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

Massachusetts criminalizes secret audio recordings. Secretly recording a conversation is a felony under G.L. c. 272, § 99, punishable by up to five years in state prison, and the statute draws no distinction between a detective’s wire and the voice memo application on a phone. It applies to spouses and former partners, to landlords and tenants, to employees and their employers, and it applies inside a person’s own home. Section 99 is stricter than federal law and stricter than the law of most other states. Most people learn this after they have already pressed record.

The question arises often in domestic violence cases and in the abuse prevention and harassment prevention sessions that accompany them, where one side arrives with audio without understanding that making the recording and using it are separate offenses. Serpa Law Office defends wiretap charges, challenges recordings offered against clients, and advises people on both sides of a case before a recording is handed to police or played for a judge.

Secret Recording Is a Felony

Section 99 defines an unlawful interception as secretly hearing or secretly recording the contents of any wire or oral communication “through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” G.L. c. 272, § 99 B 4.

Willfully committing an interception, attempting one, or procuring another person to commit one is punishable by a fine of not more than $10,000, imprisonment in the state prison for not more than five years, or imprisonment in a jail or house of correction for not more than two and one half years. G.L. c. 272, § 99 C 1.

The Supreme Judicial Court settled long ago that the statute applies to private citizens and not only police. In Commonwealth v. Hyde, 434 Mass. 594 (2001), the Court affirmed the conviction of a motorist who secretly recorded his own traffic stop, holding that § 99 “strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter.”

The device is immaterial. A smartphone left face down and recording, a home camera with the microphone active, or a recorder running in a bag each becomes an intercepting device when it records a conversation in secret.

Hyde also identifies what makes Massachusetts stricter than most jurisdictions. The definition of oral communication in § 99 B 2 is simply “speech, except such speech as is transmitted over the public air waves by radio or other similar device.” Unlike the federal statute, it does not require that the speaker have an expectation of privacy. A conversation held in a public place is still protected against secret recording.

There is one significant statutory exception. The definition of interception in § 99 B 4 provides that it is not an interception for an investigative or law enforcement officer to record or transmit a communication where the officer is a party to it, or has prior authorization from a party, and the recording is made in the course of an investigation of a designated offense. Law enforcement may therefore record with one-party consent in that narrow category. See Commonwealth v. Burgos, 470 Mass. 133, 140 (2014).

The Test Is Knowledge, Not Consent

Massachusetts is routinely called a two-party consent state. That label is wrong. Section 99 does not require that everyone approve of the recording. It prohibits recording that is 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.

In Curtatone v. Barstool Sports, Inc., 487 Mass. 655 (2021), the interviewer misrepresented 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 recording in a pocket during an argument is a secret recording however justified the argument felt.

Knowledge may be actual or constructive. It is proved, in the Court’s words, “where there are clear and unequivocal objective manifestations of knowledge” in the speaker’s statements or conduct. Commonwealth v. Morris, 492 Mass. 498 (2023). Commonwealth v. Rainey, 491 Mass. 632 (2023), applies that principle to a recording that would otherwise look clandestine: a body-worn camera captured a victim’s report to police, and because she understood her statement was being memorialized in writing as she gave it, the footage “was not a clandestine recording precluded by the wiretap statute.”

The Supreme Judicial Court sharpened the element again in 2026. In Commonwealth v. Grimaldi, SJC-13842 (Mass. June 2, 2026), the Court held that willfulness under § 99 C 1 “requires not merely an intent to record, but rather an intent to secretly record, i.e., an intent to record someone without their knowledge.”

Applying that standard, the Court reversed a suppression order where State Police recorded a driver at a sobriety checkpoint: a large reflective roadside sign warned of audio and video recording, and troopers used body-worn cameras openly with visible indicator lights, so the interception was not willful even though the defendant may never have seen the sign.

Grimaldi matters to the defense of a § 99 charge because it locates the fight in the defendant’s state of mind rather than in the fact of the recording.

Federal law does not provide a defense. The federal wiretap act permits recording with one party’s consent, 18 U.S.C. § 2511(2)(d), but Massachusetts enforces its own statute in its own courts. Announcing a recording clearly and before it begins defeats secrecy. Anything less invites a complaint.

Disclosing or Using a Secret Recording Is a Separate Offense

The statute separately punishes anyone who willfully discloses or uses the contents of an unlawful interception, knowing where the contents came from. Section 99 C 3 makes that conduct “a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.”

