SAN JUAN COUNTY PROSECUTOR

Parental eavesdropping illegal

posted 12/10/04
It is a crime for parents to eavesdrop on their children's telephone conversations according to Washington State Supreme Court. The Dec. 9, 2004 ruling involving a conviction in Friday Harbor has made new law, said San Juan County Prosecutor Randy Gaylord. Washington is one of 11 states which require "all-party consent"

In the case involving a mugging on Spring Street, part of the evidence used to convict Oliver Christensen came from a telephone conversation, Carmen Dixon eavesdropped on, between her daughter and Christensen. The Supreme Court ruled the conversation was private. No exemption exists in state law giving parents permission to monitor their children's phone conversations, the court said.

Gaylord was attending a Washington Association of Prosecuting Attorneys conference in Seattle when the ruling was issued. "There has been a strong reaction of outrage," he said. "This is the first time this has ever been a crime in this state," he said. Dixon was concerned about her then 14-year-old daughter who was involved with the 17-year-old boy, Gaylord said. "Parents should get involved in children's lives."

The association will be "asking the legislature to take swift action," Gaylord said. They will ask for legislation to be passed which would allow parents to monitor their children's conversations.

The legislature has acted in the past in similar situations. Gaylord noted when a court ruled it was legal for a man to videotape up women's skirts, the state legislature passed laws making such an act a crime.

The State Supreme Court ruled there is no implied consent allowing parents to eavesdrop on their children's phone conversations. The "all-party consent" language in Washington's statute "unlike similar statutes in 38 other states, tips the balance in favor of individual privacy at the expense of law enforcement's ability to gather evidence without a warrant. Since 1967, the legislature has twice made amendments to the act without amending the 'all-party consent' provision," the court said.

The ruling states:

The State also suggests that there should be an implied exception to the act in the case of minor children, arguing that children have a reduced expectation of privacy because parents have an absolute right to monitor all telephone calls coming into the family home. The federal wiretap statute, which makes interception of communications legal where one party consents, has been interpreted to permit parents acting to protect the welfare of a child, to consent vicariously for their child to the recording of their child's conversations.

The Washington act, with its all-party consent requirement, contains no such parental exception and no Washington court has ever implied such an exception. We decline to do so now.

The State also alleges that because Mrs. Dixon had listened in to her daughter's conversations in the past, reasonable expectations of privacy had been destroyed. There is no evidence in the record, however, that either Lacey or Christensen was aware of Mrs. Dixon's earlier monitoring.

Furthermore, since it is Christensen's expectation of privacy with which we are concerned, even if Lacey did have a lowered expectation of privacy based on the nature of the relationship with her mother, it cannot reasonably be said that Christensen's expectation was similarly lowered. The parties' conversation was private.

The court's ruling has garnered national attention. Gaylord has been interviewed by ABC, NBC, MSNBC, Fox News, and others about the case.

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