FILE
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
OCTOBER 8, 2026
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
SARAH R. PENDLETON
OCTOBER 8, 2026 SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CARLY BAKER, JANSSEN RAMOS )
SAVOIE, and AMBER SHAVIES, ) No. 104590-5
individually, and on behalf of those )
similarly situated, )
)
Petitioners, )
)
v. ) En Banc
)
SEATTLE CHILDREN’S HOSPITAL, )
a Washington nonprofit corporation, )
)
Respondent. ) Filed: October 8, 2026
____________________________________ )
ANGELIS, J.—The Washington privacy act (WPA) makes it unlawful to
“intercept, or record any . . . [p]rivate communication transmitted by telephone,
telegraph, radio, or other device between two or more individuals . . . without first
obtaining the consent of all the participants in the communication.” RCW
9.73.030(1)(a) (emphasis added). The plaintiffs are the lead plaintiffs of a putative
class action. They alleged that Seattle Children’s Hospital (SCH), a corporation, Carly Baker et al. v. Seattle Children’s Hospital, No. 104590-5
violated this provision when it used technology provided by Meta Platforms Inc. to
track the plaintiffs’ searches and clicks on SCH’s public website and SCH’s
automated responses, which SCH shared with Meta. According to the plaintiffs,
Meta then used the data to create targeted advertising based, at least in part, on the
plaintiffs’ activities on SCH’s website.
We conclude that the WPA does not prohibit SCH’s alleged actions. RCW
9.73.030(1)(a) governs interception or recording of “communication” between
“two or more individuals” and therefore excludes searches and clicks that generate
an automated response from SCH’s website. (Emphasis added.) Accordingly, we
affirm the trial court’s order dismissing the plaintiffs’ WPA claim.1
BACKGROUND
Because we are reviewing a motion to dismiss, we accept the factual
allegations in the plaintiffs’ complaint as true, and we determine whether they are
sufficient to support a violation of the WPA. 2 SCH maintains a public website.
The website provides general information, such as a directory of health care
professionals with particular specialties who work at SCH, hours of operation for
clinics, and descriptions of health conditions. Clerk’s Papers (CP) at 18-19, 22, 25,
1
On appeal, the plaintiffs did not raise, and we therefore do not address, the claims in their complaint that SCH’s actions violated other Washington laws.
2
Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995); Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007).
2
Carly Baker et al. v. Seattle Children’s Hospital, No. 104590-5
67-70. Users can navigate the website using a search bar or by clicking links. The
website also uses a cookie3 called Meta Pixel, which is free software used to track
website visitors and which Meta uses to target advertisements based on visitors’
activities on websites like SCH’s public site. Specifically, Pixel tracks users’
clicks, text searches, and page views, and it sends the data to Meta without the
user’s knowledge. For example, when a visitor types “depression” in the search
bar of SCH’s public website, the site loads a page with resources for this health
condition. Pixel records and relays the content of this search to Meta, which links
that information to the Facebook or Instagram account of the website visitor and
which Meta uses for targeted advertising.
If a user does not have a Meta account or is not logged into an account when
using SCH’s website, Pixel collects and transmits the user’s activity to Meta with a
unique identifier. That identifier allows Meta to link the user’s activity on the SCH
website when that individual logs in to or creates a Meta account.
SCH’s website alerts visitors, via a pop-up window, that if they accept
cookies, they agree to the use of that software to store data that assist in marketing.
3
The plaintiffs’ complaint defines “cookie” as a text file that stores information about a website viewer’s device that can be shared. Pixel uses first- and third-party cookies. A first-party cookie is created by the website that a user is currently visiting, and a third-party cookie can store and communicate a website user’s data from one website with a different website. Pixel uses these cookies to link the data from visitors to SCH’s public website with those visitors’ Meta identification and profiles.
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The alert does not, however, identify Pixel or explain the process by which Pixel
collects and uses website data.
In 2013, Carly Baker, Amber Shavies, and Janssen Ramos Savoie filed a
putative class action suit against the hospital, alleging a violation of the WPA. 4
The plaintiffs alleged that they visited SCH’s public website to search for
information regarding their children’s medical conditions and for clinic operating
hours, as well as visiting the patient portal, MyChart, to communicate with doctors
and view their children’s electronic records and medical histories.
