Massachusetts Wiretap and Secret Recording FAQs

The two-party consent label is wrong for Massachusetts. G.L. c. 272, § 99 punishes secret recording, not unconsented recording. There is no interception when everyone knows a recording is being made, even if no one agreed to the recording. The test is knowledge, which may be actual or constructive. Commonwealth v. Jackson, 370 Mass. 502 (1976); Curtatone v. Barstool Sports, Inc., 487 Mass. 655 (2021).

Secretly recording a spouse or partner can be a crime. Willfully making a secret recording of a conversation is punishable by up to five years in state prison. Section 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. The recording must also 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 amount is the minimum award, not 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. The federal rule is not a defense to a § 99 charge.

Yes. The statute contains one exception. 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. The exclusion applies only if the recording is made in the course of an investigation of a designated offense. See Commonwealth v. Burgos, 470 Mass. 133, 140 (2014). The exception is for law enforcement officers investigating designated offenses, not for private citizens.

A judge may listen to a secret recording, because a hearing under c. 209A or c. 258E is not bound by the strict rules of evidence. The standard at the hearing is fairness in what is admitted and relied on. Frizado v. Frizado, 420 Mass. 592 (1995). The person who offers the recording nevertheless takes a legal risk. Playing a secret recording in open court is a use of an unlawful interception under § 99 C 3. The person who plays the recording can also be sued under § 99 Q. Counsel should review the recording before anyone offers it.

Often, yes. The Supreme Judicial Court has denied suppression where a private person made the recording and no police or governmental conduct was involved, holding that suppression in that situation serves no deterrent purpose. Commonwealth v. Santoro, 406 Mass. 421 (1990); Commonwealth v. Rivera, 445 Mass. 119 (2005). A judge does not grant or deny suppression automatically. Section 99 gives the defendant standing to move to suppress. The Supreme Judicial Court has said that the Legislature left the courts to weigh the competing interests in each case.

A recording can be suppressed chiefly when law enforcement took part in the unlawful interception. A judge suppresses both the audio and the video of a warrantless audio and video recording that police made in violation of the statute, because the video is itself contents of the communication under § 99 B 5. Commonwealth v. Du, 495 Mass. 103 (2024). A stricter rule applies to warrantless electronic surveillance inside a home, which violates art. 14 of the Massachusetts Declaration of Rights. Evidence from that surveillance may not be used for any purpose, including impeachment. Commonwealth v. Fini, 403 Mass. 567 (1988). 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).

Using a home camera or smart doorbell that records sound can violate the wiretap law. Home cameras and smart doorbells record audio as well as video. The audio track is a recording of every conversation within microphone range. The legal question is whether the recording was secret. 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 household member who was never told that the indoor camera remained on, may have been secretly recorded. The owner of the camera should confirm that every adult in the home knows the microphones are active, or should disable the audio. A camera aimed at a doorway can serve its purpose without recording sound.

Generally no. Section 99 governs wire and oral communications. The statute defines oral communication as speech. Silent video is not an interception. A video recording with sound can be an interception.

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). The First Circuit has also held 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). 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.

The person recorded should consult counsel before responding to the recording. The recording may be admissible against the person recorded even though making the recording was unlawful. At the same time, the person who made the recording 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. The person who made the recording may also face a charge of intimidation of a witness under G.L. c. 268, § 13B, if that person uses the recording to pressure a witness. The maximum sentence for witness intimidation is substantially longer than the maximum sentence for the wiretap offense.

A person who has given a secret recording to police should contact counsel promptly. Most § 99 charges in the District Courts begin when a person hands a secret recording to an officer. Handing over the recording gives police evidence, in a single act, of both the making of the recording and its disclosure. The question whether a charge will be brought depends on facts that counsel should develop early. Those facts include whether the other person knew a recording was being made, whether the conversation was captured willfully, and what the recording contains.