Massachusetts Wiretap and Secret Recording FAQs

That label is wrong. G.L. c. 272, § 99 punishes secret recording, not unconsented recording. Where everyone knows a recording is being made, there is no interception even if no one agreed to it. Knowledge is the test, and it may be actual or constructive. Commonwealth v. Jackson, 370 Mass. 502 (1976); Curtatone v. Barstool Sports, Inc., 487 Mass. 655 (2021).

It can be. Willfully making a secret recording of a conversation is punishable by up to five years in state prison, and § 99 contains no exception for spouses, former partners, or a person’s own home. Commonwealth v. Hyde, 434 Mass. 594 (2001). Two elements are contested in most cases. The recording must be secret, meaning made without the other person’s knowledge, and it must be willful. In 2026 the Supreme Judicial Court held that willfulness “requires not merely an intent to record, but rather an intent to secretly record.” Commonwealth v. Grimaldi, SJC-13842 (Mass. June 2, 2026).

Making a secret recording is punishable by a fine of up to $10,000, up to five years in state prison, or up to two and one half years in a jail or house of correction. G.L. c. 272, § 99 C 1. Disclosing or using an unlawful recording is a separate offense, which the statute classifies as a misdemeanor punishable by up to two years in a jail or house of correction, a fine of up to $5,000, or both. G.L. c. 272, § 99 C 3.

Yes. Section 99 Q provides a civil action for actual damages, but not less than liquidated damages of $100 per day of violation or $1,000, 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 to actual damages.

No. Federal law 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 not a defense to a § 99 charge.

One. The definition of interception in § 99 B 4 excludes recordings by an investigative or law enforcement officer who is a party to the communication, or who has prior authorization from a party, where the recording is made in the course of an investigation of a designated offense. See Commonwealth v. Burgos, 470 Mass. 133, 140 (2014). That exception is for law enforcement in that category of investigation. It does not apply to private citizens.

A judge may listen to it, because a hearing under c. 209A or c. 258E is not bound by the strict rules of evidence and the standard is fairness in what is admitted and relied on. Frizado v. Frizado, 420 Mass. 592 (1995). Offering the recording is nevertheless a serious step. Playing it in open court is a use of an unlawful interception under § 99 C 3, and the civil action under § 99 Q follows the same conduct. Have counsel review the recording before it is offered.

Often, yes. Where a private person made the recording and no police or governmental conduct was involved, the Supreme Judicial Court has held that suppression serves no deterrent purpose and has denied it. Commonwealth v. Santoro, 406 Mass. 421 (1990); Commonwealth v. Rivera, 445 Mass. 119 (2005). The remedy is not automatic in either direction. Section 99 gives the defendant standing to move to suppress, and the Court has said the Legislature left it to the courts to strike the balance in each case.

Chiefly when law enforcement had a hand in the unlawful interception. Where police made a warrantless audio and video recording in violation of the statute, both the audio and the video are suppressed, because the video is itself contents of the communication under § 99 B 5. Commonwealth v. Du, 495 Mass. 103 (2024). A stronger rule applies to warrantless electronic surveillance inside a home, which violates art. 14 of the Massachusetts Declaration of Rights, and evidence from it may not be used for any purpose, including impeachment. Commonwealth v. Fini, 403 Mass. 567 (1988). One thing survives: a participant in the conversation may still testify from memory.

No. The statute gives the remedy to “a defendant in a criminal trial,” and the Supreme Judicial Court has held that a probation violation proceeding is not a criminal trial. Commonwealth v. Rainey, 491 Mass. 632 (2023).

It can. These devices record audio as well as video, and the audio track is a recording of every conversation within microphone range. The question is secrecy. A household member who knows the camera records sound is not being secretly recorded. A guest who does not know, or a household member who was never told the indoor camera remained on, presents the harder case. The practical advice 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.

Generally no. Section 99 governs wire and oral communications, and oral communication is defined as speech. Silent video is not an interception. Adding a microphone changes the analysis.

Openly, yes. The First Circuit has held that openly recording officers performing their duties in a public place is protected by the First Amendment, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), and that § 99 cannot constitutionally be applied to the secret audio recording of officers discharging their duties in public spaces, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020). That protection concerns police accountability in public. It does not license secret recording of civilians or of anyone in a private setting.

Bring it to counsel before responding to it. The recording may be admissible against you even though making it was unlawful. At the same time, the person who made it may face criminal exposure under § 99 C 1, further exposure under § 99 C 3 for playing or sending it, and a civil action under § 99 Q. If that person uses the recording to pressure a witness, the conduct may 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.

Contact counsel promptly. Handing a secret recording to an officer is how most § 99 charges in the District Courts begin, because it establishes both the making of the recording and its disclosure in a single act. Whether a charge follows depends on facts that are worth developing early, including whether the other person knew a recording was being made, whether the conversation was captured willfully, and what the recording contains.