The plaintiffs argued that their website searches constitute “private
communication[s]” that were intercepted and recorded by Pixel, violating RCW
9.73.030(1)(a). SCH challenged the sufficiency of the allegations, arguing that
Pixel was never installed on the hospital’s MyChart patient portal and that the
complaint should be dismissed for failure to state a claim for relief. At the close of
oral argument, the trial court granted SCH’s motion to dismiss with prejudice.
The plaintiffs appealed the dismissal of their WPA claim, arguing that
SCH’s use of Pixel on its public website violated RCW 9.73.030(1)(a). The Court
of Appeals determined that the plaintiffs’ searches and queries on SCH’s website
were not “private communication[s]” under the WPA because they alleged that the
4
The plaintiffs also brought claims under the Washington Consumer Protection Act, ch. 19.86 RCW, and Washington Uniform Health Care Information Act, ch. 70.02 RCW, as well as invasion of privacy, breach of implied contract, conversion, and unjust enrichment.
4
Carly Baker et al. v. Seattle Children’s Hospital, No. 104590-5
communications were unilateral rather than a “back-and-forth” exchange of
information with another party. Baker v. Seattle Children’s Hosp., No. 86481-1-I,
slip op. at 6, 10-11 (Wash. Ct. App. Aug. 18, 2025) (unpublished),
https://www.courts.wa.gov/opinions/pdf/864611.pdf. The court affirmed dismissal
of the complaint. Id. at 11.
The plaintiffs petitioned for review in this court, which we granted.
5 Wn.3d 1025 (2026). 5 We received amici curiae briefs from the Chamber of
Commerce of the United States and Washington State Hospital Association, and
Interactive Advertising Bureau Inc. in support of SCH.
ANALYSIS
A trial court’s ruling on a motion to dismiss for failure to state a claim is a
question of law that we review de novo. Scott v. Amazon.com, Inc., 6 Wn.3d 1, 8,
583 P.3d 1155 (2026) (quoting Cutler v. Phillips Petrol. Co., 124 Wn.2d 749, 755,
881 P.2d 216 (1994)). We apply the facts alleged in the complaint, and we may
also consider hypothetical facts “‘conceivably raised by the complaint’” in support.
Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995) (quoting
5
The plaintiffs did not explicitly abandon the allegation that Pixel was installed on MyChart, but they subsequently clarified that their claims targeted only the use of Pixel on SCH’s publicly available website. CP at 74 n.5 (plaintiffs’ statement that “MyChart . . . is relevant only to the extent that the Complaint alleges that the Pixel transmits to Meta when a patient attempts to login to MyChart”). We therefore limit our review to the plaintiffs’ activities on SCH’s public website.
5
Carly Baker et al. v. Seattle Children’s Hospital, No. 104590-5
Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978)); Kinney v. Cook,
159 Wn.2d 837, 842, 154 P.3d 206 (2007). We affirm dismissal if, after
construing the pleaded facts in favor of the nonmoving party, we conclude there is
not “‘any set of facts’” that “‘would justify recovery.’” Kinney, 159 Wn.2d at 842
(quoting Tenore v. AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104
(1998)).
The primary dispute in this case is the meaning of RCW 9.73.030(1)(a),
specifically the statutory phrase “between two or more individuals.” (Emphasis
added.) When interpreting a statute, our review is de novo. Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). We begin with the
statute’s text and the text of related statutes: “The surest indication of the
legislature’s intent is the plain meaning of the statute, which we glean ‘from all
that the Legislature has said in the statute and related statutes which disclose
legislative intent about the provision in question.’” Five Corners Fam. Farmers v.
State, 173 Wn.2d 296, 305, 268 P.3d 892 (2011) (quoting Campbell & Gwinn, 146
Wn.2d at 11). If a statute is ambiguous, we may consider other guides to
legislative intent, such as legislative history and circumstances of its enactment. Id.
at 305-06.
We begin with the statutory text. RCW 9.73.030 states, in relevant part:
(1) Except as otherwise provided in this chapter, it shall be unlawful for any
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Carly Baker et al. v. Seattle Children’s Hospital, No. 104590-5
individual, partnership, corporation, association, or the state of Washington,
its agencies, and political subdivisions to intercept, or record any:
(a) Private communication . . . between two or more individuals . . . .
