Recording Law for Voiceprints & Biometric Data in Massachusetts

Massachusetts has one of the strictest wiretap laws in the country. Its wiretap statute says you commit a crime if you secretly record any "oral communication" — which the law defines simply as "speech" — unless every person taking part in the conversation has first agreed to the recording. The law makes no distinction between in-person conversations, phone calls, video calls or other electronic communications: all require the same all-party consent. The key word is "secretly." If everyone knows the conversation is being recorded and agrees, it’s not secret and the law isn’t triggered. But if anyone is unaware, the recording is illegal even if the conversation is happening in a public place. This rule applies whether you’re using a phone, a smart speaker, or any device to capture the audio.

The law is found in Massachusetts General Laws chapter 272, section 99. Section 99(B)(2) defines "oral communication" as "speech," with no requirement that the speech be private or confidential. Section 99(B)(4) makes it a crime to "secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication" unless all parties have given prior authority. The statute is unusually strict — unlike most other all-party states, it recognizes NO exception based on the recorded person's reasonable expectation of privacy. The Supreme Judicial Court has held that the Legislature chose its words carefully and meant what it said, refusing to read such exceptions into the law.

If your device captures video without audio, the Massachusetts wiretap law does not apply on its face because it only covers "speech." But a November 27, 2024 Massachusetts Supreme Judicial Court decision, Commonwealth v. Du, 495 Mass. 103 (SJC-13557), says that if the same device simultaneously captures audio and video — and the audio portion was an unlawful interception — then the video must also be suppressed. The court rejected the argument that a silent version of the recording could be admitted separately, holding that 'the scope of the wiretap act's remedy includes suppression of the recording's video footage.' So if your device records both audio and video at the same time, and the audio requires all-party consent, you risk losing the entire recording if consent is missing.

Massachusetts currently has no dedicated biometric privacy statute in force. There is no requirement to get consent, provide notice, or follow a retention schedule just because you’re capturing a voiceprint. However, a bill under consideration in the state legislature would change this. As of July 22, 2026, the Massachusetts Data Privacy Act (Senate 2619 / House 5479) has passed both chambers but remains in a conference committee. If enacted, it would classify voiceprints as "biometric data" and bar controllers from collecting, processing, or transferring such data except when strictly necessary to provide or maintain a specific product or service requested by the consumer, with affirmative consent required for any other processing or transfer. The bill’s enforcement details are still being negotiated, so it’s not law yet.

A court-created as-applied exception to Massachusetts’s all-party consent rule exists. In Martin v. Rollins (Project Veritas Action Fund v. Rollins), 982 F.3d 813 (1st Cir. 2020), the First Circuit held that the wiretap statute cannot constitutionally be applied to secretly record on-duty police officers discharging their official duties in public spaces. This exception is location- and duty-status-dependent, not a general public-official or public-space rule. It does not apply to recording other public officials, private citizens, or police in non-public spaces. Because this is a court-created rule, not a statute, it should be applied cautiously and only when all three conditions are clearly met.

Imagine you’re using a device to record a conversation with a friend in a coffee shop. The device records both audio and video. Your friend does not know the device is recording. Under Massachusetts law, this is an unlawful interception because the recording was done secretly and without the friend’s consent. Even if the device later discards the audio and only keeps the video, the Massachusetts Supreme Judicial Court has said the video may still be suppressed because it was captured simultaneously with the unlawful audio. If the friend had known and agreed to the recording, the situation would be different — the recording would not be secret and the law would not apply.

Massachusetts law treats silent video capture as not categorically free from wiretap-act exposure. A November 27, 2024 Massachusetts Supreme Judicial Court decision, Commonwealth v. Du, 495 Mass. 103 (SJC-13557), clarifies that where video is captured simultaneously with audio in a single recording and the audio is an unlawful interception, the video component must be suppressed too. The court expressly rejected the Commonwealth's argument that a muted/silent version of the same recording was independently admissible. This means a device that never engages its microphone at all is not clearly reached by Du's holding, which addressed capture-then-discard/mute scenarios rather than hardware that structurally never records audio. In practical terms, if your device could have captured audio even briefly during a video recording, you risk suppression of the entire recording if consent was missing.