You Know More Than You Think: State v. Towns End, Imputed Knowledge, and Implied Consent Under the Washington Privacy Act

• Publication year: 2004
• Citation: Vol. 28 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 1FALL 2004

NOTE

You Know More Than You Think: State v. Townsend, Imputed Knowledge, and Implied Consent Under the Washington Privacy Act

James A. Pautler(fn*)

I. Introduction

The Washington Privacy Act(fn1) ("WPA") was probably the last thing on Donald Townsend's mind in May 1999 as he attempted to arrange a sexual liaison with "Amber," whom he thought was a thirteen year-old girl.(fn2) Using Internet-based e-mail and ICQ,(fn3) Townsend sent increasingly graphic messages to Amber indicating his desire to have sex with her.(fn4) Unbeknownst to Townsend, Amber was actually a Spokane County police detective, Jerry Keller, who had been alerted to Townsend's proclivities by an informant.(fn5) During May and June 1999, Townsend and Amber exchanged numerous e-mails and ICQ messages that Detective Keller stored on his computer so he could "read the messages at his leisure and print them for later use as evidence."(fn6) Ultimately, Townsend scheduled a rendezvous with Amber at a Spokane area hotel, where Detective Keller arrested Townsend.(fn7)

Townsend was charged in state court with attempted second-degree rape of a child.(fn8) Other than his physical presence at the hotel, most of the evidence against Townsend consisted of print-outs of the messages that Detective Keller had downloaded and saved on his computer.(fn9)

Under Washington law, the recording of a private conversation is illegal unless all the participants consent.(fn10) Evidence obtained in violation of the all-party consent rule is inadmissible in a civil or criminal case.(fn11) Because of the similarity between Keller's act of saving the Internet communications to his computer, and of unlawfully recording private conversations, Townsend moved to exclude the evidence obtained from these recordings.(fn12) The court denied Townsend's motion in a memorandum decision that later was incorporated into formal findings of fact and conclusions of law.(fn13) The court then found Townsend guilty after a bench trial.(fn14) Townsend timely appealed and the court of appeals affirmed the trial court's decision.(fn15) The Washington Supreme Court granted certiorari.(fn16) In an en banc decision with three opinions, the court held that Townsend's e-mail and ICQ messages were admissible because Townsend had impliedly consented to their recording.(fn17)

The court decided Townsend wrongly. As Washington is one of only twelve states that require the consent of all parties prior to the recording of a private conversation,(fn18) the Townsend decision was inconsistent with the majority of Washington Supreme Court decisions that have strongly supported the protections of the WPA.(fn19) Most striking, however, was the court's faulty reasoning. By combining an incorrect understanding of computer technology with a factually unsupported inference, the court concluded that Donald Townsend impliedly consented to the recording of his messages.

Townsend is worth examining for two additional reasons. First, Townsend illustrates the palpable need for the legislature to update the WPA. The underlying problem in Townsend was the application of a statute that was written in the era of rotary telephones to the issues that arise in modern electronic communications. Because of the inherent differences between electronic and traditional media, novel questions invariably arise that cannot be readily answered by resorting to existing doctrines.(fn20) Finally, the plain language of the current statute has absurd results when applied to the modern infrastructure of the Internet.

Part II of this Note discusses the historical background of privacy as it relates to communications technologies, how this historical background has informed the evolution of the WPA, and how Washington courts have interpreted the WPA. Part III presents the facts of Townsend, a discussion of the court's analysis, and an examination of the resulting fallout. Part IV concludes with several suggestions for reform of the WPA.