(Emphasis added.)
RCW 9.73.030(1) references “individual” twice, and the statutory language
distinguishes between “individual[s],” on the one hand, and other entities such as
“partnership[s], corporation[s], association[s], or the state of Washington,” on the
other hand. When the legislature uses two different terms in the same statute, we
presume lawmakers intended the terms to have different meanings. Densley v.
Dep’t of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885 (2007) (citing Koenig v. City
of Des Moines, 158 Wn.2d 173, 182, 142 P.3d 162 (2006)). Accordingly, the term
“individual” in subsection .030(1)(a) does not encompass the other, separately
listed institutions in subsection .030(1).
In this case, no party disputes that SCH is a corporation, and each
communication involved only one of the plaintiffs and a fully automated system
SCH owns and operates. Thus, under the plain language of RCW 9.73.030(1), the
plaintiffs did not communicate with an “individual” when searching or clicking
and receiving automated responses. The WPA provision at issue covers only
private communications transmitted between “two or more individuals.” RCW
9.73.030(1)(a). Because only one individual was involved in each communication,
the plaintiffs do not have a claim under the WPA.
7
Carly Baker et al. v. Seattle Children’s Hospital, No. 104590-5
The plaintiffs argue that transmitted communications need not be between
“two or more individuals” because the WPA confirms that corporations can be
liable under the act. The fact that RCW 9.73.030(1) expressly states that both
individuals and corporations can be liable but separately requires covered
communications to be “between two or more individuals” reinforces (rather than
undermines) our conclusion. Had lawmakers intended the phrase “between two or
more individuals” in .030(1)(a) to encompass the full list of entities and
organizations in .030(1), they could have written .030(1)(a) to mirror the preceding
section or could have stated that the WPA protects communications between two
or more “persons,” rather than “two or more individuals.” The legislature did not
use such language, and courts cannot add or delete language from an unambiguous
statute. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). Accordingly, we
conclude that the relevant portion of the WPA does not apply to the
communications at issue, each of which involved only one of the plaintiffs and an
automated server maintained by a corporate entity.
The plaintiffs also ask us to take into account that our court has
characterized the WPA as “one of the most restrictive electronic surveillance laws
ever promulgated,” State v. Roden, 179 Wn.2d 893, 898, 321 P.3d 1183 (2014),
and courts have denied motions to dismiss claims alleging that conduct similar to
SCH’s actions here violate the federal wiretap act or California’s privacy act. As
8
Carly Baker et al. v. Seattle Children’s Hospital, No. 104590-5
we have cautioned, however, “[f]ederal cases on [the federal wiretap statute] are
not instructive given the significant differences between the state and federal
statutory schemes.” Id. at 905. The same is true of California’s privacy act, which
likewise differs significantly from the WPA. We also have clarified that when we
described the WPA as among the “most restrictive” privacy statutes, we were
focused primarily on its requirement that all parties consent before a
communication may be recorded, which the federal wiretap act does not require,
and which most states do not require. State v. Kipp, 179 Wn.2d 718, 724-25, 317
P.3d 1029 (2014) (noting that “Washington is 1 of only 11 states that require that
all parties to a private communication consent to its recording and disclosure”).
In sum, RCW 9.73.030(1)(a) applies to a communication between two or
more individuals and does not apply to a communication between an individual
and another of the entities listed in RCW 9.73.030(1).6 The communications at
issue in this case occurred between a single member of the putative class and an
automated website maintained by a corporation—SCH. The plaintiffs’ activities
on SCH’s website do not qualify, therefore, as a communication between two or
more individuals, and their WPA claim cannot succeed. 7
6
The entities listed in RCW 9.73.030(1) will often, of course, communicate through individuals. We need not, and do not, resolve whether the statute would apply when such communications are transmitted by a covered device and are between two or more individuals because those hypothetical facts are not conceivably raised by the complaint.
7
Because the plaintiffs do not challenge dismissal of their other claims—alleged violations of the Washington Consumer Protection Act and the Washington Uniform Health Care Information
9
Carly Baker et al. v. Seattle Children’s Hospital, No. 104590-5
Because we conclude that the claims, as pleaded, do not satisfy the “between
two or more individuals” requirement, we do not decide whether any
communications at issue constitute a “private communication” under RCW
9.73.030(1)(a).
CONCLUSION
We hold that the communications at issue do not constitute a communication
“between two or more individuals” under RCW 9.73.030(1)(a). Accordingly, we
affirm the trial court’s order dismissing the plaintiffs’ complaint.
Act, and claims for invasion of privacy, breach of implied contract, conversion, and unjust enrichment—our opinion does not address the sufficiency of those claims.
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Angelis, J.
WE CONCUR:
Melody, J.
11
No. 104590-5
GONZÁLEZ, J. (concurring in result)—A group of parents allege they clicked
links and typed terms into a search bar of the Seattle Children’s Hospital website
and software embedded in that website reported the activity to a third party in
violation of Washington’s privacy act. Our privacy act makes it unlawful to
intercept or record a “[p]rivate communication transmitted by telephone, telegraph,
radio, or other device between two or more individuals” without first obtaining the
consent of all participants. RCW 9.73.030(1)(a). I agree with the majority that the
trial court properly dismissed the claims based on RCW 9.73.030(1)(a) under CR
12(b)(6).
The parents’ allegations are not sufficient to overcome a motion to dismiss
because they have not pleaded that their private communications were transmitted
“between two or more individuals.” Id. I write separately, however, to stress that
the parents sufficiently allege private communications were transmitted.
Baker et al. v. Seattle Children’s Hospital, No. 104590-5 (González, J., concurring in result)
Unlike the majority, I would also recognize that private communications
transmitted between an individual and individuals working for a corporation are
protected by our privacy act. Therefore, I respectfully concur in result.
Questions of statutory interpretation are reviewed de novo. State v.
Wadsworth, 139 Wn.2d 724, 734, 991 P.2d 80 (2000). Our privacy act forbids the
interception or recording of private communications and conversations under
specific conditions:
(1) Except as otherwise provided in this chapter, 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;
(b) Private conversation, by any device electronic or otherwise
designed to record or transmit such conversation regardless how the
device is powered or actuated without first obtaining the consent of all
the persons engaged in the conversation.
RCW 9.73.030. This case involves an allegedly intercepted or recorded private
communication. I agree with the majority that the parents’ RCW 9.73.030(1)
claim does not survive because they do not allege their private communications
were transmitted between two or more individuals. Because of that result, the
majority does not address whether the parents sufficiently alleged a private
2
Baker et al. v. Seattle Children’s Hospital, No. 104590-5 (González, J., concurring in result)
communication was transmitted, but I would reach that issue. In my view, the
parents transmitted private communications on the hospital’s website, but they
directed those communications to a server that returned stored content and not to
another individual.
Carly Baker alleges she used the hospital website’s search bar and
“Conditions” page to search for medical conditions and symptoms. Janssen Ramos
Savoie alleges she used the search bar and the “Find A Doctor” page to search for
health care providers and medical specialists and to conduct searches on medical
conditions and symptoms. Amber Shavies alleges she searched for urgent care
facilities and their hours of operation. Each parent has a child who was a patient of
the hospital. Each of the parents had an account with Meta Platforms Inc., and
some of the parents recall later receiving health-related advertisements on
Facebook.
The parents allege that when they visited the hospital’s website, their
browsers sent “GET requests” to the hospital’s web server and the web server
returned http responses displaying the requested pages. A “GET request” is one of
the two principal types of http requests a browser sends to a website’s server. As
the complaint describes it, a GET request identifies the requested page by its URL,
can carry additional data embedded in that URL, and travels with any cookies the
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browser holds for the server it addresses. A “POST request,” by contrast, carries
data outside of the URL.
Because the hospital had embedded Meta Platforms’ Pixel code in its
website, the parents allege that the hospital’s http response delivered that code to
the browser, and the code then caused the browser to duplicate each GET request
and send the copy to Meta. A “cookie” is a text file stored on the visitor’s device
that can later be transmitted to a server. The parents allege that the Pixel places an
_fbp cookie on the device of every visitor to the hospital’s website, which permits
Meta to group that visitor’s requests under a single device identifier, and that Meta
separately placed a c_user cookie containing the numeric identifier for the visitor’s
Facebook account. They allege the Pixel transmits both cookies to Meta, and that
the c_user cookie is what allows Meta to attribute the request to a named account
rather than to an unidentified device.1
“There are four prongs we consider when analyzing alleged violations of the
privacy act.” State v. Roden, 179 Wn.2d 893, 899, 321 P.3d 1183 (2014). “There
must have been (1) a private communication transmitted by a device that was (2)
1
In responding to the hospital’s motion to dismiss, the parents disclaimed reliance on any Pixel activity occurring after a user signs in to the MyChart patient portal, stating that whether the Pixel continues to operate inside the portal “has no bearing on the adequacy of the allegations.” Clerk’s Papers at 74 n.5. I therefore do not address the complaint’s allegations that the hospital intercepted, recorded, and disclosed information exchanged inside the portal, including test results, messages to providers, and prescription refill requests. The parents did not abandon their allegation that the Pixel discloses a user’s patient status when the user navigates to the portal’s sign-in page.
4
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intercepted or recorded by use of (3) a device designed to record and/or transmit
(4) without the consent of all parties to the private communication.” Id. (citing
State v. Christensen, 153 Wn.2d 186, 192, 102 P.3d 789 (2004)). The first prong is
at issue here. Importantly, the circumstances of this case require clarifying that the
first prong’s private communication transmitted by a device must be “between two
or more individuals.” RCW 9.73.030(1)(a).
A “communication” is “‘the act . . . of imparting or transmitting’ or ‘facts or
information communicated.’” State v. Riley, 121 Wn.2d 22, 33, 846 P.2d 1365
(1993) (alteration in original) (quoting WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 460 (1986)). Under this definition, back-and-forth interactions are
not required. See also State v. Townsend, 147 Wn.2d 666, 670, 57 P.3d 255 (2002)
(“These communications from Townsend [to a fictitious child] were stored
automatically on [Detective] Keller’s computer. This enabled Keller to read the
messages at his leisure and to print them for later use as evidence.”). A
communication is private (1) when parties manifest a subjective intention that it be
private and (2) where that expectation is reasonable. Id. at 673; see also
Christensen, 153 Wn.2d at 193. 2
2
In determining whether a communication is private, it is generally sufficient to show the person communicated with a single recipient. See, e.g., Roden, 179 Wn.2d at 897 (private exchange of text messages); State v. Faford, 128 Wn.2d 476, 481-88, 910 P.2d 447 (1996) (private cordless telephone calls); Townsend, 147 Wn.2d at 671-79 (private e-mails and instant messages). A person claiming the protections of the act may need to show more than that to establish communications with a larger group are private. But private communications transmitted between more than two
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Baker et al. v. Seattle Children’s Hospital, No. 104590-5 (González, J., concurring in result)
Although the technological setting is different, the private communications
on a website are analogous to the private communications in State v. Gunwall, 106
Wn.2d 54, 720 P.2d 808 (1986). In Gunwall, this court held that the numbers
captured by a “pen register” were a private communication under RCW
9.73.030(1)(a). Id. at 69. A “pen register” is a device attached to telephone lines
or connections to identify local and long-distance numbers dialed. Id. at 63. The
court recognized that a pen register was “comparable in impact to electronic
eavesdropping devices” because it is “continuing in nature, may affect other
persons and can involve multiple invasions of privacy.” Id. at 69. In contrast, we
later held that a “line trap” did not intercept a private communication. Riley, 121
Wn.2d at 33-34. A “line trap” is a device placed by a telephone company to trace
telephone calls to their source. Id. Unlike a pen register, which recorded an
exchange of information (the dialing of one telephone number to another), a tracer
reveals only the telephone number of the dialing party. Id.; see also Roden, 179
Wn.2d at 901 (distinguishing a phone number displayed on a pager from a text
message sent on a mobile device, which is more like an e-mail exchange and
telephone call). The numbers captured in Gunwall were dialed to reach a person
on the other end of the line. That distinction matters here.
As presented, this case involves a public website’s links and search bar. A
individuals are protected by our privacy act. See RCW 9.73.030(1)(a).
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Baker et al. v. Seattle Children’s Hospital, No. 104590-5 (González, J., concurring in result)
click and a typed query each impart information: the user’s question or concern.
