Recording Law for Employers & Businesses in Massachusetts

Massachusetts is one of the strictest states when it comes to recording conversations. Under Massachusetts General Laws chapter 272, section 99, you must get permission from every person taking part in a conversation before you can secretly record their words. This applies whether the conversation happens in person, over the phone, or through any other method. The law defines 'interception' as 'to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication,' excluding speech transmitted over public airwaves by radio or similar device. Recording without everyone's permission can lead to felony charges.

If your smartglasses only record video without sound, the wiretap law may not apply on its face because G.L. c. 272, §99 defines 'oral communication' as 'speech' — so silent video with no audio channel ever captured falls outside §99 on its face. But a recent Massachusetts Supreme Judicial Court decision shows that if the same device could have captured audio — even if it didn't in a particular instance — courts may suppress the video too. In Commonwealth v. Du, 495 Mass. 103, SJC-13557 (Nov. 27, 2024), the court ruled that where video is captured simultaneously with audio in a single recording and the audio is an unlawful interception, the video component must also be suppressed. The court expressly rejected the argument that a muted or silent version of the same recording could be admitted separately, holding: 'the scope of the wiretap act's remedy includes suppression of the recording's video footage.' This holding is structurally analogous to California's Gibbons rule, though not cited as precedent by the SJC. Practical implication: a device that never engages its microphone at all is not clearly reached by Du's holding, which addressed capture-then-discard/mute scenarios, not hardware that structurally never records audio — so this narrower scenario remains an inference rather than a tested holding.

Unlike most other all-party states, Massachusetts recognizes no exception based on the recorded person's reasonable expectation of privacy. The operative question is whether the recording is done 'secretly' under G.L. c. 272, §99(B)(4), which defines 'interception' as secretly recording or aiding another to secretly record any 'wire or oral communication.' Recording done openly or with the knowledge of all parties falls outside this definition entirely and no consent is technically required from anyone. Commonwealth v. Curtatone v. Barstool Sports, Inc., 169 N.E.3d 480, 483 (Mass. 2021), holds that affirmative consent is not necessary when all parties are aware of the recording. Simply being in a public space does not mean people know they are being recorded; you must show actual knowledge — for example, a visible device plus a clear announcement or prior written consent. The statute does not allow you to assume openness just because a place is public.

Massachusetts courts have not squarely decided whether the same strict secrecy rule applies inside a private residence or home office. Commonwealth v. Hyde, 434 Mass. 594 (2001), squarely holds that §99(B)(2)'s definition of 'oral communication' contains no reasonable-expectation-of-privacy requirement, unlike the federal wiretap act's definition, and refused to read an equivalent privacy-expectation limitation into the state statute. Because Hyde's actual facts involved secretly recording police during a public traffic stop rather than a home setting, the extension of its no-privacy-expectation holding to mean the rule applies identically at home and in public is a reasoned inference from the statute's plain terms and Hyde's reasoning, not a squarely-on-point holding about in-home recording — no case was found litigating that specific fact pattern. Because no Massachusetts authority has applied the rule to that fact pattern, the safest approach is to get explicit, contemporaneous consent from every person present before recording. A visible device or general announcement is not enough in this setting. If you record without clear consent in a home, a court could decide the law applies strictly and suppress the recording. Separately, a narrow nudity/voyeurism statute, G.L. c. 272 §105, criminalizes secretly photographing or videotaping a nude or partially nude person's intimate parts where they have a reasonable expectation of privacy, but this is independent of the general audio-consent rule.

There is a narrow exception for secretly recording on-duty police officers while they perform official duties in public spaces. The First Circuit Court of Appeals held the statute unconstitutional under the First Amendment as applied specifically to secret, nonconsensual audio recording of on-duty police officers discharging official duties in public spaces (Martin v. Rollins / Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020)). This is a very specific situation: the officer must be on duty, performing an official function, in a public space, and the recording must be focused on that officer. If any of these elements are missing, the exception does not apply. This exception does not extend to recording regular citizens, even in public. The First Circuit's holding is limited to the specific constitutional challenge raised and does not create a broader public-official or public-space exception.

Massachusetts's wiretap statute does not require consent when a recording is made openly — that is, when all parties are aware that recording is occurring. The statute's definition of 'interception' requires the act to be done 'secretly.' Recording done openly or with the knowledge of all parties falls outside this definition entirely and no consent is technically required from anyone. Curtatone v. Barstool Sports, Inc., 169 N.E.3d 480, 483 (Mass. 2021), holds that affirmative consent is not necessary when all parties are aware of the recording. This applies to any conversation, not just interactions with police, and provides a clear path for lawful recording when all parties know it is happening.

Imagine you run a retail store and give staff smartglasses that can record video and audio. During a busy afternoon, a customer asks a question while two employees assist another shopper. One employee enables the glasses' microphone to capture details for training. A customer later objects, saying they did not know they were being recorded. Under Massachusetts law, this recording is likely illegal because the customer did not consent. Even if the glasses usually run silent, the fact that the microphone could have been used means the video may also be suppressed under Commonwealth v. Du, 495 Mass. 103, SJC-13557 (Nov. 27, 2024), which requires suppression of the video component when audio is an unlawful interception. The safer approach is to post clear signs and get written consent before enabling any recording in customer interactions. If the customer is aware the glasses are recording, the recording may be lawful under the statute's 'not secret' exception because recording done openly or with the knowledge of all parties falls outside the definition of 'interception.'

Massachusetts has essentially no content-based 'private/confidential communication' gate of the Flanagan/Clark reasonable-expectation-of-privacy variety. The statute's definition of the protected category is broad and content-agnostic: G.L. c. 272, §99(B)(2) defines 'oral communication' as simply 'speech, except such speech as is transmitted over the public air waves by radio or other similar device' — no privacy, confidentiality, or reasonable-expectation qualifier appears anywhere in that text. Commonwealth v. Hyde, 434 Mass. 594 (2001), squarely holds this is deliberate: the SJC contrasted the Massachusetts definition with the federal Wiretap Act's definition, which covers only 'oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation' (18 U.S.C. §2510(2)), and refused to read an equivalent privacy-expectation limitation into the state statute, stating: 'we would render meaningless the Legislature's careful choice of words if we were to interpret 'secretly' as encompassing only those situations where an individual has a reasonable expectation of privacy.' The Court emphasized the statute is 'carefully worded and unambiguous, and lists no exception for a private individual who secretly records the oral communications of public officials.' So the content of the conversation (private vs. public, sensitive vs. mundane) does no gating work at all in Massachusetts. The actual operative threshold is procedural: it lives in §99(B)(4)'s definition of 'interception,' which requires the act be done 'secretly' — recording done openly or with the knowledge of all parties falls outside this definition entirely.