Congress Legislates Within Enumerated Powers
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The Mom Can't Spy Case

We're hearing cries about judicial activism again.  The media is reporting that the Washington Supreme Court held that parents may not monitor the telephone conversations of their children.  Furthermore, that this decision is the result of judicial activism.

Let's get something straight: This was not a constitutional law case.  In State v. Christensen, the Washington court did not hold that a child's right to privacy trumped parental control.  Rather, judges were interpreting a plainly-worded statute.  That statute said that it was unlawful to:

intercept, or record any: [p]rivate 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)(a) (emphasis added).  Moreover, any "[e]vidence obtained in violation of the act is inadmissible for any purpose at trial."  RCW 9.73.050.

Boyfriend called and asked for daughter.  Daughter took the phone and left the room because she did not want mom to listen in.  Yet mom listened in on daughter's conversation and the prosecution used the evidenced obtained therefrom at trial against boyfriend.  That seems to me to meet the plain language of the law.  But the prosecutors sought a dose of judicial activism.

The prosecution made two arguments that daughter's call was not "private."  First, "The State suggests ... that because Lacey and Christensen knew that it was possible that their calls would be monitored, their expectation of privacy was not reasonable despite their subjective intent."  In other words, because you and I know that some perverts might listen in our conversations, nothing we say over a cellular or wireless telephone is private.  Nothing.  The ability of a scoundrel to spy on us means that nothing we say using a wireless phone is private.  The court rejected this argument, and I'm glad that they did.

The prosecution's second argumentt was "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."  In other words, courts should read an exception into the law when no exception is specifically listed.  That's what implied exception means, after all.  The court respected the legislature and rejected that argument.

Some people are saying that since there is an implied exception to the federal wiretap act, that the court should have implied an exception here.  But there is a big difference.  Under the federal law, a single party may consent to a phone call being monitored.  (That's something to keep in mind before baring your soul over the phone).  Washington's law is broader: It protects the caller and the callee.  Thus, federal cases allowing parents to vicariously consent to their child being monitored do not apply because boyfriend must also consent to monitoring.

Boyfriend is a dirt bag, but the Washington law protects his privacy.  If you don't like it, write the legislature: Tell them to change the law.  But don't ask the Washington Supreme Court to reach an activist result.