Is Massachusetts a One-Party Consent State? Law and Exceptions

Massachusetts is not a one-party consent state. It is an all-party consent state, meaning every person in a phone call, video call, or in-person conversation has to know a recording is happening before you hit record. Secretly recording a conversation you are part of is a felony under the Massachusetts Wiretap Act, punishable by up to five years in state prison and a $10,000 fine.¹

What the Law Actually Requires

The rule lives in Massachusetts General Laws, Chapter 272, Section 99. It makes it a crime to secretly intercept any wire or oral communication without the approval of everyone involved.¹ “Wire communication” covers phone calls, Zoom, FaceTime, and other electronically transmitted speech. “Oral communication” means face-to-face conversation in a setting where the speakers expect privacy. The devices covered are defined broadly enough to include smartphones, digital recorders, and laptop microphones.

The word doing the work in the statute is “secretly.” The crime is the secrecy, not the recording. If everyone on the call or in the room knows a recording is happening and keeps talking, no one’s rights have been violated.

Consent does not have to be a formal “yes, you may record me.” Courts look for whether the other participants actually knew. The familiar example is the automated message on a customer service line — “this call may be recorded for quality assurance.” By staying on the line, you have given implied consent. The same logic applies in person: if someone can see a recording device pointed at them and keeps speaking, they have knowledge, and knowledge is what the statute demands.

Deceiving someone about why you are recording is a different matter from hiding that you are recording at all. A journalist who records an interview without naming their publication has not broken the law, as long as the interviewee could see or was told about the recording device. Awareness of the recording is the issue, not awareness of your motives.

When the Wiretap Act Applies

The statute protects conversations where the speakers have a reasonable expectation of privacy. A phone call, a conversation inside a home, a meeting behind a closed office door — all protected. A loud argument on a crowded sidewalk generally is not, because the speakers have no realistic basis to assume they are not being overheard.

Audio and video are treated differently. The law targets wire and oral communications, which means sound. Recording silent video in a public place does not fall under the Wiretap Act. The moment your recording captures audio of a private conversation, the statute is in play, and most video recordings do capture sound.

Can You Record the Police?

Yes, as long as you do it openly. In Glik v. Cunniffe (2011), the First Circuit Court of Appeals ruled that a man who openly recorded Boston police officers making an arrest on the Boston Common was exercising clearly established First and Fourth Amendment rights.² The officers lacked probable cause to arrest him under the Wiretap Act because the recording was not secret. He held his phone in plain view, which the officers themselves acknowledged.

Open, visible recording of police performing their duties in public is lawful because the “secret” element of the statute is missing. An officer who can see your phone pointed at them has actual knowledge. Secretly recording officers from a concealed device is a different question and could still run into the statute, just as secretly recording anyone else would.

What Happens If You Record Without Consent

Criminal Charges

Illegally intercepting a conversation carries up to five years in state prison and a fine of up to $10,000. The possibility of state prison time makes it a felony-level offense. Disclosing or using the contents of an illegal recording is a separate crime, classified as a misdemeanor, with up to two years in jail and a fine of up to $5,000.¹ Someone who secretly records a call and then shares the audio can face both.

Civil Lawsuits

The person you recorded can also sue you. The statute lays out three forms of recovery:³

Actual damages, but no less than $100 per day the violation continued or $1,000 total, whichever is higher.
Punitive damages, intended to punish the wrongdoer and able to push the award well beyond out-of-pocket losses.
Reasonable attorney’s fees and litigation costs.

The Recording Usually Can’t Be Used

If you were hoping an illegal recording would at least work as evidence, it almost certainly will not. Massachusetts law lets defendants in criminal cases move to suppress any intercepted communication, and any evidence derived from it, when the interception was unlawful.³ In a 2024 decision, Commonwealth v. Du, the Massachusetts Supreme Judicial Court held that when police secretly made an audio-visual recording in violation of the Wiretap Act, the entire recording had to be suppressed, including the video footage. The court refused to let prosecutors keep the video on the theory that the statute only targets audio.

The usual outcome: no usable evidence and potential criminal liability for having made the recording.

The Narrow Exceptions

Law Enforcement

The statute gives police limited room to record without universal consent, but the exceptions are narrow. An officer who is a party to a conversation, or who has authorization from one party, can record if the investigation involves one of the “designated offenses” tied to organized crime — murder, robbery, kidnapping, arson, extortion, drug offenses, bribery, and witness intimidation among them.³ A routine traffic stop would not qualify. Police can also record under a warrant, or where recording is needed to protect an undercover officer or witness. For private citizens, there is no equivalent shortcut.

Workplaces

The Wiretap Act applies at work the same way it applies everywhere else. An employee who secretly records a conversation with a coworker or supervisor can face the same criminal and civil consequences as anyone else. The statute does contain a narrow carve-out for office intercommunication systems used in the ordinary course of business — standard intercoms and phone extensions employees know about and use routinely.³ It does not give employers a blanket right to secretly record staff. Silent video surveillance in common areas generally falls outside the Act, but adding a microphone changes the analysis.

Calls That Cross State Lines

Federal wiretap law, at 18 U.S.C. § 2511, follows a one-party consent standard, and most other states do the same.⁴ Massachusetts is stricter. When a call connects someone in Massachusetts with someone in a one-party state, courts in different states have reached different conclusions about which law controls. In Kearney v. Salomon Smith Barney, Inc., the California Supreme Court applied the stricter all-party rule to a call between California and a one-party state. The safest approach on any interstate call is to follow the more restrictive law, which in practice means getting everyone’s consent.

The bottom line for anyone in Massachusetts is simple. Before you record a conversation, tell the other people on the line or in the room, and make sure they understand. If you cannot get that acknowledgment, do not record.

1
General Court of Massachusetts. Massachusetts General Laws Chapter 272, Section 99 – Interception of Wire and Oral Communications
2
Justia. Glik v Cunniffe, No. 10-1764 (1st Cir. 2011)
3
General Court of Massachusetts. Massachusetts General Laws Part IV, Title I, Chapter 272, Section 99
4
Office of the Law Revision Counsel. 18 U.S. Code 2511 – Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited