Wiretapping is often portrayed in books and movies. In Massachusetts, wiretapping is a crime that is often easily implicated given the modern technologies we enjoy today.
Is wiretapping illegal in Massachusetts?
Yes, wiretapping is a crime in Massachusetts. It is punished under Massachusetts General Laws Chapter 272, Section 99C 1. The crime is called “interception of oral communications.”
If wiretapping a felony?
Yes, wiretapping is a felony in Massachusetts.
When a crime is a felony, it means a person who is convicted can be sentenced to state prison time. A person who is convicted of wiretapping can be sentenced up to five years in prison.
Can I record a phone conversation in Massachusetts without the other person’s consent?
No, the Massachusetts wiretapping statute makes it illegal to secretly record a phone call with another person without their consent. Massachusetts is one of only a few states that has a strict two-party consent law for phone calls.
What are defenses to a wiretapping accusation?
If you are accused of the crime of wiretapping, there may be defenses available. It is important to consult with an experienced criminal defense attorney if you are accused of this crime, or you become aware you are being investigated for it.
Here are examples of defenses:
- The device was not a wiretapping device
- The alleged victim did not have a reasonable expectation of privacy
- The wiretap was not secret
- The wiretap was not intentional
- There was a valid exemption
When is a person guilty of wiretapping?
The elements, or requirements, for proving the crime of wiretapping are:
- The accused used a device to hear, record, or assist another person in hearing or recording an oral or wire communication.
- The accused did the above secretly.
- The accused did the above willfully.
The Commonwealth is required to prove each element beyond a reasonable doubt. If the Commonwealth does not prove each requirement of the crime beyond a reasonable doubt, the accused must be found not guilty at trial.
Massachusetts’ wiretapping statute is a lengthy law that punishes not only wiretapping but also other related crimes. They include:
- Tampering with recordings of judicial proceedings
- Disclosure of wiretapped information
- Possession of certain illegal wiretapping devices
The law also discusses other subjects such as:
- Wiretap warrants
- Introducing evidence obtained by wiretap
- Suppressing evidence illegally obtained by wiretap
Finally, the law allows people whose communications were intercepted wrongfully by a wiretap to sue in civil court. In other words, it creates a civil cause of action for wiretapping.
What is the punishment for wiretapping?
The punishment for wiretapping in Massachusetts is:
- Fine of up to $10,000
- Prison for up to 5 years
- Jail for up to 2½ years
A person could receive both a fine and sentence of time in jail. However, a person cannot be sentenced to both prison and jail time. They can only receive one or the other.
What is a wiretapping device?
The law provides a definition for the term “device”. A wiretapping device is a machine that transmits, receives, amplifies, or records a wire or oral communication.
There are exceptions in the law regarding what a device is. For example, a hearing aid is not a wiretapping device. An ordinary telephone or cell phone is also exempted.
If the state can prove a person installed a wiretapping device, the wiretapping law states that it has a prima facie case for a violation of the statute. This means the state has established enough evidence to avoid dismissal of the case. It means in effect that the state can have their prosecution decided by a judge or jury at trial and puts the ball in the defense’s court to rebut, or call into question, the allegations.
What is a wire or oral communication?
The wiretapping statute also defines the terms “oral communication” and “wire communication.”
An oral communication is any speech spoken by a human. A wire communication is any communication made using a wire, cable, or similar connection between a point of origin and a point of reception.
What does it mean to record?
For the wiretapping law, to record means to set words down in writing or to reproduce sounds and visual images to an electronic format.
What is secrecy?
To “secretly” wiretap someone means the person who is tapped is not aware or on notice that they are being heard or recorded. An exception is when a person does not have a reasonable expectation of privacy. A person who does not have a reasonable expectation of privacy, like a person in a public space, is not being heard or recorded secretly.
What does it mean to wiretap willfully?
To wiretap someone “willfully” means to tap them intentionally and by design. A person who taps thoughtlessly or by accident has not wiretapped willfully.
What are other exceptions to wiretapping?
The wiretapping law lists other exceptions to the crime, covering:
- Switchboard operators
- Office intercommunication systems
- Law enforcement wiretapping lawfully with a warrant
- Financial institutional recordings
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH DISORDERLY CONDUCT, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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