I agree with the majority that Townsend took a substantial step toward attempted rape. I disagree, however, with the majority's conclusion that Washington's privacy act, chapter 9.73 RCW, applies to Townsend's computer communications. Instead, I would hold that the act seeks to protect individuals against surreptitious recording and interception of communications by a party only where the device used to record the conversation is different from the device used for the communication. Therefore, the act would not apply when the device used to communicate is the same instrument that records the communication.
There are two types of computer communications at issue in this case. The first is standard e-mail communication in which the sender composes a message and sends it via the internet to the recipient's computer where it is recorded or stored until the recipient decides to `open' it. This process is most analogous to a letter sent through the mail. Although not addressed in Washington cases, other jurisdictions have found that the reasonable expectation of privacy in an e-mail, like a letter sent through the mail, ends when the recipient opens it. Guest v. Leis,255 F.3d 325, 333 (6th Cir. 2001); Commonwealth v. Proetto, 771 A.2d 823,831-33 (Pa.Super. 2001) (holding that there is no reasonable expectation of privacy in e-mail messages sent by man to *Page 681 15-year-old girl), appeal granted, 567 Pa. 667, 790 A.2d 988 (2002). Once opened, the recipient has complete freedom to do what he or she wishes with the communication. See United States v. Maxwell, 45 M.J. 406, 417-18 (1996).
The second type of computer communication at issue is ICQ, or instant messaging, where the conversation between the parties occurs in `real time.' The ICQ program used by Detective Keller in his communications with Townsend had an automatic recording function set as its default. Clerk's Papers (CP) at 139. Some ICQ programs do not have this default, hence the communications are `recorded' only by an affirmative action of the recipient. This distinction does not change the fact that all information received or transmitted by the computer is recorded and stored on the computer's hard drive and is therefore available for later retrieval.
This case addresses only whether the e-mail and ICQ communications were `recorded' within the meaning of the act. To determine whether these types of communications are `recorded' needs only a simple analysis. In both cases, the `recording' of the incoming communication is an inherent function of the computer and not the result of some affirmative action by an individual. It is that affirmative action, intended to surreptitiously record conversations or to intercept the communications of others, which the Legislature intended the act to prohibit. See House Journal, 40th Leg., 1st Ex. Sess., 2030-31 (Wash. 1967).
The Court of Appeals stated, `Detective Keller's computer certainly was designed to record communications such as e-mail and other messages.' State v. Townsend, 105 Wn. App. 622, 629, 20 P.3d 1027 (2001). The majority agrees, stating that `the language of the statute is broad and refers to devices "electronic or otherwise designed to record and/or transmit said communications regardless of how such device is powered or actuated.'" Majority at 8 (quoting Townsend, 105 Wn. App. at 628 (quoting RCW9.73.030(1)(a))). *Page 682
Contrary to the majority's opinion, however, the plain language of the statute is narrow. In relevant part, RCW 9.73.030 states,
(1) . . . 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.
(Emphasis added.)
Cases interpreting `recording' under the act have dealt exclusively with devices that were specifically designed to record. State v. Clark,129 Wn.2d 211, 214-15, 916 P.2d 384 (1996) (audio portion of camera used for recording drug deals); State v. Faford, 128 Wn.2d 476, 479-80,910 P.2d 447 (1996) (police scanner); State v. Jimenez, 128 Wn.2d 720, 722,911 P.2d 1337 (1996) (interception and recording of drug transactions); State v. Smith, 80 Wn. App. 535, 537, 910 P.2d 508 (1996) (body wire); Schonauer v. DCR Entm't, Inc., 79 Wn. App. 808, 819,905 P.2d 392 (1995) (audiotape recording of telephone conversation); State v. Gonzalez, 71 Wn. App. 715, 716-17, 862 P.2d 598 (1993) (unauthorized recording by `body mike').
