Massachusetts has one of the strictest recording laws in the country. Under G.L. c. 272, § 99, it is a felony to secretly record or listen in on a conversation unless everyone in it knows. District Court Instruction 7.560 sets out what the Commonwealth must prove beyond a reasonable doubt.
At a Glance: Wiretapping
Up to 5 years
in state prison, or up to 2½ years in jail
Up to $10,000
fine, alone or with one prison or jail term
Secretly
the people recorded did not know; consent of only one party is not enough
Willfully
intentional, not accidental or thoughtless
The law: G.L. c. 272, § 99; District Court Instruction 7.560 (February 2024)
What the Law Covers
Section 99 makes it a crime to willfully commit an "interception" of a wire or oral communication, to attempt one, or to get someone else to do it. An interception means secretly hearing or secretly recording the contents of a communication with an intercepting device, by anyone who does not have prior authority from all parties to the communication.
Oral communication: speech, other than speech broadcast over the public air waves.
Wire communication: a communication carried in whole or in part by wire, cable, or a similar connection, such as a phone call.
Contents: any information about who the parties are, or the existence, substance, or meaning of the communication.
Intercepting device: any device that can transmit, receive, amplify, or record a communication. A hearing aid is not one. Neither is ordinary phone equipment being used in the ordinary course. A smartphone's recording app, a voice recorder, or a hidden microphone can be.
What the Commonwealth Must Prove
Under Instruction 7.560, the Commonwealth must prove three things beyond a reasonable doubt:
You used a device to hear, record, or help another person hear or record an oral or wire communication.
You did so secretly.
You did so willfully.
Secretly means the people heard or recorded were unaware or otherwise not on notice of it. The question is what they actually knew, not whether they expected privacy. A recording made with the actual knowledge of everyone in the conversation is not an interception, even if no one said yes out loud. Recording a conversation in a public place can still be secret if the people did not know.
Willfully means intentionally and by design, as opposed to thoughtlessly or by accident.
Other Crimes in the Same Statute
Disclosing or using an intercepted communication, knowing it was obtained through interception: a misdemeanor, up to 2 years in jail or a fine of up to $5,000, or both.
Possessing an intercepting device with an intent to commit an illegal interception: a misdemeanor, up to 2 years in jail or a fine of up to $5,000, or both.
Editing or tampering with a recording to present in court or another proceeding under oath without disclosing the changes: up to 5 years in state prison or up to 2 years in jail, and a fine of up to $10,000.
Section 99 also lets a person whose conversation was illegally recorded sue for damages and attorney's fees, so a criminal charge can come with a civil case.
Exemptions
The statute lists exemptions, including phone company employees in the normal course of their work, office intercom systems used in the ordinary course of business, interceptions under a warrant issued under the statute, and certain recordings by law enforcement officers investigating designated offenses.
Common Situations
Recording a phone call, video call, or meeting without telling the other people.
Using a voice-memo app during an argument with a partner, family member, or coworker.
Leaving a phone or device recording in a room to capture what others say.
Sharing a secret recording with others or posting it online.
Defenses
Not secret: the people recorded knew, or were on notice, that they were being recorded.
Prior authority: all parties gave permission in advance.
Not willful: the recording was accidental.
Not a device: the equipment falls within the statute's exclusions.
No contents captured: nothing was actually heard or recorded.
Exemption: one of the statutory exemptions applies.
Why a Lawyer Matters
Wiretapping charges often come out of family, relationship, and workplace disputes, where someone made a recording to protect themselves without knowing the law. The questions of what the other person knew and why the recording was made are where many of these cases turn. I have defended criminal cases for 23 years. If you have been charged with wiretapping, call 781-393-5900.
Revenge porn (G.L. c. 272, § 105): distributing intimate images of a person without consent.
Criminal harassment (G.L. c. 265, § 43A): a pattern of conduct aimed at a person that seriously alarms them.
Witness intimidation (G.L. c. 268, § 13B): threatening or harassing a witness or someone involved in a case.
Disclaimer
This information is for general educational purposes only and not legal advice. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.
