In the Commonwealth of Massachusetts, strict laws govern the recording of conversations and the use of surveillance equipment. Whether you’re recording a phone call, documenting an event, or capturing video footage, understanding the legal framework is essential to avoid significant legal and financial penalties.
Court cases have shown that the Bay State makes few exceptions when it comes to enforcing these laws. It makes no difference whether you are recording someone purely for self-serving reasons or recording a potential crime taking place. You simply cannot record someone without their permission in Massachusetts.
This blog explores Massachusetts’ two-party consent law, its implications for various recording situations, and what you need to know about compliance.
Massachusetts State Law
Massachusetts is a two-party consent state, meaning all parties involved in a conversation must consent to being recorded. This applies to wire, oral, and electronic communications, making it illegal to secretly record a conversation even in public settings.
One state appellate court has held that the all-party consent rule applies whether the conversation is held in private or a public location. See Massachusetts v. Manzelli, 864 N.E.2d 566 (Mass. App. Ct. 2007).
Telephone and Electronic Communications
Massachusetts makes it a felony to use a device to hear or record any telephone call unless all parties give their consent. Mass. Gen. Laws ch. 272, § 99(C). This includes phone calls and text messages made via cell phone. Massachusetts v. Moody, 993 N.E.2d 715 (Mass. 2013).
The law only applies to secret recordings, however, so affirmative consent is not necessary when all parties are aware of the recording. Curtatone v. Barstool Sports, Inc., 169 N.E.3d 480, 483 (Mass. 2021).
Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.
Hidden Cameras
Massachusetts law prohibits secretly recording individuals in private settings, such as bathrooms or changing rooms, where there is a reasonable expectation of privacy. Any surveillance without consent in these situations can result in severe penalties, including imprisonment and fines.
A person cannot photograph, film or use any electronic device to secretly view another person in the nude without consent in areas where the subject would have a reasonable expectation of privacy. Mass. Gen. Laws ch. 272, § 105(b).
The law also prohibits the secret photographing, filming or using a device to view a person’s intimate body parts either under or around the person’s clothing or when the person would reasonably expect it not to be visible by the public.
State Penalties
Illegally eavesdropping or recording on an in-person or telephone conversation is punishable by a fine of up to $10,000 and a jail sentence of up to five years. Mass. Gen. Laws ch. 272, § 99(C). Disclosing or using the contents of such communications is a misdemeanor punishable with a fine of up to $5,000 and imprisonment for up to two years.
Civil Suits
The court may award actual and punitive damages, as well as reasonable attorney’s fees and litigation costs, to anyone whose private communications were recorded, disclosed or used in violation of the state’s eavesdropping law. Mass. Gen. Laws ch. 272, § 99(Q). Actual damages would be no less than $100 per day for each day of violation, or $1,000. Id.
First Amendment
A growing consensus of federal courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recordings.
The U.S. Court of Appeals for the First Circuit, which includes Massachusetts, has held that there is a First Amendment right to record “government officials in public spaces.” Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir. 2011). This includes filming and audio recording “police carrying out their duties in public,” such as during traffic stops, so long as the officer cannot “reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.” Gericke v. Begin, 753 F.3d 1, 7–8 (1st Cir. 2014).
While federal rulings protect the recording of public officials performing their duties under the First Amendment, Massachusetts law prohibits secretly recording such interactions, making explicit consent crucial.
Interstate Conversations
For interstate conversations, Massachusetts’ two-party consent law still applies if one participant is located within the state. Ensure compliance by obtaining clear consent from all parties involved.
Public Meetings
Massachusetts open meetings law expressly permits sound and video recording of public meetings (i.e., meetings of a governmental body required to be open to the public by law), except for executive sessions, by anyone in attendance.
Federal Law
Under federal law, only one-party consent is required to record a conversation. However, Massachusetts’ stricter two-party consent law supersedes federal guidelines within state boundaries. For recordings involving interstate communication, it’s safest to adhere to Massachusetts’ rules to avoid conflicts with stricter regulations.
Admissibility in Court
Illegally recorded conversations are generally suppressed from evidence in criminal cases, although exceptions apply. In civil law cases, blanket suppression of illegal recordings is not always the rule, but the Massachusetts statute includes punishment for the knowing use or disclosure of an illegal recording, creating big risks for those seeking to play illegal recordings for a judge. However, recordings that comply with all legal requirements, such as those created with the express consent of all parties, may serve as valuable evidence.
Massachusetts courts permit the media to record certain courtroom proceedings with prior approval, subject to limitations.
Conclusion
Massachusetts’ recording laws prioritize privacy and transparency, making compliance critical for anyone seeking to record conversations or video footage. Whether you are navigating personal, professional, or legal situations, it is wise to consult an experienced attorney to help understand the state’s two-party consent law and avoid severe penalties.