The server returns content responsive to it. Those clicks and queries could convey
what condition or symptom a parent was researching and which physician they
were looking for. The parents allege they expected these communications to
remain private. That expectation was reasonable on this record. The hospital’s
notice told patients it would not share their health information beyond the
disclosures it listed, and none of those disclosures are related to advertising. See
Clerk’s Papers (CP) at 9, 36. Whether a general cookie banner defeated that
expectation is not resolved by the pleadings. I would therefore hold that the
parents’ clicking and searching could constitute a private communication.
Nevertheless, like the majority, I would affirm the trial court’s CR 12(b)(6)
dismissal because the private communications were not transmitted between two or
more individuals. We take the complaint’s factual allegations as true and may
consider hypothetical facts supporting the claim. FutureSelect Portfolio Mgmt.,
Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014).
While I would normally be reluctant to dismiss a case presenting an issue of first
impression in a novel technological setting, no development of the record would
change the answer here. As argued, the parents’ private communications were
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Baker et al. v. Seattle Children’s Hospital, No. 104590-5 (González, J., concurring in result)
directed at a server that returned stored content and not at another individual. 3 It is
not enough to allege, as the parents have, that “a physical person can review the
communication at some point after it is received.” CP at 78.
Unlike the majority, I would recognize that private communications
transmitted between an individual and individuals working for a corporation are
protected by our privacy act. I agree with the parents that the structure of our
privacy act “leaves no room for a corporate carveout of liability.” Pet’r’s Suppl.
Br. at 22. A corporation acts only through individuals, and the corporate status of
the hospital does not tell us whether a private communication was transmitted
between two or more individuals.
A private communication sent or received by the hospital’s clinical staff
from a patient is protected by our privacy act because two or more individuals
would be involved in that exchange. Similarly, a message left by the patient on a
health provider’s voice mail or internal messaging system would be protected by
the privacy act even if it was not left for a specific staffer.
3
The parents allege source code “commands the website visitor’s browser to take certain actions when the webpage loads.” CP at 14. The transmission occurs “quietly in the background without notifying the web browser’s user.” Id. Meta’s code “sends secret instructions back to the individual’s browser, without alerting the individual.” Id. at 18. The hospital thereby “commandeer[s] the user’s computing device.” Id. at 23. Nowhere does the complaint allege that anyone read a parent’s query or that any query was directed to an individual.
Importantly, neither the majority nor I define the term “individual.” “[W]e have consistently interpreted [our privacy act’s] terms broadly.” Roden, 179 Wn.2d at 906. I note that the term “individual” may well include more than a natural person.
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Further, I am dubious of the majority’s application of the presumption that
the legislature intended different meanings when it uses two different terms in the
same statute here. Majority at 7-9. The majority draws on the enumeration in
subsection (1), which makes our privacy act’s prohibition applicable to “any
individual, partnership, corporation, association, or the state of Washington.”
RCW 9.73.030. But that list identifies who may violate the act. It does not tell us
who may be a party to the communication the act protects.
RCW 9.73.030 uses a variety of interrelated words. Subsection (1)(a) uses
“individuals” and then “participants.” Subsections (2) and (3) use “party” and
“parties engaged in the communication or conversation.” Subsection (4) uses
“speakers.” In such circumstances, the “different meanings” presumption loses
force. Likewise, subsection (1)(b) conditions lawfulness on the consent of “all the
persons engaged in the conversation.” If the term “person” extends to a
corporation, then the legislature contemplated a corporate consent-provider and a
corporate consent-provider-participant. The majority does not explain why a
corporation may consent to the recording of a conversation under subsection (1)(b)
but cannot be on one end of a communication under subsection (1)(a).
Whether the hospital owns and maintains the website is not part of the
analysis. Our privacy act does not ask who owned the equipment that carried the
communication. We need decide only whether the parents alleged that a private
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Baker et al. v. Seattle Children’s Hospital, No. 104590-5 (González, J., concurring in result)
communication was transmitted between two or more individuals. Having
disclaimed reliance on what occurred inside the patient portal, the parents are left
with clicks and searches typed into a public webpage. A message to a member of a
care team is not before us, nor is the application of our privacy act to a system that
does more than return stored content.
With these observations, I concur in result.
10