AN ACT Relating to criminal activity; amending RCW 9.73.090; reenacting and amending RCW 9.73.030; adding new sections to chapter 9.73 RCW; repealing RCW 9.73.050; providing an effective date; and declaring an emergency.

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

Sec. 1. Section 1, chapter 93, Laws of 1967 ex. sess. as last amended by section 2, chapter 260, Laws of 1985 and by section 1, chapter 38, Laws of 1986 and RCW 9.73.030 are each reenacted and amended to read as follows:

(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept((,)) or record any:

(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;

(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.

(2) Notwithstanding subsection (1) of this section, ((~~wire~~)) communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster((~~, or~~)); (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands((~~, or~~)); (c) which occur anonymously or repeatedly or at an extremely inconvenient hour((~~, or~~)); (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues((,)); or (e) concerning the manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell, controlled substances as defined in chapter 69.50 RCW, or legend drugs as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW; may be recorded with the consent of one party to the conversation.

(3) 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.

(4) An employee of any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full time or contractual or part time basis, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers. Withdrawal of the consent after the communication has been made shall not prohibit any such employee of a newspaper, magazine, wire service, or radio or television station from divulging the communication or conversation.

NEW SECTION. Sec. 2. A new section is added to chapter 9.73 RCW to read as follows:

Any information obtained in violation of RCW 9.73.030 or pursuant to an order issued under RCW 9.73.040 shall be inadmissible, except:

(1) For the limited purpose of impeaching any witness in any case;

(2) With the permission of the person whose rights were violated; or

(3) In a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.

Nothing in this section, however, bars the admission of testimony of a participant in the communication or conversation unaided by information obtained in violation of RCW 9.73.030.

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

The exception provided for in RCW 9.73.030(2)(e) is subject to the following restrictions:

(1) Before a conversation or communication is recorded, the law enforcement agency director, or his or her designee shall complete a written authorization showing: The date and time the recording is authorized, the other person or persons expected to participate in the conversation or communication, if known, the location where the conversation or communication is expected to take place, and the reasons for believing the recording will be of value; and

(2) Within two business days of an authorized recording obtained under subsection (1) of this section, the recording shall be reviewed by the law enforcement agency director or his or her designee and, if the recording is deemed to be without value in a prosecution for the manufacture, delivery, sale, or possession to manufacture, deliver, or sell, controlled substances as defined in chapter 69.50 RCW, legend drugs as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW, the recording shall be sealed and may not be unsealed except upon court order. If the recording has not been ordered by a court to be unsealed, the law enforcement agency director or his or her designee shall, three years after the recording was made, order it to be erased or destroyed without being transcribed.

Sec. 4. Section 1, chapter 48, Laws of 1970 ex. sess. as last amended by section 2, chapter 38, Laws of 1986 and RCW 9.73.090 are each amended to read as follows:

(1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police, fire, emergency medical service, emergency communication center, and poison center personnel in the following instances:

(a) Recording incoming telephone calls to police and fire stations, licensed emergency medical service providers, emergency communication centers, and poison centers;

(b) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:

(i) The arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording;

(ii) The recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof;

(iii) At the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording;

(iv) The recordings shall only be used for valid police or court activities.

(2) It shall not be unlawful for a law enforcement officer acting in the performance of the officer's official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication or conversation or one of the parties to the communication or conversation has given prior consent to the interception, recording, or disclosure: PROVIDED, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic authorization from a judge or magistrate, who shall approve the interception, recording, or disclosure of communications or conversations with a nonconsenting party for a reasonable and specified period of time, if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony: PROVIDED HOWEVER, That if such authorization is given by telephone the authorization and officer's statement justifying such authorization must be electronically recorded by the judge or magistrate on a recording device in the custody of the judge or magistrate at the time transmitted and the recording shall be retained in the court records and reduced to writing as soon as possible thereafter.

Any recording or interception of a communication or conversation incident to a lawfully recorded or intercepted communication or conversation pursuant to this subsection shall be lawful and may be divulged.

All recordings of communications or conversations made pursuant to this subsection shall be retained for as long as any crime may be charged based on the events or communications or conversations recorded.

(3) Communications or conversations authorized to be intercepted, recorded, or disclosed by this section shall not be inadmissible under ((~~RCW 9.73.050~~)) section 2 of this 1989 act.

(4) Authorizations issued under this section shall be effective for not more than seven days, after which period the issuing authority may upon application of the officer who secured the original authorization renew or continue the authorization for an additional period not to exceed seven days.

NEW SECTION. Sec. 5. Section 3, chapter 93, Laws of 1967 ex. sess. and RCW 9.73.050 are each repealed.

NEW SECTION. Sec. 6. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 7. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect July 1, 1989.