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. The statute makes no distinction between a detective’s wire and the voice memo application on a phone.

The statute applies to spouses and former partners, to landlords and tenants, to employees and their employers, and to conversations 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 that secret recording is a felony in Massachusetts after they have already recorded a conversation.

Recording a meeting or phone call with an AI note taker, without the knowledge of every person in the conversation, is also a secret recording under the wiretap statute, G.L. c. 272, § 99. The firm’s page on AI crimes in Massachusetts explains the wiretap charge for a recording made with an AI note taker.

Questions about secret recordings arise often in domestic violence cases and in the related hearings on abuse prevention orders and harassment prevention orders. One party often arrives in court 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.

Section 99 makes it a crime to willfully commit an interception, to attempt one, or to procure another person to commit one. A person convicted of that crime faces a fine of up to $10,000, up to five years in the state prison, or up to two and one half years in a jail or house of correction. G.L. c. 272, § 99 C 1.

The Supreme Judicial Court has held that the statute applies to private citizens and not only to police. In Commonwealth v. Hyde, 434 Mass. 594 (2001), the Court affirmed the conviction of a motorist who secretly recorded his own traffic stop.

The Court held 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 type of recording device is immaterial under § 99. 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.

In Hyde, the Supreme Judicial Court also identified what makes Massachusetts law stricter than the law of 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, § 99 does not require that the speaker have an expectation of privacy. A conversation held in a public place is still protected against secret recording.

The definition of interception in § 99 B 4 excludes a recording or transmission by an investigative or law enforcement officer who is a party to the communication or has prior authorization from a party.

The exclusion applies only if the officer makes the recording in the course of an investigation of a designated offense. Law enforcement officers may therefore record with one-party consent in that narrow category of investigations. See Commonwealth v. Burgos, 470 Mass. 133, 140 (2014).

The Test Is Knowledge, Not Consent

Massachusetts is routinely called a two-party consent state. The two-party consent label is wrong. Section 99 does not require that everyone approve of the recording. The statute 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, whether or not they consented.

In Curtatone v. Barstool Sports, Inc., 487 Mass. 655 (2021), the interviewer misrepresented who he was. The recording was still lawful, because the speaker knew the call was being recorded. Lying about identity does not make a recording secret. A good reason for recording does not make a hidden recording lawful. A phone recording in a pocket during an argument is a secret recording, even if the person recording felt justified in making it.

Knowledge of the recording may be actual or constructive. Knowledge 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).

In Commonwealth v. Rainey, 491 Mass. 632 (2023), the Court applied the rule on objective manifestations of knowledge to a recording that would otherwise look clandestine. A body-worn camera captured a victim’s report to police.

The victim understood that her statement was being memorialized in writing as she gave it. The Court therefore concluded that the footage “was not a clandestine recording precluded by the wiretap statute.”

The Supreme Judicial Court clarified the willfulness element of § 99 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.”

In the same case, the Court applied the willfulness standard to a recording that State Police made of a driver at a sobriety checkpoint. A large reflective roadside sign warned of audio and video recording. Troopers used body-worn cameras openly, with visible indicator lights. The Court therefore held that the interception was not willful, even though the defendant may never have seen the sign, and reversed a suppression order.

Under Grimaldi, the defense of a § 99 charge can focus on the defendant’s state of mind rather than on the fact of the recording.

Federal law does not provide a defense to a § 99 charge. 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. A recording that is announced clearly before it begins is not secret. A person who records without a clear advance announcement risks a criminal 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 disclosure or use “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 a secret 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.

Section 99 also creates civil liability. Section 99 Q gives a person whose communications were unlawfully intercepted, disclosed, or used a civil action. The award is “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,” plus punitive damages and a reasonable attorney’s fee and litigation costs.

The liquidated amount is the minimum award, not an alternative to actual damages. In a divorce, a custody dispute, or restraining order litigation, opposing counsel will know how to use the civil action under § 99 Q.

Illegally Obtained Recordings Can Sometimes Still Be Used in Court

Massachusetts courts do not automatically exclude a recording solely because a private person violated G.L. c. 272, § 99 when making it. A judge’s decision on suppression depends on who made the recording, whether police participated, whether federal law was violated, and the type of proceeding. The firm’s separate guide explains how courts treat secretly recorded evidence. The guide covers criminal trials, probation and protective-order hearings, federal Title III, impeachment, authentication, hearsay, and completeness.

Domestic Violence Cases, 209A Restraining Order Hearings, and 258E Harassment Prevention Order Hearings

Secret recordings come up more often in domestic violence cases and in the related hearings on abuse prevention orders and harassment prevention orders than in any other area of practice. People record to protect themselves, to prove what goes on in a household, or to capture a threat or a recantation. Then they bring the file to court.

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. The suppression remedy in § 99 P applies to criminal trials.

In Frizado, the Supreme Judicial Court also held that the plaintiff must prove the case for relief by a preponderance of the evidence. In the same decision, the Court held that a defendant has a general right to cross-examine the witnesses against him, subject to the judge’s discretion to limit cross-examination for good cause.

The plaintiff’s burden of proof and the defendant’s right to cross-examine both affect how a defendant responds to a recording offered at a hearing under c. 209A or c. 258E.

Playing a secret recording in open court is a disclosure or use of an unlawful interception under § 99 C 3. The person who plays the recording can also be sued under § 99 Q. The person who made and used the recording can face a criminal charge and a civil lawsuit, whether that person is the plaintiff or the defendant at the hearing.

