Secret Recordings and the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99)

Massachusetts has one of the strictest recording laws in the country. G.L. c. 272, § 99 — the Massachusetts wiretap statute — makes it a felony to secretly record a conversation, and it draws no distinction between a detective’s wire and the voice-memo app on a phone. It applies to spouses and former partners, to landlords and tenants, to employees and their bosses, and it applies inside your own home. Most people learn all of this after they have already pressed record.

The statute surfaces constantly in domestic violence cases and in the abuse prevention and harassment prevention order sessions that travel with them, where one side arrives with audio of the other and no idea that the recording is itself a crime. Serpa Law Office defends wiretap charges, challenges recordings offered against clients, and counsels people — alleged victims and defendants alike — before they hand a recording to the police or play one for a judge. Call 617.936.0201 before anyone hears it.

Secret Recording Is a Felony in Massachusetts

Section 99 defines an unlawful interception as secretly hearing or secretly recording the contents of any wire or oral communication without prior authority from all parties to it. Willfully making such a recording, or getting someone else to make one, is punishable by up to five years in state prison, or up to two and a half years in jail, and a fine of up to $10,000. G.L. c. 272, § 99 C 1.

The Supreme Judicial Court settled long ago that the statute reaches private citizens, not just police. In Commonwealth v. Hyde, 434 Mass. 594 (2001), the Court affirmed the conviction of a motorist who secretly taped his own traffic stop. If the statute covers a driver recording an officer on a public road, it covers a partner recording an argument in the kitchen. The device does not matter. A smartphone left face-down and recording, a home camera with the microphone on, a recorder running in a bag — each is an “intercepting device” once it captures a conversation in secret.

The Test Is Knowledge, Not Consent

Massachusetts is routinely called a “two-party consent” state. The label misleads. The statute does not ask whether everyone approved of the recording; it asks whether the recording was secret. The Supreme Judicial Court held in Commonwealth v. Jackson, 370 Mass. 502 (1976), that there is no secret interception where the parties have actual knowledge that they are being recorded, consent or no consent.

Curtatone v. Barstool Sports, Inc., 487 Mass. 655 (2021), makes the point vividly. The interviewer lied about who he was, and the recording was still lawful, because the speaker knew the call was being recorded. Deception about identity is not secrecy about recording. The rule cuts the other way with equal force: a phone in a pocket during an argument is a secret recording no matter how justified the argument made it feel, and the Court applies the same knowledge standard today. Commonwealth v. Morris, 492 Mass. 498 (2023).

Federal law rescues no one here. The federal wiretap act permits recording with one party’s consent, 18 U.S.C. § 2511(2)(d), but Massachusetts enforces its own stricter statute in its own courts, and the federal rule is no defense to a § 99 charge. Announcing a recording — clearly, before it begins — defeats secrecy. Anything less invites a felony complaint.

Using or Sharing a Secret Recording Is a Second Crime

The statute separately punishes anyone who willfully discloses or uses the contents of an unlawful interception, knowing where they came from. G.L. c. 272, § 99 C 3. That is its own offense, carrying up to two years in jail and a $5,000 fine. Recording the conversation is one crime; texting the file to a friend, playing it for a police officer, or attaching a transcript to a court filing is another.

There is civil exposure as well. Section 99 Q gives anyone whose words were unlawfully intercepted, disclosed, or used a civil action for actual damages or liquidated damages of $100 per day of violation or $1,000, whichever is greater, plus punitive damages and attorney’s fees. In a divorce, a custody fight, or restraining order litigation, that is a loaded weapon lying on the table.

Suppression Is Narrower Than People Expect

Clients assume an illegal recording cannot be used against them. The actual rule surprises everyone. Section 99 P lets a defendant move to suppress the contents of an unlawful interception, but the Supreme Judicial Court has confined that remedy to interceptions the government had a hand in. Where a private person made the recording illegally, on their own, the evidence is generally admissible in a criminal case. Commonwealth v. Santoro, 406 Mass. 421 (1990). The Court admitted a store camera’s unlawful audio in a murder trial on exactly that reasoning, Commonwealth v. Rivera, 445 Mass. 119 (2005), and the Appeals Court reaffirmed the rule in Commonwealth v. Barbosa (2025).

When police are involved in the violation, suppression has real teeth. Illegally intercepted communications cannot be used at all, not even to impeach a witness, Commonwealth v. Fini, 403 Mass. 567 (1988), and in Commonwealth v. Du, 495 Mass. 103 (2024), the Court suppressed unlawfully intercepted audio along with the video footage derived from it. These motions live in the same world as motions to suppress unlawful searches and seizures, and they are litigated with the same rigor.

Two more limits matter. The suppression remedy belongs to criminal trials; the Supreme Judicial Court declined to extend it to probation violation hearings in Commonwealth v. Rainey, 491 Mass. 632 (2023). And the rule admitting private illegal recordings is under active challenge — the SJC has been asked, in a pending case involving audio from a home smart device, to reconsider Santoro and Rivera. As of this writing they remain the law. The practical summary is uncomfortable but accurate: the person who made the secret recording committed a felony, and the recording may still be played to a jury.

