Massachusetts Wiretap Law 101
Massachusetts Wiretap law requires that the participants give permission before talking on the phone or meeting face-to-face. This is similar to many other states that require consent before recording a conversation, although some states allow recording without consent. States such as California and New Hampshire deny wiretapping protection to public conversations in places where the public has a right of access. Massachusetts, meanwhile, considers a public place a semi-public one such as a mall or sports stadium. In Massachusetts, the Wiretap Law is part of Chapter 272 of the General Laws, section 99 , which was enacted to protect against invasion of privacy and to discourage eavesdropping.
The Wiretap law specifically states, "Whoever, unless authorized by all parties to the conversation, by means of any device, secretly overhears, intercepts, or records the private conversation of others shall be punished by imprisonment in the state prison for not more than five years or in jail or house of correction for not more than two and one half years, or by a fine of not more than $10,000, or both such fine and imprisonment." Violation of the Wiretap Law will result in one of two possible criminal penalties including:
Do I Need Permission to Record?
In short, consent from all parties is required, in most circumstances, for recordings to be legal in Massachusetts. This means that individuals and businesses are required to obtain permission from the other parties for their conversations to be recorded. This includes conversations over the phone, by text message, and in-person.
However, there is one exception, known as third-party consent. In this situation, a person that is "effectively in charge" of a business may consent to recording conversations involving him or her and employees acting at his or her direction. The "effective control" standard has been upheld by two Massachusetts cases, including Commonwealth v. Pagan, 416 Mass. 405 (1993) and Commonwealth v. Leon, 440 Mass. 658 (2004).
Exceptions to the General Rule
You may wonder if this Rule has any exceptions to it. What about the spouse in the example above who is coerced into confessing to the spouse? Frankly, the cases I have read (as opposed to the hypotheticals) all contain pretty darn compelling reasons to allow such improper evidence to come in. In my humble opinion, while there are certainly exceptions to the Rule, I don’t think this is one of them. I am sure a crafty prosecutor can come up with a defense to this position, however. Also, things can get funky when you cross state lines (Michigan, Wisconsin, and Illinois are "two-party" states). So, please read on.
The Massachusetts Supreme Judicial Court has found several exceptions to the Rule. Here are a few of them:
- If you are a participant in the conversation, you do not need to consent to the recording.
- If one party has given consent to the recording, and another party later decides to participate in the conversation, the party can now record. All parties must be warned that the newcomer can now hear and record the conversation.
- The Rule does not prohibit law enforcement officers from recording either a conversation to which they are a party or to a conversation taking place in front of them.
- Monitoring an electronic communication as an incident to the transmission itself is allowed.
- Monitoring internal telephone lines does not automatically constitute a violation of the Rule.
- If you happen to be in congress, and are involved in the official business of the state, and your business happens to be: 1. the preparation of the material for public body hearings, 2. translation or other linguistic assistance in official meetings, or 3. lawful investigation of a crime, then you can record without violating the Rule.
Penalties for Illegal Recording
In the event charges are pursued for unlawful wiretapping under M.G.L. c. 272, § 99, several possible penalties exist, both at the federal and state level. Of course these could vary depending on the discretion of the prosecutor, the judge, and the severity of the relevant offense in question. Furthermore, such penalties are likely to be influenced whether the recorder is a first time offender or has a prior criminal record and/or previous conviction(s) for one or more wiretap-related offenses on record. Frequently, the person charged with illegal wiretapping could face either or both of the following scenarios: Under Massachusetts law, a helper who urges or commands a wiretapper to make the unlawful record is also committing the offense. In both possible circumstances, the wiretapper and any accomplices or helpers could face not only the threat of arrest for additional criminal charges and the resulting penalties, but discovery efforts involved with preparing a legal defense when an unlawful recording is involved make it all the more important for either possible aider and abettor to seek prompt legal advice upon learning that a charge has been or is about to be filed for this kind of offense.
Best Practices for Legal Recording
In order to avoid the potential pitfalls of recording conversations in Massachusetts, certain best practices should be followed by individuals looking to utilize recording devices in their daily lives. First and foremost, for in-person conversations, you should always consider obtaining consent from the other party to be recorded. Written consent is advisable, but verbal consent is accepted as well; particularly in circumstances where recording equipment will be placed on your own property to facilitate a conversation with someone who may be suspicious of the recording equipment (think home surveillance). For phone calls, audio recording consent can be obtained through a pre-recorded message stating that the conversation will be recorded for quality assurance, or similar language. This will avoid a situation where a person reasonably relies business or customer service helpline representatives will not be recorded during the course of a phone call.