Making the recording is the felony. Sending the file to a friend, playing it for a police officer, or attaching a transcript to a court filing is the separate misdemeanor.

There is civil exposure as well. Section 99 Q gives a person whose communications were unlawfully intercepted, disclosed, or used a civil action for “actual damages but not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher,” together with punitive damages and a reasonable attorney’s fee and litigation costs. The liquidated figure is a floor rather than an alternative. In a divorce, a custody dispute, or restraining order litigation, opposing counsel will know how to use that provision.

The Limits of Suppression

Clients assume an illegal recording cannot be used against them. The rule is narrower.

Section 99 P permits “any person who is a defendant in a criminal trial in a court of the commonwealth” to move to suppress the contents of an unlawfully intercepted communication or evidence derived from it. Standing exists even where a private party made the recording. Commonwealth v. Santoro, 406 Mass. 421 (1990).

What the Supreme Judicial Court held in Santoro is that the remedy does not follow automatically: “Section 99 does not, however, require the suppression of all communications intercepted in violation of its provisions. The Legislature has left it to the courts to decide whether unlawfully intercepted communications must be suppressed.” Where a private individual recorded the conversation and no police or governmental conduct was involved, “[n]o deterrent purpose would be served by suppressing the intercepted conversations.”

Commonwealth v. Rivera, 445 Mass. 119 (2005), followed Santoro on the same reasoning and denied suppression of a store surveillance recording, because “the police had no part in making, inducing, soliciting, or otherwise encouraging or abetting the making of the surveillance tape.” The Court described the balance as one the statute “delegates to the courts” to strike “in each individual case.” It did not decide whether the store owner had violated § 99.

Where police were involved, suppression is a real remedy. In Commonwealth v. Du, 495 Mass. 103 (2024), an undercover officer made warrantless audio and video recordings of drug transactions, and the Supreme Judicial Court held that the video had to be suppressed along with the audio.

The reason is the statute’s own definition: the contents subject to suppression include “any information concerning the identity of the parties to [the] communication or the existence . . . of that communication,” § 99 B 5, and the footage contained both. The video was suppressed as contents of the communication rather than as derivative evidence.

Two further limits apply. First, the suppression remedy belongs to criminal trials. The Supreme Judicial Court declined to extend it to probation violation proceedings in Rainey, 491 Mass. 632 (2023), because such a proceeding “is not a criminal trial.”

Second, a separate and stronger rule governs warrantless electronic surveillance inside a home. In Commonwealth v. Fini, 403 Mass. 567 (1988), the Court held that such surveillance violates art. 14 of the Massachusetts Declaration of Rights, following Commonwealth v. Blood, 400 Mass. 61 (1987), and that “the Commonwealth may not use the recorded conversations for impeachment purposes irrespective of whether the conversations dealt with collateral matters or directly with the crimes charged.”

That is a constitutional exclusion for all purposes, and it is tied to the private-home setting rather than to every § 99 violation. Fini preserves one thing for the Commonwealth: a participant in the conversation may still testify from memory.

A person who made a secret recording may have committed a felony, and the recording may still be played to a jury.

Domestic Violence Cases and 209A and 258E Hearings

Domestic violence cases and the abuse prevention and harassment prevention sessions that accompany them produce more secret recordings than any other area of practice. People record to protect themselves, to prove what a household sounds like, to capture a threat or a recantation. Then they bring the file to court.

The civil sessions compound the problem. A hearing under c. 209A or c. 258E is not bound by the strict rules of evidence. “[T]he rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. 592 (1995). A judge therefore has discretion to consider a recording that would draw sustained objections at a criminal trial, and the suppression remedy in § 99 P speaks to criminal trials.

Frizado also establishes that the plaintiff must prove the case for relief by a preponderance of the evidence, and that a defendant has a general right to cross-examine the witnesses against him, subject to the judge’s discretion to limit it for good cause. Both points bear on how a recording offered at such a hearing is met.

Playing it in open court is a disclosure or use of an unlawful interception under § 99 C 3, and the civil action under § 99 Q follows the same conduct. The exposure runs against whoever made and used the recording, the plaintiff in one case and the defendant in another.

Recordings also interact with the witness statutes. Playing a secret recording to a reluctant witness, or threatening to release one, can support a charge of intimidation of a witness under G.L. c. 268, § 13B, for which the maximum sentence is substantially longer than for the wiretap offense. A recording should be reviewed by counsel before it goes near a c. 209A hearing or a criminal case.

