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In the context of an in-person conversation in the State of Washington (a two-party state), an online reference states:

Whether a conversation or other communications is "private" depends on a number of case-specific factors, such as the subjective intention of the parties, the reasonableness of their expectation that the conversation would be private, the location of the conversation, and whether third parties were present.

Suppose the location was your desk at work, and a co-worker came up and propositioned you. Further suppose that though this is in the midst of a cubicle farm nobody else was in earshot.

Would it be legal to record such a conversation at your workplace without getting the consent of the co-worker?

I can't tell from this as it seems to me: a) The subjective intention of the co-worker would probably be that the conversation was private; b) the lack of other people within earshot might have provided the co-worker with the expectation the conversation would be private; but on the other hand, c) at that location you would not expect privacy.

(I will accept as valid, BTW, an answer pointing me to reasonably authoritative documentation, up to and including court cases on point. I was unable to find it: Stuff I found was all in the context of telephone conversations (i.e. not in-person) or public hearings or being a journalist.)

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A reasonably analogous case is State v. Kipp, 179 Wn.2d 718. The court held that a secret recording was illegal, and the recording was of a face to face recording, using a cassette recorder. The court provides an analysis of the meaning of "private" under RCW 9.73.030, and concludes that "A communication is private (1) when parties manifest a subjective intention that it be private and (2) where that expectation is reasonable" (with appropriate in-state citations). They say that

Factors bearing on the reasonableness of the privacy expectation include the duration and subject matter of the communication, the location of the communication and the presence or potential presence of third parties, and the role of the nonconsenting party and his or her relationship to the consenting party. Ultimately, the intent or reasonable expectations of the participants as manifested by the facts and circumstances of each case controls as to whether a conversation is private

but in this case,

Kipp manifested a subjective intention that the conversation be private. We have found subjective intent that a conversation be private even though the party does not explicitly state such an intention

The court in fact rejects the state's contention that

a person who confesses to child molestation should expect this information to be reported to the authorities, and therefore it is unreasonable to expect the conversation to remain private

and the court reaffirms that

the subject matter of the conversation in this case was not one that is normally intended to be public, demonstrating Kipp's reasonable expectation of privacy.

  • Interesting! Tthe law (RCW 9.73.030 which you referenced) has an exception for conversations "(b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands". In this case the conversation was about unlawful activity - but the petitioner (who was recorded without his consent) was talking about unlawful activity but apparently didn't make an unlawful request or demand of the party who was doing the recording! Thus the exception wasn't triggered. I'm not yet accepting this answer because this conversation was in a home, not a workplace. But, thank you! – davidbak Oct 6 '18 at 6:31

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