Once the person has consented to be recorded, you should analyze what type of recording device is going to be used. For phone calls, this may be a simple matter of purchasing a compliant phone or recording accessory. For visual recording, there may be a time limit on how far back recorded camera footage can be searched without a warrant . In addition, laws may be specific on what type of surveillance systems can be deployed without a warrant, such as IP versus analog cameras. Therefore, it is recommended that you do your research before consulting with a manufacturer or retailer about your options. This approach will allow you to identify the type of devices that are legally permissible for your intended use.
After having a clear understanding of what types of recording devices are legally permissible under Massachusetts law, consult an attorney to determine whether there are any additional requirements on your part to make the recording conform to the law. For example, it may be a violation of existing contract terms to use a surveillance camera in a work environment without disclosing it to employees. In addition, you may need to post signs alerting people to being recorded by video equipment in a business setting. On the other hand, obtaining consent prior to recording a conversation will likely provide an affirmative defense to a criminal or civil action brought by the parties recorded.
Ultimately, taking a proactive approach to identifying and following legal guidelines for recording conversations in Massachusetts provides you with the best chance of obtaining the best evidence possible while avoiding the potential for civil or criminal action for improper recording.
What This Means for Businesses and Employers
The recent Massachusetts Supreme Judicial Court decision in Commonwealth v. Hyde highlights the importance of knowing the nuances in the law when recording conversations in the workplace. The new ruling clarifies that employers must provide notice to employees before they can legally record conversations involving a private matter.
Hyde represents an important expansion of existing privacy rights in Massachusetts and demonstrates that employers and other businesses should be cautious when recording conversations or communications at or associated with work. While employers should certainly comply with the SJC’s decision, there are other facets of Massachusetts law with which employers should also be concerned.
Massachusetts courts follow the state wiretapping statute, G.L. c. 272, § 99, which governs recording or interception of electronic communications (also referred to as "eavesdropping" or "tapping"). With some limited exceptions, the statute generally prohibits secretly recording or overhearing a conversation or wire or electronic communication in Massachusetts. Among other things, it requires that both parties consent to the taping. The wiretap statute contains two provisions that are relevant to workplace recordings:
G.L. c. 272, § 99 (D) provides that, where one party to a wire or electronic communication consents to a recording, the recording is considered lawful as long as the recording is made for a "legitimate purpose." The statute does not define "legitimate purpose." In Clay v. Chief Justice for Admin. and Management of the Trial Court, 464 Mass. 116 (2013), the SJC expanded the scope of G.L. c. 272, § 99(D) to include workplace recordings, and held that recordings made by a reasonable employee for a legitimate management purpose as a part of his or her job duties fall within G.L. c. 272, § 99(D).
In contrast, G.L. c. 272, § 99(E) creates a narrow exception to the general rule against eavesdropping for communications made with the "intention that no one but those present should be able to overhear or record." In Williams v. Sedereas, 457 Mass. 412 (2010), the SJC held that the exclusionary provision of the wiretap statute would prohibit the recording of an employee’s communications with a co-worker made with the intention that their communications be confidential, because, under the statute, such an intention would suggest that the recording was being made with intent to commit an unlawful act. Thus, pursuant to Williams v. Sedereas, an employee’s communications must be determined to be governed by either 99(D) or 99(E), based on the employee’s intent at the time of the recording.
A case decided earlier this year – Zimon v. Kourouvacilis – further highlights how employers should think twice about when and how they record their employees. The Zimon decision, which the Massachusetts Appeals Court recently clarified, held that an employer spying on a group of employees in an office setting might constitute intentional infliction of emotional distress, where the employer recorded the employees’ movements without their knowledge and with the intent to use the recordings for a wrongful or unlawful purpose. In limiting the employer’s defenses to only those provided by the common law, the Court also reaffirmed the Zimon plaintiff’s right to try to recover punitive damages.
Based on the foregoing, employers may want to consider the following best practices with respect to recording or tapping communications in the workplace: Employers who hope to employ passive surveillance in the workplace (such as cameras in the workplace) would be advised to consult legal counsel to ensure compliance with applicable laws.
Getting Legal Advice
Consulting with a legal professional should be at the forefront of your mind anytime you are not sure whether recording a conversation or other type of communication is lawful or if you made the mistake of recording someone unlawfully. For instance, if you recorded your boss making a remark that you suspect was racist, or if you and another employee recorded a meeting regarding our sexual harassment complaints, it is important to speak with an attorney about whether those recordings could be used to protect you .
Even more common is that an employer records you at work, whether it be via surveillance cameras or otherwise. What if you say something that is later taken out of context? How could you use your employer’s surveillance against them? Do you have to worry about the surveillance itself? Does that violate your rights? These are just some of the topics an attorney could help you sort out.