Divorce, DCF, Employment, and the Telephone

The wiretap statute is not a domestic violence rule. It covers every setting in which one person decides to build a record of another.

Divorce and custody litigation. Spouses record arguments, exchanges of children, and telephone calls, intending to hand the audio to a family law attorney. Making the recording is a felony, filing or playing it in the Probate and Family Court is the separate offense of use, and the recorded spouse holds a civil claim under § 99 Q.

Department of Children and Families matters. A report under c. 119, § 51A brings investigators, interviews, and supervised contact, and parents often begin recording home visits, exchanges, and calls with the other household. A parent who announces the recording is protected by the announcement. A parent who records secretly has handed the department, and the other parent, an offense to report. The investigation then proceeds alongside the criminal case on its own timetable.

Employment disputes. Employees record human resources meetings, performance reviews, and calls with supervisors to document mistreatment or to guard against a termination, and employers record workers. The motive and the merits of the underlying dispute are immaterial under the statute. A secretly recorded meeting is an interception, sending the file to a lawyer or an agency is a use, and every coworker captured on the recording holds a claim under § 99 Q. The announced business line is the model that complies. A recorded announcement creates knowledge, and knowledge defeats secrecy.

Telephone calls. Section 99 covers wire communications expressly, so a recorded call is within the statute whatever application made it.

Home Cameras, Doorbells, and Smart Devices

The fastest growing source of exposure under § 99 is not a hidden recorder. It is the security system a family installed on purpose. Doorbell cameras, indoor cameras, baby monitors, and smart speakers capture audio as well as video, and they capture it continuously.

Video standing alone generally falls outside § 99, which covers wire and oral communications, meaning sound. The audio track is different, because it is a recording of every conversation within range of the microphone.

Whether that audio is unlawful turns on the same question as everything else under the statute, which is secrecy. A household member who knows the camera records sound is not being secretly recorded. A guest who does not know, or a spouse who was never told the indoor camera remained on, presents the harder case.

The reported authority is not uniformly favorable on this point. In Rivera, a concurring justice wrote that store surveillance cameras in plain view were not the kind of secret eavesdropping the statute prohibits, and that “[t]hat the defendant did not know the camera also included an audio component does not convert this otherwise open recording into the type of ‘secret’ interception prohibited by the Massachusetts wiretap statute.”

The majority did not decide that question. Given Morris and Rainey, which recognize constructive knowledge from objective manifestations, a person who plainly knew a camera was operating may have a harder argument than the language of the statute alone suggests.

Searching a camera archive for audio of an argument and attaching it to a c. 209A affidavit is a use of an intercepted communication under § 99 C 3 if the audio was secretly captured, with the civil exposure of § 99 Q behind it. For a household whose devices record indoors, the safe course is to confirm that every adult in the home knows the microphones are active, or to disable the audio. Video of a doorway rarely needs sound.

Recording the Police

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 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 concerns police accountability in public. It does not license secret recording of civilians, or of anyone in a private setting, and openness remains the safe course everywhere. An announced recording violates nothing. The boundary between protected expression and criminal prosecution is examined further in the discussion of criminal harassment, 258E orders, and the First Amendment.

Defending a Section 99 Charge

People are charged under § 99 in the Massachusetts District Courts more often than they expect, frequently after handing the recording to police themselves. The charge is defensible. Willfulness, secrecy, and knowledge are all contested elements, and after Grimaldi the willfulness element requires proof of an intent to record someone without that person’s knowledge. The paths to ending a case are the same paths that govern any Massachusetts criminal dismissal.

When a recording is offered against a client, the questions begin with foundation: who made it, how it was edited, and what happened before the excerpt begins.

If police had any role in an unlawful interception, suppression under § 99 P is available, and the art. 14 rule of Fini applies if the surveillance occurred inside a home. If a private party made the recording, it may be admitted, but that person’s criminal exposure and the civil action under § 99 Q become part of the defense calculus.

Where police have seized the phone itself, a separate body of law governs what they may search, set out at phone, computer, and digital device searches.

When a client wants to use a recording, the analysis begins with § 99 rather than with how damaging the audio is. There is usually a lawful way to prove the same fact, through testimony, metadata, certified records, or the other side’s own filings, without converting the person holding the phone into a defendant.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995, in courtrooms where these recordings now appear regularly. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy office is at 25 Braintree Hill Office Park Suite 200A. Short answers to common questions are collected in the Massachusetts wiretap and secret recording FAQs, and the blog examines how secret recordings play out in domestic violence and 209A cases.