The State of Washington, Respondent, v. Donald T. Townsend, Petitioner, 147 Wash. 2d 666

Alexander, C.J. he principal issue we are called upon to resolve is whether a Spokane police officer violated a provision in Washington’s privacy act when he saved and printed e-mail and real time client-to-client ICQ messages between Donald Townsend and a fictitious child. We conclude that the act was not violated because Townsend impliedly consented to the recording of his e-mail and ICQ communications. We, therefore, uphold the decision of the Court of Appeals affirming Townsend’s conviction in superior court on a charge of attempted second degree rape.

I The facts which we set forth hereafter are largely gleaned from the trial court’s extensive and unassailed findings of fact. Based on tips received from a citizen informant, a detective with the Spokane Police Department, Jerry Keller, suspected that Donald Townsend was attempting to use his computer to arrange sexual liaisons with young girls. Acting on this information, Keller set up a “sting operation” whereby he established a “Hotmail” Internet e-mail account with a screen name of “ambergirl87” (Amber), a fictitious 13-year-old girl. Clerk’s Papers (CP) at 334.

Beginning in May 1999, Townsend, using the screen name “Big Red,” but identifying himself as Donald Townsend, began corresponding with Amber via e-mail. CP at 335. These communications from Townsend were stored automatically on Keller’s computer. This enabled Keller to read the messages at his leisure and to print them for later use as evidence. The e-mail communications from Townsend contained overtures for a meeting with Amber and indications that he wanted to “have fun” with her. CP at 68.

In an e-mail message sent on June 1, 1999, Townsend indicated to Amber that “[I] need a promise from you ok don’t tell anyone about us.” CP at 66. At the urging of Townsend, Detective Keller, under the guise of Amber, “set up” an ICQ account on June 1,1999. CP at 335. ICQ is an Internet discussion software program that allows users to communicate “across the Internet to chat freely almost as if you were talking on the phone but typing on the keyboard.” Verbatim Report of Proceedings at 44. Keller’s ICQ program was “defaulted” to automatically record the ICQ messages he received. CP at 325.

The ICQ communications between Townsend and Amber contained graphic discussions about sexual topics including sexual intercourse. Shortly after the ICQ communications began, Townsend made arrangements via ICQ to meet Amber at a Spokane motel room on June 4, 1999. The night before the scheduled meeting, Townsend sent Amber an ICQ message in which he stated “he wanted to have sex with [her]” the following day. CP at 336. On June 4, 1999, about an hour before the arranged meeting, Townsend sent his last ICQ message to Amber indicating that “he still wanted to have sex” with her. CP at 336.

Townsend went to the motel at the appointed time and knocked on the door of the room in which he believed Amber was located. After asking to see Amber, he was arrested by Detective Keller. Townsend later admitted that he left his apartment intending to have sex with Amber, whom he believed was 13, but thereafter “changed his mind.” CP at 336. Townsend admitted to the police officers that he sent the ICQ message on June 3, 1999, in which he said he wanted to have sex with Amber the next day. Townsend was charged in Spokane County Superior Court with attempted second degree rape of a child.

Before trial, Townsend moved to dismiss the charge, arguing, among other things, that Keller’s recording and printing of his private e-mail and ICQ communications violated Washington’s privacy act,

chapter 9.73 RCW, thus rendering any evidence of the communications inadmissible. His motion was denied. After a bench trial, Townsend was found guilty of the charged offense. He was sentenced to 89 months in prison. Townsend appealed his conviction to Division Three of the Court of Appeals.

Although the Court of Appeals concluded that the aforementioned computer communications were subject to the privacy act in that they were “private” and had been “recorded by a device” within the meaning of RCW 9.73.030(l)(a), it affirmed Townsend’s conviction on the basis that “Townsend impliedly consented to the recording[s].” State v. Townsend, 105 Wn. App. 622, 629, 630, 20 P.3d 1027, review granted, 144 Wn.2d 1016, 32 P.3d 283 (2001).

In doing so it also rejected Townsend’s sufficiency of the evidence argument that because there was a detective at the other end of the Internet, rather than a child, it was factually impossible for him to commit the charged crime. We thereafter granted Townsend’s petition for review. II Townsend maintains that the Court of Appeals erred in holding that he impliedly consented to the recording and printing of his “private” e-mail and ICQ communications.

