AN ACT Relating to the interception of telephone communications; amending RCW 9.73.060 and 9.73.070; and adding a new section to chapter 9.73 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 4, chapter 93, Laws of 1967 ex. sess. as amended by section 2, chapter 363, Laws of 1977 ex. sess. and RCW 9.73.060 are each amended to read as follows:

Any ((~~person~~)) individual, partnership, corporation, association, or the state of Washington, its agencies and political subdivisions who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter shall be subject to ((legal action for damages, to be brought by any other person claiming that a violation of this statute has injured his business, his person, or his reputation. A person so injured shall be entitled to)) a civil cause of action for invasion of privacy. In any such action, the victim of the invasion of privacy may be awarded:

(1) A penalty in the amount of one thousand dollars to be awarded in addition to any award of actual damages, including mental pain and suffering endured by him or her on account of violation of the provisions of this chapter((,)); or

(2) Liquidated damages computed at the rate of ((~~one~~)) five hundred dollars a day for each day of violation, ((~~not to exceed one thousand dollars,~~)); and

(3) A reasonable attorney's fee and other costs of litigation.

Sec. 2. Section 5, chapter 93, Laws of 1967 ex. sess. and RCW 9.73.070 are each amended to read as follows:

With the exception of section 3 of this 1986 act, the provisions of this chapter shall not apply to any activity of a common carrier in connection with services provided by ((~~a common~~)) the carrier pursuant to its tariffs on file with the Washington utilities and transportation commission or the Federal Communication Commission and any activity of any officer, agent or employee of a common carrier who performs any act otherwise prohibited by this law in the construction, maintenance, repair and operations of the common carrier's communications services, facilities, or equipment or incident to the use of such services, facilities or equipment. Common carrier as used in this section means any person engaged as a common carrier or public service company for hire in intrastate, interstate or foreign communication by wire or radio or in intrastate, interstate or foreign radio transmission of energy.

NEW SECTION. Sec. 3. A new section is added to chapter 9.73 RCW to read as follows:

The use of any device to intercept a telephone communication in the ordinary course of business is prohibited by this chapter unless all of the following are met:

(1) The interception is performed solely for the purpose of assuring quality business service in connection with the legitimate business activity. For the purposes of this subsection, "assuring quality business service" means that the business has prepared documentation of the need for interception of private business communications, a discussion of alternatives to such interception and reasons for rejecting the alternatives, a description of intended and actual use of devices capable of interception, and of procedures to be used to ensure that such interception is strictly limited to the lawful use authorized in this chapter. The business shall file notice with the Washington state utilities and transportation commission stating that the documentation is available to any person upon request, and providing the document title or identifying number and the address from which the document may be obtained. The commission shall periodically publish a list of businesses filing notice under this subsection.

(2) The business has notified participants to the telephone communication of the potential for interception through one of the following:

(a) A recorded announcement or live operator is used to inform the participants prior to commencement of the communication that the communication might be intercepted;

(b) Throughout the period of a monitored call there is a distinct warning signal or beep tone, clearly audible to each participant to the communication at fifteen second intervals; or

(c) (i) The business limits interception to interception in response to specific complaints related to an employee's performance in the conduct of the business or to periods in which employees subject to interception are being trained or evaluated, which periods shall be limited to no more than ten consecutive work days not to exceed thirty work days in any twelve-month period for any employee. The employee subject to training or evaluation periods shall receive notice in writing of the starting and ending dates of such periods prior to the commencement of telephone interception. The notice shall include a listing of telephones available to the employee during the training or evaluation period that are not subject to telephone interception; and

(ii) The business indicates in all periodic mailings to known consumers, in telephone directory advertising and in sales catalogues or other similar business publications that interception of business telephone communications may occur. Every such notice shall include, at a minimum, the following statement in at least ten point type: This business uses telephone equipment that enables it to listen in on telephone conversations between its employees and the public. This notice is required by law.

For the purposes of this section:

"Telephone communication" includes all communication transmitted via telephone by whatever means other than by means of radio frequency, but excludes transmission of data.

"Device" includes any device, including an extension telephone, capable of intercepting a communication and of being used to listen to, transmit and/or record the communication.

This section shall not apply to those situations described in RCW 9.73.030(2), nor to those police and fire activities described in RCW 9.73.090. This section shall not be construed to permit activities prohibited by other sections of this chapter.