State v. Townsend
147 Wash. 2d 666, 57 P.3d 255 (2002)
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Rule of Law:
Under Washington’s privacy act (RCW 9.73), implied consent to the recording of private electronic communications can be found when the user understands the inherent recording function of the technology or is warned by the software’s privacy policy that messages may be recorded, making such recordings admissible as evidence.
Facts:
- A citizen informant alerted Detective Jerry Keller of the Spokane Police Department that Donald Townsend was attempting to use his computer to arrange sexual liaisons with young girls.
- Detective Keller established a “Hotmail” Internet e-mail account using the screen name “ambergirl87,” posing as a fictitious 13-year-old girl, as part of a sting operation.
- Beginning in May 1999, Donald Townsend, using the screen name “Big Red” and identifying himself as Donald Townsend, corresponded with Amber via e-mail, which Detective Keller's computer automatically stored and printed.
- Townsend’s e-mail communications contained overtures for a meeting with Amber, indications he wanted to “have fun” with her, and a request for Amber not to “tell anyone about us.”
- At Townsend’s suggestion, Detective Keller created an ICQ account for Amber on June 1, 1999; Keller's ICQ program was set to automatically record incoming messages.
- Townsend and Amber engaged in graphic ICQ discussions about sexual topics, including sexual intercourse, and Townsend arranged to meet Amber at a Spokane motel room on June 4, 1999.
- The night before and an hour before the scheduled meeting, Townsend sent ICQ messages to Amber stating his intent to have sex with her the following day.
- Donald Townsend went to the motel at the appointed time, knocked on the door of the room where he believed Amber was, and was arrested by Detective Keller, later admitting he left his apartment intending to have sex with Amber but “changed his mind.”
Procedural Posture:
- Donald Townsend was charged in Spokane County Superior Court (trial court/court of first instance) with attempted second-degree rape of a child.
- Before trial, Townsend moved to dismiss the charge, arguing that Detective Keller's recording and printing of his communications violated Washington’s privacy act.
- The superior court denied Townsend's motion to dismiss.
- After a bench trial, Townsend was found guilty of the charged offense in superior court.
- Townsend appealed his conviction to Division Three of the Washington Court of Appeals (intermediate appellate court).
- The Court of Appeals affirmed Townsend's conviction, concluding that his communications were private and recorded by a device but that he had impliedly consented to the recordings, and rejecting his factual impossibility defense.
- The Washington Supreme Court (highest court) granted Townsend’s petition for review.
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Issue:
Does a police officer violate Washington’s privacy act when saving and printing e-mail and real-time ICQ messages between a suspect and a fictitious minor, or can the suspect be deemed to have impliedly consented to such recordings?
Opinions:
Majority - Alexander, C.J.
No, a Spokane police officer did not violate Washington’s privacy act because Donald Townsend impliedly consented to the recording of his e-mail and ICQ communications. The court first affirmed that Townsend’s communications were 'private' due to his subjective intent, shown by his request for secrecy and the sensitive subject matter, and that this intent was reasonable. It also found the communications were 'recorded by a device' within the act's meaning, rejecting the State’s argument that recording on the same device used for communication was a 'distinction without a legal difference.' Crucially, the court found implied consent: for e-mail, recording is inherent for usefulness, and users implicitly consent to this. For ICQ, Townsend's consent was implied because the software's privacy policy explicitly warned users that messages might be recorded, and his familiarity with the technology could be inferred. The court distinguished this from 'State v. Faford,' noting here the recording was by a party to the communication and preceded by software warnings, unlike the third-party interception in 'Faford.' Finally, the court concluded that Townsend took a substantial step toward attempted rape, noting that factual impossibility (the target being a detective) is not a defense to the crime of attempt under RCW 9A.28.020(2), as the statute focuses on the actor's criminal intent. The conviction was affirmed.
Dissenting - Sanders, J.
Yes, the Spokane police officer did violate Washington’s privacy act because Townsend did not actually consent to the recording, and the majority wrongly infers an exception and implies consent where none exists. Justice Sanders argued that the majority's decision creates an unstated consent exception and then relies on implied consent, leading to a loss of privacy. He contended that Townsend did not actually consent to the recording of his private ICQ messages and had no reason to believe they would necessarily be recorded, unlike e-mail. He stated that the 'mere possibility that intrusion on otherwise private activities is technologically feasible' does not equate to consent, citing 'State v. Faford,' and saw no statutory distinction between recording by an intended recipient and a third party. The dissent asserted the majority was 'rewriting the statute to allow invasions of privacy when it is the State in a criminal investigation that does the invading,' contrary to the act’s purpose of protecting privacy from government intrusion. He emphasized that the plain language of RCW 9.73.030 prohibits 'any recording' by 'any device,' without the limitations suggested by the majority or concurrence.
Concurring - Bridge, J.
No, the Spokane police officer did not violate Washington’s privacy act, but for a different reason: the Washington Privacy Act does not apply to Townsend's computer communications when the device used to communicate is the same instrument that records the communication. Justice Bridge concurred that Townsend took a substantial step toward attempted rape. However, she disagreed with the majority's application of the privacy act, asserting that the act is intended to prevent surreptitious recording and interception by a party using a different device, not when the recording is an inherent function of the communication device itself. For both e-mail and ICQ, she argued, the 'recording' is an inherent computer function, not an 'affirmative action' of interception that the Legislature intended to prohibit, as indicated by legislative history focusing on eavesdropping equipment. Expanding the act to inherently recorded electronic communication, she contended, would lead to absurd results, making virtually all digital communication criminal. She concluded that any expansion of the act to cover these communications should be left to the Legislature.
Analysis:
This case significantly interprets Washington's highly restrictive privacy act in the context of emerging digital communication technologies. By establishing that implied consent can arise from the inherent functionality of software or explicit privacy warnings, the court sets a precedent for balancing individual privacy rights against law enforcement needs in the digital age. Future cases will likely scrutinize the adequacy of software warnings and the 'reasonableness' of user awareness when determining implied consent for digital interactions, potentially diminishing privacy protections for those who do not thoroughly review terms of service or understand technological defaults. This ruling also reinforces that factual impossibility is not a defense for attempt crimes, focusing on the defendant's criminal intent.