The State, while not disputing that the Court of Appeals correctly concluded that Townsend consented to the recording of his computer communications, asserts in its answer to Townsend’s petition for review that the Court of Appeals erred in holding that the communications were “private” and “record [ed]” by a “device” as those terms are used in Washington’s privacy act. Thus it maintains that the communications between Townsend and Amber were not subject to the privacy act.

A provision in Washington’s privacy act provides that it is unlawful to record any: [pjrivate communication transmitted by telephone, telegraph, radio, or other device between two or more individuals . . . [using] 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(l)(a). This statute is considered one of the most restrictive in the nation. Evidence obtained in violation of the statute is inadmissible in a criminal case.

RCW 9.73.050. We must first determine if the communications between Townsend and the fictitious child, Amber, fall under the act as private communications recorded by a device. If we answer those questions in the affirmative, we must then determine if the Court of Appeals was correct in concluding that Townsend consented to the recording of his private communications. A. Were the communications private? As noted above, Townsend asserts that his e-mail and ICQ communications to Amber were private communications and, thus, not lawfully recorded without his consent.

The State suggests that it “is unclear under the facts presented” whether the communications between Townsend and Amber “were private communications under this Act.” Br. of Resp’t at 6. The Court of Appeals correctly observed that the question of whether a particular communication is private is generally a question of fact, but one that may be decided as a question of law if the facts are undisputed. State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384 (1996).

This court has adopted the dictionary definition of the word “private”: “ ‘ “belonging 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) (quoting State v. Forrester, 21 Wn. App. 855, 861, 587 P.2d 179 (1978) (quoting Webster’s Third New International Dictionary (1969)), review denied, 92 Wn.2d 1006 (1979)).

The subjective intention of the parties to the communication is among the factors that the court may consider in determining if a communication is private. A court may also consider other factors bearing on the reasonableness of the participants’ expectations, such as the duration and subject matter of the communication; the location of the communication and the presence of potential third parties; and the role of the nonconsenting party and his or her relationship to the consenting party. Clark, 129 Wn.2d at 225-27.

The mere possibility that interception of the communication is technologically feasible does not render public a communication that is otherwise private. See State v. Faford, 128 Wn.2d 476, 485, 910 P.2d 447 (1996), in which we held that Washington’s privacy act protects against the monitoring of cordless telephone conversations. We hold, as did the Court of Appeals, that Townsend’s communications to the fictitious child, Amber, were private. We reach that conclusion because it is readily apparent from the undisputed facts that Townsend’s subjective intention was that his messages to Amber were for her eyes only.

That intent is made manifest by Townsend’s message to Amber to not “tell anyone about us.” CP at 66. In addition, the subject matter of Townsend’s communications to Amber strongly suggests that he intended the communications to be private. While interception of these messages was a possibility, we cannot say that Townsend’s subjective intention that his communications were private was unreasonable under the circumstances. B. Were the communications recorded by a device?

In concluding that the private e-mail and ICQ communications between Townsend and Amber had been recorded as contemplated by the act, the Court of Appeals rejected the State’s argument that the communications were not recorded because “ ‘Recording’ is simply an inherent part of the use of a computer” and that prior “cases all involved use of a device different than the device used to perform the communication itself.” Br. of Resp’t at 7, 8. We agree with the Court of Appeals that it makes no difference that the recording was accomplished on a device that was used in the communication.

The plain fact is that the communications from Townsend to Amber were recorded on Detective Keller’s computer. That the communications were recorded on a device that can also be used to communicate is, as the Court of Appeals observed, “a distinction without a legal difference.” Townsend, 105 Wn. App. at 628. We also reject the State’s argument that Detective Keller’s computer was not a device as contemplated by the privacy act.

We fully subscribe to the Court of Appeals’ conclusion that the language of the statute is broad and refers to devices “ ‘electronic or otherwise designed to record and/or transmit said communication□ regardless of how such device is powered or actuated.’ ” Townsend, 105 Wn. App. at 628 (quoting RCW 9.73.030(l)(a)). Detective Keller’s computer is such a device. C. Did Townsend consent to the recording of his private communications?

Having determined that the private e-mail and ICQ communications between Townsend and Amber fall under the purview of the aforementioned provision in Washington’s privacy act because they were recorded by a device, we must next confront the question of whether Townsend consented to the recording of his private communications. If he did the recording was not unlawful. That is so because, as we have noted above, it is not unlawful to record a communication on a device where the “consent of all the participants in the communication” has been obtained. RCW 9.73.030(l)(a).

