¶13 "[Washington's privacy act, chapter 9.73 RCW] is one of the most restrictive electronic surveillance laws ever promulgated." State v.O'Neill, 103 Wn.2d 853, 878, 700 P.2d 711 (1985). Today the majority has changed this calculus by allowing jails to record and listen to an inmate's telephone conversations, thereby significantly limiting the act's protections. I believe the privacy act requires phone conversations between family members remain confidential, even where one of the family members "has been charged with a crime, is held on a petty or serious offense, is [in jail] for public safety reasons, or simply is too poor to afford minimal bail." Majority at 90 n. 2.1 would hold the phone conversations at *Page 91 issue here were private and should not have been admitted into evidence.
¶14 The Washington privacy act plainly prohibits intercepting or recording a private telephone conversation without the consent of the parties to the conversation.
[I]t 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.
RCW 9.73.030(1). Violation of the privacy act is not only a gross misdemeanor3 but also can give rise to a civil cause of action.4 Although the King County Jail may have committed both a tort and a gross misdemeanor in recording Desmond Modica's conversations with his grandmother, this case involves the provision prohibiting the use of illegally recorded conversations as evidence in a criminal trial. RCW9.73.050 ("Any information obtained in violation of RCW 9.73.030 . . . shall be inadmissible in any civil or criminal case. . . .").
¶15 Whether a conversation is private is based on both the subjective intentions of the parties and other factors demonstrating whether the parties' intentions to keep the conversation private were reasonable.State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384 (1996). These factors are the "[d]uration and subject matter of the conversation," the "[l]ocation of [c]onversation and [p]resence or [p]otential [p]resence of a [t]hird [p]arty," and the "[r]ole of the [n]onconsenting [p]arty and [h]is or [h]er [r]elationship to *Page 92 the [c]onsenting [p]arty." Clark, 129 Wn.2d at 225-26 (emphasis omitted). A conversation is private if it "`"belong[s] to one's self . . . secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something . . . a secret message: a private communication . . . secretly: not open or in public."'" Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 190,829 P.2d 1061 (1992) (some alterations in original) (quoting State v.Forrester, 21 Wn. App. 855, 861, 587 P.2d 179 (1978) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1969))).
¶16 Clearly, conversations between a man and his grandmother are intended to be private. Like the conversations at issue in State v.Faford, 128 Wn.2d 476, 910 P.2d 447 (1996), Modica's conversations with his grandmother were intended to remain confidential. The conversations were not "inconsequential, nonincriminating telephone conversation [s] with a stranger," which the court has held "lacked the expectation of privacy necessary to trigger the privacy act." Id. at 484-85 (citingKadoranian, 119 Wn.2d at 190; State v. Slemmer, 48 Wn. App. 48, 52,738 P.2d 281 (1987); Forrester, 21 Wn. App. at 861).
¶17 Moreover, the court has held a defendant's subjective intention that communication was private was reasonable in State v. Townsend,147 Wn.2d 666, 674, 57 P.3d 255 (2002). In Townsend the defendant sent a series of sexually explicit messages to a police detective who was posing as a 13-year-old girl named "Amber." Id. at 670. The court held these messages were private based in part on the subject matter of the conversation. Id. at 674. In this case Modica was conversing with his grandmother about helping his wife to avoid testifying at his trial. LikeTownsend this is strong evidence the conversations at issue here were private.
¶18 That Modica and his grandmother knew the call may be monitored does not make Modica's expectation that the conversation was private unreasonable. As we have previously stated, "[t]he mere possibility that interception of the communication is technologically feasible does not *Page 93 render public a communication that is otherwise private." Id.; see alsoFaford, 128 Wn.2d at 486 ("We will not permit the mere introduction of new communications technology to defeat the traditional expectation of privacy in telephone conversations.").
¶19 That telephone conversations from detained individuals are intended to be protected by the privacy act is demonstrated by the legislature's enactment of an exception for state prisons. RCW 9.73.095.5 That provision allows "[i]ntercepting, recording, or divulging any telephone calls from an offender or resident of a state correctional facility; or intercepting, recording, or divulging any monitored nontelephonic conversations in offender living units, cells, rooms, dormitories, and common spaces where offenders may be present." RCW9.73.095(1). The legislature has not seen fit to include a similar exception for county jails. Following the maxim expressio unius estexclusio alterius, we must hold the legislature, in excluding state prisons from the privacy act, intended to include other correctional facilities. Moreover, if calls from a correctional facility are not protected by the privacy act "because of the need for jail security," the provision excluding state correctional facilities would be superfluous. Majority at 89. A reading which leads to superfluous results is to be avoided. In re Det. of Martin, 163 Wn.2d 501, 510, 182 P.3d 951 (2008).
¶20 The majority allows the admission of recorded conversations of individuals detained in jail, innocent or not, 6 in part because the calls were "not to [a] lawyer or otherwise privileged." Majority at 89. It fails to recognize privileged conversations are not admissible into evidence, notwithstanding *Page 94 the privacy act. See RCW 5.60.060. The majority eviscerates the privacy act by effectively reducing its protections to that provided by other statutes. The privacy act in this situation provides no more protection to private communications than do the rules of evidence.
¶21 However even private conversations, like the ones here, are not protected by the privacy act where the parties consent to their disclosure. The State incorrectly argues Modica and his grandmother consented to the recording because they were notified the call could be recorded. However, notification does not equal consent. If notification were equivalent to consent to record and disclose private conversations, violating individual's rights would be avoided by announcing you intended to do so. See United States v. Novak, 453 F. Supp. 2d 249, 257 n. 3 (D. Mass 2006) (citing Blackburn v. Snow, 771 F.2d 556, 563 (1st Cir. 1985)).
¶22 Any purported consent here was involuntary and therefore invalid. This court has previously held consent cannot be voluntary where the individual was unaware he had the ability to refuse consent. Statev. Ferrier, 136 Wn.2d 103, 116, 960 P.2d 927 (1998). It stands to reason then if an individual cannot consent without being aware of the ability to refuse, an individual cannot consent when he has no ability torefuse. Modica had no other options to speak with his grandmother, except to use the jail phone, which in turn, recorded their conversation. Because Modica lacked the ability to avoid recording his phone calls, the "consent" here is illusory at best.
¶23 The majority undermines the protections provided by Washington's privacy act when it holds conversations between those in county jails and their loved ones are not private. The legislature intended these conversations to be protected or else county jails would have been included in the state prison exception. Moreover, any "consent" to record these conversations was illusory at best because the parties lacked meaningful choice. I would continue to limit the power of the State to surveil its citizens by holding *Page 95 these recordings were contrary to the privacy act and should have been excluded from evidence at trial.
¶24 I dissent.
ALEXANDER, C.J., concurs with SANDERS, J.