Recording Law for Streamers & Creators in Massachusetts

Massachusetts has one of the strictest wiretapping laws in the country. Under Massachusetts General Laws chapter 272, section 99, it is a crime to secretly record any "oral communication" — meaning any spoken conversation — unless every person taking part in that conversation has first agreed to the recording. This rule applies in any setting, whether you're recording in a park, on a sidewalk, at a protest, or anywhere else. The law does not include any exception for public spaces or for conversations that seem casual or non-confidential. The legislature chose specific language that rejects the idea that publicness changes the consent requirement. The statute 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." Prior authority from all parties is required to avoid criminal liability under §99.

If your recording includes only video with no audio, Massachusetts law does not automatically treat it as a wiretap violation. The wiretap statute specifically protects "oral communication," which is defined as speech. However, in Commonwealth v. Du, 495 Mass. 103 (2024), the state's Supreme Judicial Court held that where video is captured simultaneously with audio in a single recording and the audio was an unlawful interception, the video component must be suppressed too. That means if your microphone is on, even briefly, you risk losing the entire recording if someone challenges it. A device that never engages its microphone at all may not be reached by Du's holding, which addressed capture-then-discard/mute scenarios rather than hardware that structurally never records audio. The only way to avoid this risk is to make sure your device never captures audio at all, or to get all-party consent before recording begins.

Unlike many other states, Massachusetts does not recognize an exception based on a person's reasonable expectation of privacy in a given place. The state's wiretap law does not include any exception for public spaces. Under the statute, prior authority from all parties is required to avoid being an 'interception' as defined in G.L. c. 272, §99(B)(4). If the recording is made secretly — without the knowledge or prior authorization of all participating parties — Massachusetts's all-party rule kicks in and prior authorization from every party is required to avoid criminal liability under §99.

There is one narrow exception to the all-party consent rule in Massachusetts: you are allowed to secretly record on-duty police officers discharging official duties in public spaces. This comes from a federal appeals court ruling that found the state's wiretap law unconstitutional as applied to this specific situation. But this exception only protects recordings of police officers — it does not apply to recording regular citizens, even in public. And it only covers situations where the officer is clearly on duty, acting in an official capacity, and the recording is focused on that officer. If you're recording a protest or public event and a police officer is nearby but not the subject of your recording, you still need all-party consent to capture anyone's spoken words.

Under Massachusetts law, consent must be given by every person taking part in the conversation. Prior authority from all parties is required to avoid being an 'interception' as defined in G.L. c. 272, §99(B)(4). The best practice is to ask each person directly and get a clear "yes" or equivalent before you start recording. If someone says no, you must stop recording their voice immediately. Recording without that clear consent could lead to serious consequences, including suppression of the recording or other legal exposure.

Hypothetical example: Imagine a streamer in downtown Boston decides to go live while walking down a busy street. They have their phone out and start talking to the camera about the sights and sounds around them. Unbeknownst to them, their phone's microphone is picking up fragments of conversations from people walking nearby. One of those people later finds out they were recorded and feels their privacy was violated. Because the streamer did not get consent from everyone whose speech was captured, the recording could be challenged as an unlawful interception. This example shows why it's important to either disable audio recording in public or get explicit consent from everyone involved before you start streaming.

Massachusetts law requires all parties to consent before you can legally record any spoken conversation. The state's highest court has not squarely addressed whether this rule applies inside a private residence, because its controlling case involved a public traffic stop. The Supreme Judicial Court has said the statute contains no reasonable-expectation-of-privacy requirement, so the all-party-consent rule for oral communications does not key off whether a reasonable expectation of privacy existed. 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. A separate, narrow nudity/voyeurism statute 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 and doesn't change the answer to the audio-consent-in-the-home question.