A party is deemed to have consented to a communication being recorded when another party has announced in an effective manner that the conversation would be recorded. RCW 9.73.030(3). In addition, a communicating party will be deemed to have consented to having his or her communication recorded when the party knows that the messages will be recorded. See In re Marriage of Farr, 87 Wn.

App. 177, 184, 940 P.2d 679 (1997), review denied, 134 Wn.2d 1014 (1998), in which the Court of Appeals held that a party had consented to the recording of his messages when he left the message on a telephone answering machine, the only function of which is to record messages. Although Townsend did not explicitly announce that he consented to the recording of his e-mail and ICQ messages to Amber, we are of the view that his consent may be implied. Insofar as Townsend’s e-mail messages are concerned, in order for e-mail to be useful it must be recorded by the receiving computer.

We entirely agree with the observation of the Court of Appeals that: A person sends an e-mail message with the expectation that it will be read and perhaps printed by another person. To be available for reading or printing, the message first must be recorded on another computer’s memory. Like a person who leaves a message on a telephone answering machine, a person who sends an e-mail message anticipates that it will be recorded. That person thus implicitly consents to having the message recorded on the addressee’s computer. Townsend, 105 Wn. App. at 629.

In sum, because Townsend, as a user of e-mail had to understand that computers are, among other things, a message recording device and that his e-mail messages would be recorded on the computer of the person to whom the message was sent, he is properly deemed to have consented to the recording of those messages. The question of whether the Court of Appeals erred in holding that Townsend consented to the recording of his ICQ communications is a closer question than the question of whether his consent to the recording of his e-mail messages may be implied.

We say that because, unlike e-mail, ICQ technology does not require that messages be recorded for later use. Rather, it functions with both communicators on-line at the same time. In other words, each party talks in “real time” by sending their message on to the computer monitor of the other party who may respond with an answering message. Necessarily, the computer message is saved long enough to allow the person to whom the communication is addressed to answer. Whether the ICQ communication is saved for a longer period of time depends on the computer software used by the recipient.

Here, as we have noted above, the recipient of the ICQ messages was Detective Keller and his ICQ software program was defaulted to automatically record messages from Townsend that he received. The more pertinent question is whether Townsend was aware that the software was or could be defaulted.

Significantly, Townsend’s ICQ contained a “privacy policy” that specifically warned users that “[s]ome versions of the software allow any party to an ICQ session to record the content of the session” and that “[t]he ICQ program default in some versions is set to record message and other event dialog and traffic.” CP at 139.

The ICQ privacy policy also warned users that they risk “[u]nauthorized exposure of information and material you listed or sent, on or through the ICQ system, to other users, the general public or any other specific entities for which the information and material was not intended by you.” CP at 136. In addition, the ICQ software privacy policy warned users against use of ICQ software for “ ‘Content Sensitive’ applications and purposes” and advised them that if they wish not to be exposed to these risks, they should not use the software. CP at 136.

The Court of Appeals concluded that by “using the ICQ client-to-client communications, Mr. Townsend impliedly consented to recording of the communications” to Amber. Townsend, 105 Wn. App. at 630. Townsend asserts that the Court of Appeals’ decision conflicts with this court’s opinions in State v. Faford, 128 Wn.2d 476, 481, 910 P.2d 447 (1996); Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178, 192, 829 P.2d 1061 (1992); State v. Young, 123 Wn.2d 173, 186, 867 P.2d 593 (1994); and State v. Myrick, 102 Wn.2d 506, 513-14, 688 P.2d 151 (1984). Pet. for Review at 3-4.

He primarily focuses on our opinion in Faford, in which we rejected an argument by the State that warning labels on cordless telephones and/or in the owner’s manual constituted a waiver of one’s privacy protections. Pet. for Review at 4 (quoting Faford’s holding that “ ‘the mere possibility that intrusion on otherwise private activities is technologically feasible’ ” does not strip citizens of their privacy rights. Faford, 128 Wn.2d at 485). We believe our decision in Faford is not controlling here.

That is so because in Faford we were confronted with communications over a cordless telephone that were intercepted by someone who was not a party to the telephone conversations. There was no suggestion there that the communicators had either consented to the communications being recorded or advised that they might be recorded. Here, the recording of the ICQ client-to-client communication was undertaken not by a third party but by a party who was the recipient of the communication.