Even when an instrument is designed specifically to record, the Court of Appeals has recognized correctly that a `device' that records under RCW 9.73.030 must be separate from the equipment used in the communication. State v. Wojtyna, 70 Wn. App. 689, 696, 855 P.2d 315 (1993). In Wojtyna, Snohomish County police confiscated a telepager from a local cocaine dealer incident to an arrest. Id. at 691. The telepager was left on to accept incoming telephone calls and the device recorded incoming telephone numbers. Id. A detective called one of the incoming telephone numbers and arranged a meeting with the defendant to exchange a *Page 683 substance thought by the defendant to be cocaine for money. Id. Police arrested the defendant and he was convicted of attempted possession of a controlled substance. Id. The defendant moved to suppress the evidence, arguing that it was obtained in violation of the act. Id. In affirming the trial court's denial of the motion, the Court of Appeals stated `it is doubtful whether the pager constitutes a `device' within the meaning of the [act]' because the telepager was merely displaying the recorded telephone numbers. Id. at 696 (citing United States v. Meriwether,917 F.2d 955, 960 (6th Cir. 1990)).
Washington courts construction of the act to include only interceptions committed by an actual `device' also supports the conclusion that the act intended the recording device to be separate from the instrument transmitting the communication. State v. Corliss, 123 Wn.2d 656, 662,870 P.2d 317 (1994) (holding that act of tipping a telephone so that police could hear conversation was not conduct that implicated act because officer did not intercept communication with device); State v. Gonzales,78 Wn. App. 976, 979-82, 900 P.2d 564 (1995) (holding no violation of act for police officer to answer phone in defendant's home in his absence because no device was used and no interception had occurred); State v. Bonilla, 23 Wn. App. 869, 870-72, 598 P.2d 783 (1979) (holding that officer listening on extension phone did not violate act because an extension telephone did not constitute a separate recording or transmitting device).
Moreover, the act seeks to prevent surreptitious and affirmative acts by a party who purposely intercepts and records private communications. We have stated that the intent of the act was to discourage `intentional, persistent eavesdropping on another's private affairs.' Faford, 128 Wn.2d at 486. The legislative history also indicates that the Legislature enacted RCW 9.73.030 to prohibit the use of equipment to eavesdrop. See House Journal, supra. During the bill's debate, Representative Blackstrom asked, `Do we have it clear that this bill precludes eavesdropping?' Id. at 2031. Representative Heavey responded, *Page 684
Right now we have no laws that prevent eavesdropping. Somebody can eavesdrop if they have the equipment to do it. This law prevents them from doing it, but it does permit, in rare instances with court approval. . . .
Id. (emphasis added).
To expand the act to include e-mail and ICQ communications would produce the absurd result of making all electronic communication via computers criminal by virtue of how the communication is inherently transmitted and stored on the recipient's computer. See State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990) (stating that `statutes should be construed to effect their purpose and unlikely, absurd or strained consequences should be avoided'). For e-mail communications to be useful, they must be recorded. See William DeCoste, Sender Beware: The Discoverability and Admissibility of E-mail, 2 Vand. J. Ent. L. Prac. 79, 81 (2000). Technically, e-mail messages are permanently recorded since `most email programs keep copies of every message a user ever wrote, every message the user ever received, and every message the user deleted.' David T. Cox, Litigating Child Pornography and Obscenity Cases in the Internet Age, 4 J. Tech. L. Pol'y 114 (1999). Although some e-mail services may offer the possibility of `shredding' an e-mail message, arguably the equivalent of actually deleting it, the e-mail file may still be retrievable using certain software. Id. `A deleted file is really not a deleted file, it is merely organized differently.' Id. at 100.
Consequently, to hold that the act covers electronic computer communication in this case would render both ICQ messaging and e-mail communication criminal, even if the recipient of the electronic communication wanted to delete the message files to avoid violating the act. It is not this type of unintentional and nonaffirmative recording of private communications that the Legislature intended to *Page 685 prohibit when it enacted RCW 9.73.030.1 See Faford, 128 Wn.2d at 486.
Therefore, I would hold that Washington's privacy act does not encompass e-mail and ICQ messaging because the communication was not recorded by a separate instrument nor was the communication surreptitiously or intentionally recorded. Any expansion of the act to encompass these communications must be left to the Legislature, which is in the best position to weigh the competing policies.
IRELAND, J., concurs with BRIDGE, J.