Reporter's Recording Guide
Last updated August 2021Compare
Massachusetts prohibits the recording, interception, use or disclosure of any conversation, whether in person or over the telephone, without the permission of all the parties.
The state also prohibits the recording and disclosure of images intercepted in violation of its hidden camera laws.
Violators can face both civil and criminal penalties.Compare
The state requires all parties to a conversation to give consent before one can record any in-person conversation. Mass. Ann. Laws ch. 272, § 99(C). An appellate court has held that even if the recorded conversation is of poor audio quality, at least some audible words is enough to violate the wiretapping law. Massachusetts v. Wright, 814 N.E.2d 741 (Mass. App. Ct. 2004). The law only applies to secret recordings, however, so affirmative consent is not necessary when all parties are aware of the recording. Curtatone v. Barstool Sports, Inc., 169 N.E.3d 480, 483 (Mass. 2021).
One state appellate court has held that the all-party consent rule applies whether the conversation is held in private or a public location. See Massachusetts v. Manzelli, 864 N.E.2d 566 (Mass. App. Ct. 2007). But the U.S. Court of Appeals for the First Circuit has more recently clarified that it does not apply to secret recordings of police officers in the performance of their duties in public. Project Veritas Action Fund v. Rollins, 982 F.3d 813, 836 (1st Cir. 2020).Compare
Telephone and electronic communications
Massachusetts makes it a felony to use a device to hear or record any telephone call unless all parties give their consent. Mass. Gen. Laws ch. 272, § 99(C). This includes phone calls and text messages made via cellphone. Massachusetts v. Moody, 993 N.E.2d 715 (Mass. 2013).
The law only applies to secret recordings, however, so affirmative consent is not necessary when all parties are aware of the recording. Curtatone v. Barstool Sports, Inc., 169 N.E.3d 480, 483 (Mass. 2021).Compare
A person cannot photograph, film or use any electronic device to secretly view another person in the nude without consent in areas where the subject would have a reasonable expectation of privacy. Mass. Gen. Laws ch. 272, § 105(b).
The law also prohibits the secret photographing, filming or using a device to view a person’s intimate body parts either under or around the person’s clothing or when the person would reasonably expect it not to be visible by the public. Id.Compare
Illegally eavesdropping or recording on an in-person or telephone conversation is punishable by a fine of up to $10,000 and a jail sentence of up to five years. Mass. Gen. Laws ch. 272, § 99(C). Disclosing or using the contents of such communications is a misdemeanor punishable with a fine of up to $5,000 and imprisonment for up to two years. Id.
Secretly filming or taking photos of another person in the nude without consent is punishable by imprisonment of up to two-and-a-half years and a $5,000 fine. Mass. Gen. Laws ch. 272, § 105(b). Distribution of such videos or photos is punishable by up to five years in prison and a $10,000 fine. Mass. Gen. Laws ch. 272, § 105(c).Compare
The court may award actual and punitive damages, as well as reasonable attorney’s fees and litigation costs, to anyone whose private communications were recorded, disclosed or used in violation of the state’s eavesdropping law. Mass. Gen. Laws ch. 272, § 99(Q). Actual damages would be no less than $100 per day for each day of violation, or $1,000. Id.Compare
The state prohibits the disclosure or use of the contents of an illegally recorded conversation, when accompanied by the knowledge that it was obtained illegally. Mass. Gen. Laws ch. 272, § 99(C)(3).
Distributing videos or photos in violation of the state’s hidden camera laws is also prohibited. Mass. Gen. Laws ch. 272, § 105(c).
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the First Circuit, which includes Massachusetts, has held that there is a First Amendment right to record “government officials in public spaces.” Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir. 2011). This includes filming and audio recording “police carrying out their duties in public,” such as during traffic stops, so long as the officer cannot “reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.” Gericke v. Begin, 753 F.3d 1, 7–8 (1st Cir. 2014).Compare