Massachusetts Wiretap and Secret Recording FAQs

The label is common and misleading. G.L. c. 272, § 99 punishes secret recording, not unconsented recording. If everyone in the conversation actually knows it is being recorded, there is no interception — even if nobody agreed, and even if the recorder lied about who he was. Curtatone v. Barstool Sports, Inc., 487 Mass. 655 (2021). Knowledge is the test. The full analysis is on our Massachusetts wiretap law page.

Yes. Secretly recording any conversation is a felony punishable by up to five years in state prison, and the statute applies to private citizens in their own homes. Commonwealth v. Hyde, 434 Mass. 594 (2001). There is no exception for couples, exes, or domestic violence cases, however protective the motive.

A judge might listen to it — the rules of evidence are relaxed in 209A and 258E sessions — but offering it is dangerous. Using or disclosing a secret recording is a separate crime under § 99 C 3, and it creates civil liability for damages and attorney’s fees under § 99 Q. Get legal advice before the file leaves your phone.

Usually yes. Suppression under the wiretap statute targets government misconduct, so recordings made illegally by private individuals acting alone generally come into evidence in criminal cases. Commonwealth v. Santoro, 406 Mass. 421 (1990); Commonwealth v. Rivera, 445 Mass. 119 (2005). The SJC has been asked to revisit that rule in a pending case, but it is the law today — and the person who made the recording still faces prosecution.

When law enforcement had a hand in the unlawful interception. Then the remedy is sweeping: the contents cannot be used at all, even to impeach a witness, Commonwealth v. Fini, 403 Mass. 567 (1988), and video derived from tainted audio falls with it, Commonwealth v. Du, 495 Mass. 103 (2024). Recordings the police obtain by searching a phone raise separate issues, covered on our digital searches page.

It can. Ring doorbells, indoor cameras, baby monitors, and smart speakers record audio as well as video, and § 99 reaches secretly recorded conversations no matter the device. Household members and guests who do not actually know a microphone is running may be secretly recorded. If the audio serves no purpose, turn it off; if it stays on, make sure every adult in the house knows.

Not without advice. If the audio was captured secretly, playing it at a hearing or handing it to the police is itself a use of an unlawful interception under § 99 C 3, separate from the original recording. Judges in restraining order sessions may consider it anyway — which is exactly how people win an order and buy themselves a criminal complaint.

Generally no. Section 99 governs wire and oral communications — sound and speech. Silent video raises other legal issues, but it is not an interception. The moment a microphone is involved, the analysis changes completely, and most modern home devices ship with the microphone on.

Openly, yes. Recording officers performing their duties in public is protected by the First Amendment. Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). The First Circuit has also held § 99 unenforceable against the secret recording of police doing their jobs in public spaces. Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020). That protection concerns public police work; it does not extend to secretly recording civilians.

Secret recording is a felony carrying up to five years in state prison, or up to two and a half years in jail, and a $10,000 fine. Disclosing or using an unlawful recording carries up to two years and $5,000. Section 99 Q adds civil liability: $100 per day of violation or $1,000, whichever is greater, plus punitive damages and attorney’s fees. Charges are heard in the Massachusetts District Courts and, for the felony, the Superior Court.

Federal law does, 18 U.S.C. § 2511(2)(d), but that is no defense in a Massachusetts prosecution. Massachusetts enforces its own stricter statute in its own courts, and a recording that would be legal elsewhere can still be a felony here.

Treat it as both a threat and an opportunity. The recording may be admissible, but its maker committed a felony and faces civil damages, and a recording used to pressure you or another witness can amount to intimidation of a witness. How this plays out in practice is on the blog: secret recordings in Massachusetts domestic violence and 209A cases. Call 617.936.0201 before you respond to it.

Possibly. A pending bill, Senate No. 1215, would create a defense for recordings made to document threats, harassment, or other crimes in divorce, custody, and 209A/258E matters, and would permit their disclosure. It advanced out of the Judiciary Committee in late 2025 but has not become law. Unless it passes, secret recordings remain felonies for everyone, whatever the motive.