1. Recordings of Sexual Harassment or a Hostile Work Environment Can Be Crucial

At McHugh Law, we are always looking for ways to catch harassers “red-handed” or in the act of harassing. Text messages, emails, videos, photos, and other “receipts” are crucial to catching sexual harassment or a hostile work environment. Although your memory and testimony alone is evidence of sexual harassment, it usually takes more to convince a judge or a jury that you were being harassed in the workplace. Additionally, most harassers are smart, and will wait until they are alone with you, or have you isolated until they say and do the worst things to you. Therefore, making recordings of your harasser can be one of the only ways to document the harassment as it happens.

As a famous example, Gretchen Carlson, a reporter for Fox News filed a sexual harassment lawsuit against Fox News and its CEO at the time, Roger Ailes. One of the reasons why Ms. Carlson’s suit was so successful and why she was able to garner a multi-million-dollar settlement was because of evidence she preserved, most notably the secret conversations that she was able to record with Roger Ailes while they were alone. 

As another example, in a criminal case against now disgraced Hollywood producer Harvey Weinstein, police were able to record private conversations between Mr. Weinstein and model Ambra Battilana Gutierrez, as Weistein harassed Guitierrez and attempt to coerce her into his hotel room and apparently admitted to assaulting her.

These are courageous acts by women to catch their harassers in the act to be able to prove it later, and in a court of law if necessary. But legally, what can a victim in Washington do to catch their harasser in the act and be able to use this evidence in Court?

3. What if I tell the other party that I am recording?

One of the easiest ways to be able to record your harasser is to inform them that you are recording. Obviously, you lose the element of surprise with the harasser, and often they will be on their best behavior. But sometimes, you can still catch your harasser in the act, despite informing them of your recording. Therefore, if you announce that you are recording, the other side consents, and you catch the harasser in the act, the recording is likely legal, and potentially usable in court, such as in a sexual harassment case. The law specifically states the following:

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…

See RCW 9.73.030(3). Moreover, “[a] party is deemed to have consented to a communication being recorded when another party has announced in an effective manner that the conversation would be recorded.” State v. Townsend, 147 Wn.2d 666, 675, 57 P.3d 255 (2002) (citing RCW 9.73.303(3)). Additionally, “a communicating party will be deemed to have consented to having his or her communication recorded when the party knows that the messages will be recorded.” Townsend, 147 Wn.2d at 675.

In Ptah, Ptah moved to admit the content of eight telephone calls he recorded from his cell phone. See State v. Ptah, No. 78978-3-I (Wash. Ct. App. June 1, 2020). Seven of the calls involved Seymour. Ptah claimed that he announced to Seymour in an effective manner that he recorded all of their telephone calls. He pointed to one recording of a call with Seymour in which he complained about a conversation he had with his son’s mother as evidence that Seymour consented. In that call, he told Seymour to “`hear this conversation'” with his son’s mother and then said, “`You know my phone records everything.'” Seymour replied, “`Ah, shit.'” However, during a defense interview, Seymour explained that she thought Ptah’s comment about recording calls on his phone referred to only his conversations with his son’s mother. The court concluded that she was not aware that Ptah recorded her conversations with him as well, and decided that Ptah failed to establish that Seymour consented to the recording of her conversations. The court held that Ptah’s comment to Seymour in the context of a contentious conversation with his son’s mother was not an “effective announcement that he recorded all calls with Seymour. RCW 9.73.030(3); Townsend, 147 Wn.2d at 675. And the undisputed evidence showed that Seymour did not know that Ptah recorded their calls. Townsend, 147 Wn.2d at 675. The court concluded that because Seymour did not consent to the recordings, they were inadmissible under RCW 9.73.050.

Therefore, the easiest way to get consent is to clearly inform the other party and continue to record. If there is a meeting that was scheduled that you think you should record, ask the employer in writing if you can record the conversation. Obviously, you likely won’t be able to catch your harasser doing much, because they will try to hide their behavior. But this is just one way, and there are other ways to keep the element of surprise.

4. What counts as a “private” or “secret” conversation? What counts as “consent”?

Under the Privacy Law, at first blush, it is presumed that conversations between two parties intend their communications to be private. Roden, 179 Wn.2d at 900 (citing State v. Modica, 164 Wn.2d 83, 89, 186 P.3d 1062 (2008)). But a communicating party impliedly consents to recording a private conversation when the party uses a device he knows records data. State v. Racus, 7 Wn. App. 2d 287, 299, 433 P.3d 830 (citing Townsend, 147 Wn.2d at 672), review denied, 193 Wn.2d 1014, 441 P.3d 828 (2019).