Domestic Violence Cases and 209A/258E Hearings

No corner of criminal practice produces more secret recordings than domestic violence cases and the 209A abuse prevention and 258E harassment prevention sessions that accompany them. People record to protect themselves, to prove what the household really sounds like, to capture a threat or a recantation. Then they bring the file to court.

The civil order sessions compound the problem. A 209A or 258E hearing is not bound by the strict rules of evidence; fairness is the governing standard, Frizado v. Frizado, 420 Mass. 592 (1995), and a judge has discretion to consider a recording that would draw sustained objections at a criminal trial. The suppression remedy in § 99 P speaks to criminal proceedings. So the recording may well be heard — and the person who offered it has just disclosed an unlawful interception in open court. Winning a restraining order that way can cost a felony complaint. The exposure runs against whoever made and used the recording: the alleged victim in one case, the defendant in another.

Recordings also interact badly with the witness statutes. Playing a secret recording to a reluctant witness, or threatening to release one, can become intimidation of a witness — a separate felony — faster than people expect. Before a recording goes anywhere near a 209A hearing or a criminal case, it needs legal review.

The Legislature may narrow this rule for exactly these cases. A pending bill, Senate No. 1215, would amend § 99 to exempt recordings made to document threats, harassment, or other crimes in divorce and child custody matters and in connection with 209A and 258E orders, and would permit their disclosure, with the burden on the person who recorded to prove the exemption. It cleared the Judiciary Committee in the fall of 2025 but has not become law. Unless and until it does, the statute applies with full force to alleged victims and defendants alike.

Ring Cameras, Doorbells, and Home Smart Devices

The fastest-growing source of wiretap exposure is not a hidden recorder. It is the security system a family installed on purpose. Ring doorbells, indoor cameras, baby monitors, and smart speakers capture audio as well as video, and they capture it continuously. The video, standing alone, generally falls outside § 99, which reaches wire and oral communications — meaning sound. The audio track is different: it is a recording of every conversation within range of the microphone.

Whether that audio is a crime turns on the same question as everything else under § 99: secrecy. A household member who knows the camera records sound is not being secretly recorded. A guest who has no idea, or a spouse who was never told the indoor camera stayed on, may be. A doorbell in plain view may put a visitor on notice of video, but the statute turns on actual knowledge, and knowledge of a camera is not always knowledge of a microphone. These are exactly the recordings now reaching the appellate courts; the pending SJC challenge to the private-recording rule involves home smart-device audio offered in a criminal trial.

The practice problems are concrete. Combing a Ring archive for audio of an argument and attaching it to a 209A affidavit is a use of an intercepted communication under § 99 C 3 if the audio was secretly captured, with the civil damages of § 99 Q trailing behind. For anyone whose devices record inside a shared home, the advice is unglamorous: make sure every adult in the house actually knows the microphones are on, or turn the audio off. Security video of a doorway rarely needs sound.

Recording the Police Stands on Different Footing

The First Amendment changes the analysis when the subject is a police officer performing official duties in public. The First Circuit held in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that openly recording officers in a public place — a sidewalk, a common, a traffic stop — is protected, and in Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), that § 99 cannot constitutionally be applied to the secret audio recording of officers discharging their duties in public spaces. That protection is about police accountability in public. It does not license secret recording of civilians, or of anyone in a private setting, and openness remains the safe rule everywhere: an announced recording violates nothing.

What This Means for Your Case

People are charged under § 99 in the Massachusetts District Courts more often than they expect, usually after handing the evidence to the police themselves. A wiretap charge is defensible. Willfulness, secrecy, and knowledge are all elements with room to fight, and the paths to ending the case are the same rigorous paths that govern any Massachusetts dismissal.

When a recording is offered against a client, the questions start with foundation: who made it, how it was edited, what happened before the clip begins. If police had any role in an unlawful interception, suppression under § 99 P is on the table. If a private party made it, the recording may come in — but the maker’s felony exposure, and the civil action that follows it, become part of the defense calculus. When the police have seized the phone itself, a separate body of law controls what they may search, covered on our page on phone, computer, and digital searches.

And when a client wants to use a recording, the answer starts with § 99, not with how damning the audio is. There is usually a lawful way to prove the same fact — testimony, metadata, certified records, the other side’s own filings — without converting the person holding the phone into a defendant.

Attorney Joe Serpa has defended Massachusetts criminal cases for thirty years, in courtrooms where these recordings now appear daily. If a secret recording sits anywhere near your case — yours or theirs — call 617.936.0201 for a free, confidential consultation before it gets played. Short answers to the most common questions are collected in our Massachusetts wiretap and secret recording FAQs, and the blog examines how secret recordings play out in domestic violence and 209A cases.