Recording Law for Family Law in Massachusetts

Massachusetts has one of the strictest rules in the country: you cannot secretly record any form of speech—whether it’s in person, over the phone, or in any other setting—without every person in the conversation knowing about it first. The state’s wiretap law, G.L. c. 272, §99, makes it a crime to "secretly hear, secretly record, or aid another to secretly hear or secretly record" someone else’s speech unless all parties have given their prior authorization. This rule applies no matter where the conversation happens—inside a home, at a park, in a restaurant, or even during a public event. The only time this rule doesn’t apply is if the recording is done openly, meaning everyone involved knows the recording is happening at the time it starts. If someone finds out later that they were recorded without their knowledge, the recording can’t be used as evidence in court, and the person who made the recording could face criminal charges.

The Massachusetts wiretap statute defines an "oral communication" as "speech, except such speech as is transmitted over the public air waves by radio or other similar device," with no requirement that the conversation be private or confidential. Commonwealth v. Hyde, 434 Mass. 594 (2001), squarely holds that the statute contains no reasonable-expectation-of-privacy gate, so the law applies the same way in a crowded restaurant as it does in someone’s living room. The key question isn’t the content of the conversation or where it takes place—it’s whether the recording was made with everyone’s knowledge. If someone is secretly recording a conversation in Massachusetts, they’re breaking the law, even if the conversation itself is happening in a public place.

There is one very specific situation where Massachusetts allows secretly recording someone without their knowledge: when the person being recorded is an on-duty police officer performing official duties in a public space, and the officer is the clear focus/target of the recording. The First Circuit held in Martin v. Rollins / Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) that the state’s wiretap law violates the First Amendment when applied to secretly recording police officers in these circumstances. But this exception is extremely limited. It only applies to on-duty officers actively performing their duties in a public space—like a street or sidewalk—where the officer is the actual subject of the recording, not to private citizens, even during a dispute. It also doesn’t apply if the officer is off-duty, not performing official duties, or if the recording is happening in a private space like a police station lobby.

Secretly recording someone in Massachusetts without their knowledge is a felony under the wiretap law. The offense is punishable as a felony, and illegally recorded conversations are not admissible as evidence in court. Courts have also ruled in Commonwealth v. Du, 495 Mass. 103, SJC-13557 (Nov. 27, 2024) 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 Commonwealth's argument that a muted/silent version of the same recording was independently admissible was expressly rejected. This means if you’re trying to document an incident, you must make sure everyone knows they’re being recorded, or you risk losing the recording entirely.

If your recording device is set to capture only video with no audio, the Massachusetts wiretap law technically doesn’t apply—because the law only covers the interception of speech. However, a recent Massachusetts Supreme Judicial Court decision, Commonwealth v. Du, 495 Mass. 103, SJC-13557 (Nov. 27, 2024), held that if a single recording captures both video and audio, and the audio part is an illegal interception, the entire recording—including the silent video—must be suppressed. This means if your device is capable of recording audio, even if you don’t use it, the video could still be at risk if the audio is captured at any point. 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 a video-only capture scenario remains an inference rather than a tested holding in Massachusetts. In practical terms, if your device is capable of recording audio—even if you don’t use that capability—the safest approach is to ensure no audio is recorded unless everyone consents.

Imagine you’re at a public park for a scheduled custody exchange with your ex-partner. You want to document the interaction in case there’s a dispute later. Before the exchange starts, you say aloud, "I’m going to record this conversation to make sure everything is fair," and your ex-partner nods in agreement. You start recording on your phone, keeping it visible the whole time. Because everyone present knew about the recording and agreed to it before it began, this is legal under Massachusetts law. If your ex-partner later denies something that happened during the exchange, the recording could be used as evidence in court. But if you had started recording without telling your ex-partner first, the recording would be illegal, and a judge could refuse to consider it.

Unlike many other states, Massachusetts does not recognize any exception to its all-party consent rule based on where the conversation takes place. The statute is unusually strict—Commonwealth v. Hyde, 434 Mass. 594 (2001), confirms Massachusetts recognizes no exception based on the recorded person's reasonable expectation of privacy—and contains no public-place carve-out. This means the law applies the same way whether the conversation is in your home, a park, a crowded restaurant, or during a public event. The only operative question is whether the recording was made with everyone’s knowledge; the setting itself supplies no independent basis for treating the recording as lawful.

A device that never engages its microphone at all is not clearly reached by Commonwealth v. Du’s holding, which addressed capture-then-discard/mute scenarios, not hardware that structurally never records audio. So a video-only capture scenario remains an inference rather than a tested holding in Massachusetts. In practical terms, if your device is capable of recording audio—even if you don’t use that capability—the safest approach is to ensure no audio is recorded unless everyone consents.