Under Washington law, communication is private when parties manifest a subjective intention that it be private and where that expectation is reasonable. State v. Kipp, 179 Wash.2d 718, 729, 317 P.3d 1029 (2014). Proof of subjective intent need not be explicit. Id. at 729. When analyzing alleged violations of the Privacy Law, courts consider (1) whether there was a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit, and (4) was done without the consent of all parties to the private communication. State v. Townsend, 147 Wash.2d 666, 672-75, 57 P.3d 255 (2002).

The Privacy Law does not define “private” but the courts have adopted a dictionary definition, stating: “`belonging to oneself … SECRET … intended only for the persons involved (a = conversation) … holding a confidential relationship to something… a secret message: a private communication… SECRETLY: not open or in public.'” Kipp, 179 Wash.2d at 729, 317 P.3d 1029

In Racus, text messages were being recorded by a third party, the police, on a computer, while Racus thought he was just texting “Kristl”. The court noted, that:

Racus thought he was texting “Kristl.” He manifested his subjective intent that the text messages would remain private by not using a group texting function, or indicating in any other manner that he intended to expose his communications to anyone other than “Kristl.” The expectation that these were private communications was reasonable given that Racus was only texting with “Kristl” and only “Kristl” was texting him back. Because he intended that the communications be kept private and his expectation that they were private communications was reasonable, the communications were private under the WPA.

See State v. Racus, 433 P.3d 830, 836 7 Wn. App. 2d 287 (Div. II, 2019). (Internal citations omitted). Therefore, consent can be implied by the circumstances, if the person being recorded has a reasonable expectation that the conversation will be recorded. For example, a person consents when they explicitly announce their intention to engage in the communication, as discussed above. RCW 9.73.030(3). But a person also consents by choosing to communicate through a device in which the person knows the information will be recorded. State v. Racus, 7 Wash. App. 2d 287, 299-300, 433 P.3d 830, review denied, 193 Wash.2d 1014, 441 P.3d 828 (2019). When a person sends e-mail or text messages they do so with the understanding that the messages would be available to the receiving party for reading or printing. Racus, 7 Wash. App. 2d at 299, 433 P.3d 830.

For example, in Townsend, the police recorded and tracked a defendant’s e-mail and instant messages to a fictitious adolescent girl that police created for a sting operation. . State v. Townsend, 147 Wash.2d 666, 670, 57 P.3d 255 (2002) The Washington Supreme Court held that although the defendant did not explicitly announce that he consented to the recording of his e-mail and instant messages to his fictitious target, his consent to such recordings could be “implied.”

[b]ecause [the defendant], as a user of email had to understand that computers are, among other things, a message recording device and that his e-mail messages would be recorded on the computer of the person to whom the message was sent, he is properly deemed to have consented to the recording of those messages.

Id. at 676. The court noted that “the saving of messages is inherent in e-mail and … messaging” and through his use and familiarity of such systems, the defendant had impliedly consented to the recording of such messages. Id. at 678. Therefore, in the instance of text or email, it is likely that the harasser has implictly “consented” because they have reasonable expectation that their conversation is being recorded, and therefore their consent is “implied”.

Even in a situation where the person that was being recorded used passwords and encryption software, the court will still conclude that emails, text messages, and other electronic data is not private. State v. Canter, 487 P.3d 916 (Ct. App. 2021). In Canter, the person being recorded had secured several devices by passcodes and encryption software, so officers were unable to recover the text or e-mail conversations from them. However, the court concluded that despite the passcodes and software, that he “had to understand that messages he sent from his laptop or cell phone to another similar device would be recorded.” The Court ruled that using “passcodes and encryption software to protect recorded data on his devices corroborate[d] his knowledge” and by “using messaging devices that necessarily record data, Canter implicitly consented to the recording of his conversations.”

Therefore, it may be possible to record text messages, emails, or other written communication where, according to Washington law, there is no expectation of privacy or where consent to record is implied.

CONCLUSION

Consult with Colin F. McHugh, Our Experienced Vancouver Washington Employment Attorney About Your Workplace Sexual Harassment Today!

As you can see in the above discussion, in some circumstances, if the person consents to a recording, if the conversation is not “private” or if the recordings are of someone conveying threats of bodily harm or something similar, it is possible that the recordings can be legal and admissible in court.

Before you record your harasser, be sure to consult with an attorney, although there are exceptions to the rule, improperly recording someone without their knowledge or consent can be held against you as a violation of criminal law.

Colin F. McHugh is an employment lawyer in Vancouver, WA and has represented hundreds of employees against their employers, including in sexual harassment cases, employment discrimination cases, and in many other contexts. If you are concerned about an issue at work, feel free to reach out to his office and fill out an intake questionnaire today.

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