II. The Background of Privacy

Privacy is at the very soul of being human.(fn21) Privacy, or the Right to Be Let Alone, is perhaps the most personal of all legal principles.(fn22) Although some argue that privacy is a product of modern culture,(fn23) legal rights to privacy appeared 2000 years ago in Jewish laws.(fn24) The Talmud explains that "a person's neighbor should not peer or look into his house."(fn25) There are nearly as many definitions of privacy as there are scholars who have written about the topic.(fn26) The elements of privacy have been said to include seclusion, informational control, and autonomy of personal life(fn27) Privacy also comprises secrecy, anonymity, and solitude.(fn28) "Most scholars view privacy as a concept pertaining to the individual."(fn29) However, privacy also promotes culturally desirable attributes such as a healthy, liberal, democratic, and pluralistic society.(fn30) The forces within society that lead to the invasion of privacy are just as powerful. These include our innate curiosity about others, social control, and the desire to gain an economic or social advantage.(fn31) Eavesdropping statutes, such as the WPA, generally address an individual's desire to control information about themselves, and to preserve whatever degree of seclusion they might desire.(fn32) Privacy statutes counterbalance our societal desire to hunt out and punish non-conforming behavior.(fn33)

The balance of Part II will provide context for the court's analysis in Townsend. Subpart A will discuss how privacy has been analyzed under the United States Constitution in the face of evolving technology. Subpart B will discuss the question of one-party versus all-party consent. Subpart C will discuss privacy in Washington, including the evolution of the WPA. Subpart D is a review of court holdings that have interpreted the WPA.

A. The Evolution of Technology and Eavesdropping Under

the Federal Constitution

Prior to the American Revolution, British soldiers and customs agents entered homes and offices at will and searched any person or place they wished.(fn34) This practice was so resented that Sam Adams said that he regarded the unrest over general searches "as the Commencement of the Controversy between Great Britain and America."(fn35) The value of security in the sanctity of one's home is not only fundamental to our way of thinking, but the Fourth Amendment(fn36) codification of this right distinguishes America from the rest of the world. Our nation began not only by inventing a new form of government but also by declaring that one purpose of government was the protection of individual rights.(fn37) "To secure these rights," wrote Thomas Jefferson, "governments are instituted among men."(fn38)

Although privacy is fundamental, our conception of whether we are entitled to statutory protection has evolved over time.(fn39) The courts have redefined our conception of privacy as technology has changed the way we communicate.(fn40) In fact, technology is continually diminishing an individual's actual privacy.(fn41) Prior to the invention of telephones, computers, bugs, wiretaps, laser interferometers, and thermal imaging, one could simply stroll out of earshot of others to communicate confidential information.(fn42) Eavesdropping(fn43) was a risky business, punished by the colonists through the application of English common law.(fn44) Other than clandestinely listening in on a conversation, the only other way to obtain intelligence was through the use of a spy. Either way, someone who wanted to keep a conversation private could exercise a substantial degree of control over exposure of the conversation. Secret conversations could be held where no one else could hear them. Suspected spies could be dealt with harshly. However, as technology changed the way we communicate, each new mode of communicating private information has given rise to a new way of intercepting the information.(fn45) Unfortunately, statutory protection against unwanted intrusion has lagged well behind adoption of invasive technologies.(fn46)

For example, today we take it for granted that the contents of a first-class envelope are private. Although a postal delivery system has existed since the beginning of our nation's history, it took a United States Supreme Court decision in 1878, Ex parte Jackson,(fn47) to hold that the government could not open first-class mail without a search warrant.

More closely related to Internet communications, the courts were just as sluggish in recognizing a privacy right in telephone conversations. Fifty years after the introduction of the telephone, the Court declined to extend Fourth Amendment protection to telephone conversations.(fn48) In Olmstead v. United States, a Seattle-based bootlegger was convicted using evidence derived from several telephone wiretaps placed by federal prohibition agents.(fn49) The government tapped eight residential and business telephones and compiled 775 pages of notes.(fn50) The Court reasoned that no constitutional violation had taken place since nothing material was searched, such as "the house, his papers, or his effects."(fn51) The Court justified this outcome by stating that the phone lines were not part of a person's house, any more than "the highways along which they are stretched."(fn52)

Of the four dissents in Olmstead, the following...