AN ACT Relating to authorizing interception and recording of conversations concerning illegal controlled substances; amending RCW 9.73.080; reenacting and amending RCW 9.73.030; adding new sections to chapter 9.73 RCW; creating new sections; and repealing RCW 9.73.050.

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 unlawful 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:

(1) Any information obtained in violation of RCW 9.73.030 or pursuant to an order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except:

(a) For the limited purpose of allowing any person who did not consent to the recording to impeach a witness in any criminal case involving the unlawful 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;

(b) With the permission of the person whose communication or conversation was recorded without his or her knowledge; or

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

(2) 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:

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

(a) Before a conversation or communication is recorded, the police commander or an officer above the rank of first line supervisor shall complete a written authorization showing: (i) The date and time the authorization is given; (ii) the persons, including the consenting party, expected to participate in the conversation or communication, if known; (iii) the expected date, location, and approximate time of the conversation or communication; and (iv) the reasons for believing the recording will be of value;

(b) Within ten judicial days of an authorized recording obtained under (a) of this subsection, the written authorization and recording shall be reviewed ex parte by a district court judge or magistrate for compliance with (a) of this subsection. If the court determines that the recording has not been obtained in compliance with (a) of this subsection, the court shall (i) order the recording and any copies or transcriptions thereof to be sealed and not to be unsealed or disclosed except upon court order; and (ii) shall notify the prosecutor or attorney general to determine if a violation of RCW 9.73.030 has occurred; and

(c) If the court determines that the recording has been obtained in compliance with (a) of this subsection, the recording shall be delivered to the prosecutor or attorney general. If the recording is deemed to be without value by the prosecutor or attorney general in a prosecution for the unlawful manufacture, delivery, sale, or possession with intent 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 and any copies or transcriptions thereof shall be sealed and may not be unsealed or disclosed except upon court order. If the recording has not been ordered by a court to be unsealed, it and any copies or transcriptions thereof shall, three years after its making, be erased or destroyed without being transcribed.

(2) This section shall expire June 30, 1991.

Sec. 4. Section 6, chapter 93, Laws of 1967 ex. sess. and RCW 9.73.080 are each amended to read as follows:

Any person who shall violate RCW 9.73.030 or section 3 of this 1989 act shall be guilty of a gross misdemeanor.

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. Before the 1990 legislative session, the senate and house of representatives judiciary committees shall conduct a review of chapter 9.73 RCW. The objective of the review is to determine how best to address the needs of law enforcement and public safety and the citizens' expectations of privacy with respect to the interception or recording of private communications, and to consider other changes to the statute, particularly in view of technological changes in the field of communications.

NEW SECTION. Sec. 7. The chief of the Washington state patrol shall submit a report on January 1, 1990, and on January 1, 1991, to the judiciary committees of the house of representatives and the senate on conversations and communications recorded under RCW 9.73.030(2)(e). The report shall include, but not be limited to:

(1) The number of recordings made;

(2) The circumstances justifying the recording;

(3) The types and categories of alleged criminal activity;

(4) The number of recordings used in criminal prosecutions;

(5) The number of recordings not used in criminal prosecutions and the reasons for the nonuse;

(6) The number of persons subjected to multiple recordings; and

(7) the number of recordings determined by a magistrate or judge not to be in compliance with section 3(1)(a) of this act.

Information regarding any conversation or communication that is recorded under RCW 9.73.030(2)(e) shall be forwarded to the chief of the state patrol on forms developed and supplied by the state patrol.

The transmittal of information and the report shall protect the privacy of any person whose conversation or communication has been recorded under RCW 9.73.030(2)(e).