Furthermore, as we have observed, the ICQ privacy policy advised users such as Townsend that if they did not wish to be subjected to the risks of recording, they should not use the software. Although no evidence was presented at trial establishing that Townsend had acquainted himself with the ICQ privacy policy, his familiarity with it may reasonably be inferred. In that regard we agree with the superior court judge who ruled on Townsend’s motion to dismiss that the saving of messages is inherent in e-mail and ICQ messaging.

In addition, the fact that Townsend encouraged the recipient of his ICQ messages, the fictitious Amber, to set up an ICQ account strongly suggests that he was familiar with the technology. We are satisfied, in sum, that Townsend was informed by ICQ software privacy policy and by his general understanding of ICQ technology that the recording of ICQ messages by a recipient is a possibility. Consequently, like other users of ICQ technology, he took a risk that his messages might be recorded by the recipient.

The Court of Appeals, therefore, correctly concluded that under these circumstances Townsend impliedly consented to the recording of his ICQ messages. Ill Finally, we must determine if there is sufficient evidence in the record that Townsend took a substantial step toward commission of the crime of second degree rape. In making that decision, we must view the evidence in the light most favorable to the State and decide whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980).

In order to be found guilty of an attempt to commit a crime, the defendant must take a substantial step toward commission of that crime. RCW 9A.28.020(1). A person does not take a substantial step unless his conduct is “strongly corroborative of the actor’s criminal purpose.” State v. Aumick, 126 Wn.2d 422, 427, 894 P.2d 1325 (1995); State v. Workman, 90 Wn.2d 443, 451, 584 P.2d 382 (1978). Mere preparation to commit a crime is not a substantial step. Workman, 90 Wn.2d at 449-50.

The gist of Townsend’s argument on this point is that “[h]e could never take a ‘substantial step’ toward completing the crime with ‘Amber’ because ‘Amber’ was in reality Detective Keller.” Pet. for Review at 4. The Court of Appeals properly rejected this argument noting that “RCW 9A.28.020(2) expressly provides that factual impossibility is not a defense to a crime of attempt.” Townsend, 105 Wn. App. at 631. The attempt statute focuses on the actor’s criminal intent, rather than the impossibility of convicting the defendant of the completed crime.

We agree with the Court of Appeals that “[i]t thus makes no difference that Mr. Townsend could not have completed the crime because ‘Amber’ did not exist. He is guilty ... if he intended to have sexual intercourse with her.” Townsend, 105 Wn. App. at 631. IV For the reasons set forth above, we affirm the Court of Appeals’ decision in Townsend in all respects. In our view, the Court of Appeals properly held that:

(1) Washington’s privacy act applies to computers that can record and save messages;

(2) Townsend consented to the recording of his private e-mail and ICQ communications by the recipient of the communications; and (3) there is sufficient evidence that Townsend took a substantial step toward the commission of the crime of attempted second degree rape. Smith, Johnson, Madsen, Chambers, and Owens, JJ., concur. The informant contacted Detective Keller after engaging in Internet chat with Tbwnsend. According to the informant, Townsend stated during the chat that he wanted to have sexual contact with young girls. Townsend also sent the informant four pictures via the Internet.

One picture was of Townsend and another was of Townsend’s wife. The third picture was of a clothed female who appeared to be 14 or 15 years of age. The fourth picture was of a completely nude female who appeared to be between 16 and 18 years of age. She was posing with her legs spread apart. In her concurring opinion, Justice Bridge supports the notion that Washington’s privacy act does “not apply when the device used to communicate is the same instrument that records the communication.” Concurrence at 680.

In our view, the concurring opinion construes the act too narrowly and pays insignificant heed to RCW 9.73.030(l)(a), which provides that it is unlawful to record a private transmission on “any device.” While one could certainly mount a cogent argument for the proposition that the privacy act should not apply when the recording of a transmission is done in a nonsurreptitious way on a device that is also used for communication, the plain language of the statute covers such recording. The legislature may, however, wish to consider amending the statute in light of developments in technology.

It is, as the concurrence correctly suggests, “in the best position to weigh the competing policies.” Concurrence at 685. As Justice Bridge noted in her concurring opinion, “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.” Concurrence at 681.