion makes more probable, is hardly a legal justification for the unlawful practice to continue nor adequate grounds to conclude one has “consented” to the very invasion which the statute is designed to prohibit.

“We recognize as technology races ahead with ever increasing speed, our subjective expectations of privacy may be unconsciously altered. Our right to privacy may be eroded without our awareness, much less our consent. We believe our legal right to privacy should reflect thoughtful and purposeful choices rather than simply mirror the current state of the commercial technology industry.”

Faford, 128 Wn.2d at 485 (quoting State v. Young, 123 Wn.2d 173, 184, 867 P.2d 593 (1994)).

Accordingly I dissent.

5 I also note the concurring opinion’s reliance on legislative history. According to the concurrence, RCW 9.73.030 was intended to prohibit only surreptitious recording of communications by some affirmative action. Concurrence at 683. The plain language of the statute makes no such limitation. In support, the concurrence relies on legislative history from 1967. Id. at 681, 683. Putting aside the fact that electronic communication, such as e-mail or ICQ, hardly could have been on the minds of legislators decades before such forms of communications were available to the public, resort to legislative history is appropriate only if the statute in question is ambiguous. Cherry v. Mun. of Metro. Seattle, 116 Wn.2d 794, 799, 808 P.2d 746 (1991). Since RCW 9.73.030 is not ambiguous, nor does the concurrence claim it is, the plain language of the statute controls. Parkhurst v. City of Everett, 51 Wn.2d 292, 294, 318 P.2d 327 (1957) (“If the words employed in the declaring part of a statute be plain, unambiguous, and well understood according to their natural and ordinary sense and meaning, the statute furnishes a rule of construction beyond which a court cannot go.”) (citing Tsutakawa v. Kumamoto, 53 Wash. 231, 101 P. 869, 102 P. 766 (1909)); Shelton Hotel Co. v. Bates, 4 Wn.2d 498, 507, 104 P.2d 478 (1940). I would therefore not further infringe our privacy protections by requiring those whose private communications have been wrongfully intercepted to establish such was the result of some “affirmative action.”