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. The maximum sentence for witness intimidation is substantially longer than the maximum sentence for the wiretap offense. Counsel should review a recording before anyone uses it at a c. 209A hearing or in a criminal case.

Divorce, DCF, Employment, and the Telephone

The wiretap statute applies in domestic violence cases and in every other setting in which one person decides to record 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 a secret recording of a spouse is a felony. Filing or playing the recording in the Probate and Family Court is the separate offense of use. The recorded spouse also has a civil claim under § 99 Q.

Department of Children and Families matters. A report under c. 119, § 51A results in an investigation, interviews, and supervised contact. Parents often begin recording home visits, exchanges, and calls with the other household.

A parent who announces the recording has not made a secret recording. A parent who records secretly has committed an offense that the department and the other parent can report to police. The department’s investigation then continues on its own schedule while the criminal case proceeds.

Employment disputes. Employees record human resources meetings, performance reviews, and calls with supervisors to document mistreatment or to guard against a termination. Employers also 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 of an unlawful interception. Every coworker captured on the recording has a claim under § 99 Q. A business line that announces the recording complies with the statute. A speaker who hears a recorded announcement knows about the recording, so the recording is not secret.

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

Home Cameras, Doorbells, and Smart Devices

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

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.

The question whether the camera’s audio is unlawful depends on secrecy, the same element that applies to every other recording under the statute. A household member who knows the camera records sound is not being secretly recorded. A guest who does not know that the camera records sound, or a spouse who was never told that the indoor camera remained on, may have been secretly recorded.

The reported authority is not uniformly favorable to a person who did not know that a camera recorded sound. In Rivera, a concurring justice wrote that store surveillance cameras in plain view were not the kind of secret eavesdropping the statute prohibits.

The concurring justice added 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 opinion did not decide whether the audio component made the store recording a secret interception. In Morris and Rainey, the Supreme Judicial Court recognized constructive knowledge based on objective manifestations. A person who plainly knew a camera was operating may therefore have a harder argument that the audio was secret than a reading of the statute’s words alone would indicate.

Searching a camera archive for audio of an argument and attaching the audio to a c. 209A affidavit is a use of an intercepted communication under § 99 C 3 if the audio was secretly captured.

The person who attaches the audio can also be sued under § 99 Q. 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. A camera aimed at a doorway can serve its purpose without recording sound.

AI Wearables and Ambient Listening

AI watches, earbuds, smart glasses, pins, pendants, and other body-worn assistants can receive speech without creating a conventional audio file. Apple has announced Watch features that process nearby speech into a summary or a 15-second text snippet and then delete the underlying audio.

AirPods can provide microphone input to a paired device for recording or translation. Meta glasses can record video with sound and use microphones for AI functions. Section 99 defines an intercepting device as equipment capable of transmitting, receiving, amplifying, or recording a communication.

Section 99 also defines interception to include secretly hearing as well as secretly recording. No Massachusetts appellate court has decided in a reported decision whether temporary audio processing that produces text is an interception.

A person who activates a feature that processes speech into text, without the speakers’ actual or constructive knowledge, nevertheless takes a substantial risk under the statute. Readers can review the distinctions among these products in Apple Watch AI, Meta Glasses, and Other Wearables Under Massachusetts Wiretap Law.

A device’s notice features may affect both secrecy and willfulness. Live Rewind sounds a chime and displays an animation when the wearer requests the preceding 15 seconds of text, after the speech has entered the temporary buffer. Meta’s capture LED continues blinking throughout video recording.

In Commonwealth v. Grimaldi, 497 Mass. 615 (2026), the Supreme Judicial Court concluded that troopers did not intend to record secretly. The Court relied on a warning sign, openly worn body cameras, visible recording lights, and the brightly lit setting.

The Court did not decide whether the recording itself was secret. Clear advance notice remains the prudent practice before a device hears, records, transcribes, translates, or summarizes another person’s words.

Recording the Police

Different rules apply under the First Amendment when the person recorded 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.

In Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), the First Circuit held that § 99 cannot constitutionally be applied to the secret audio recording of officers discharging their duties in public spaces.

The First Amendment protection for recording officers concerns police accountability in public. The First Amendment protection does not cover secret recording of civilians, or of anyone in a private setting. Recording openly remains the safe course everywhere. A recording that is announced in advance does not violate § 99. The boundary between protected expression and criminal prosecution is examined further in the discussion of criminal harassment, 258E harassment prevention 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. A § 99 charge is defensible. Willfulness, secrecy, and knowledge are all contested elements. After Grimaldi, the willfulness element requires proof of an intent to record someone without that person’s knowledge. The rules for ending a § 99 case are the same rules that govern any Massachusetts criminal dismissal.

The defense questions about a recording offered against a client begin with the foundation of the recording, including who made it, how it was edited, and what happened before the excerpt begins.

Suppression under § 99 P is available if police had any role in an unlawful interception. The art. 14 rule of Fini also applies if the surveillance occurred inside a home. A recording made by a private party may be admitted, but defense counsel then weighs that person’s criminal exposure and the civil action under § 99 Q in planning the defense.

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

Counsel advising a client who wants to use a recording 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 exposing the person holding the phone to a criminal charge.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995, in courtrooms where secret recordings 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 500 Victory Road, Suite 400A. Short answers to common questions are collected in the Massachusetts wiretap and secret recording FAQs. The blog examines how secret recordings are used in domestic violence cases and at 209A restraining order hearings.