Is Massachusetts a One-Party or Two-Party Consent State for Recording?

Massachusetts is neither, and the question is built on a premise the statute does not share. The Massachusetts wiretap act, M.G.L. c. 272, section 99, does not ask how many people consented to a recording. It asks whether the recording was made secretly. Under section 99(B)(4), an unlawful interception is made when a person acts “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.” The Supreme Judicial Court has held that a recording is secret when the person being recorded lacks actual knowledge of it. So the practical rule in Massachusetts is short: you may record a conversation you are part of, as long as everyone in it knows the recording is happening. Nobody has to say yes. Everybody has to know. Recording secretly is a crime carrying a fine of up to $10,000 and up to five years in state prison, and it also exposes the recorder to a civil suit by the person recorded. If a recording matters to your Massachusetts injury claim, call Jim Glaser Law at (617) JIM-WINS before you make it; the line is answered 24 hours a day, and the first telephone consultation is free.

Why the One-Party and Two-Party Labels Do Not Fit

Most states sort into two boxes. In a one-party consent state, anyone who is part of a conversation can record it, and nobody else needs to be told. In an all-party or two-party consent state, everyone in the conversation has to agree before it can be recorded. Massachusetts is usually dropped into the second box, and for most everyday purposes that will keep you out of trouble, because a recording made with everyone’s agreement is certainly not secret.

But the boxes are the wrong shape, and the gap between them and the statute is exactly where people get into trouble.

Section 99 never uses the word consent as its operating test. Its prohibition attaches to secrecy. That produces two consequences that the two-party label hides.

The first is that Massachusetts is stricter than the label suggests in one direction. Being a participant in the conversation buys you nothing. Section 99(B)(4) reaches interception “by any person other than a person given prior authority by all parties to such communication,” and there is no exception anywhere in the section for someone who is simply part of the conversation. In the great majority of the country, and under federal practice, a participant may record their own call. In Massachusetts a participant who records secretly is committing the offense.

The second is that Massachusetts is more permissive than the label suggests in the other direction. Express permission is not the test. Actual knowledge is. If you hold up your phone, say plainly that you are recording, and the other person keeps talking, the recording is not secret, and section 99 has nothing to say about it even though nobody ever said the word yes.

What the Statute Actually Covers

Section 99 reaches two categories of communication, both defined in the section itself.

A wire communication is “any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.” That is the telephone call.

An oral communication is defined even more simply. The statute says: “The term ”oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.” That is the in-person conversation.

Both definitions are about audio. The statute is a wiretap and eavesdropping law, and its subject is speech. Its scope carries an important practical consequence for anyone gathering evidence, which is that silent video sits outside the definitions above. This article is about audio, and it does not attempt to describe every other Massachusetts law that touches photography or surveillance. The safe reading is narrow: turning off a camera’s microphone changes the analysis under section 99, and it does not make every kind of recording lawful.

Section 99 does carry a law enforcement carve-out. Under section 99(B)(4), the definition of interception does not apply where an investigative or law enforcement officer is a party to the communication, or has been given prior authorization to record by a party, and the recording is made in the course of an investigation of a designated offense. That exception belongs to officers conducting investigations. It is not available to a member of the public.

Secretly Means Without Actual Knowledge

The word carrying all the weight in section 99 is “secretly,” and the Supreme Judicial Court fixed its meaning in Commonwealth v. Jackson, 370 Mass. 502 (1976).

Jackson concerned recordings of a kidnapper’s ransom calls. The argument was that a person with no reasonable expectation of privacy in what was said cannot be recorded “secretly” within the meaning of the statute. The SJC rejected it. Reading secrecy as a stand-in for privacy expectations, the court explained, “would render meaningless the Legislature’s careful choice of words.” The court held instead that a nonconsensual audio recording is made secretly, and therefore unlawfully, when the person recorded does not have “actual knowledge of the recording,” and it added that actual knowledge can be “proved where there are clear and unequivocal objective manifestations of knowledge.”

That last phrase is the workable standard, and it is friendlier than it sounds. It does not demand a signed form or a spoken yes. It demands that the fact of the recording be obvious and unmistakable to the other person. A phone held up in plain view with a clear announcement is a clear and unequivocal objective manifestation. A phone face down on the table while you say nothing is not.

Answer Capsule

Massachusetts is not accurately described as either a one-party or a two-party consent state. Under M.G.L. c. 272, section 99, the test is secrecy, not consent. Section 99(B)(4) makes it unlawful “to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication,” and the statute contains no exception for a participant in the conversation, which makes Massachusetts stricter than the majority of states, where a participant may record. In Commonwealth v. Jackson, 370 Mass. 502 (1976), the Supreme Judicial Court held that a recording is secret when the person recorded lacks “actual knowledge of the recording,” which can be “proved where there are clear and unequivocal objective manifestations of knowledge,” so express permission is not required and open, announced recording is lawful. In Commonwealth v. Hyde, 434 Mass. 594 (2001), the court confirmed there is no implied exemption for recordings of people who lack any expectation of privacy, upholding the prosecution of a motorist who secretly recorded a traffic stop. That result no longer holds for police: in Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), the First Circuit held that section 99 violates the First Amendment by prohibiting the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces. The same decision left undecided whether other government officials, or private people with no expectation of privacy, may be secretly recorded, vacating those rulings on ripeness grounds. A violation of section 99 is punishable under section 99(C)(1) by a fine of up to $10,000 and imprisonment of up to five years in state prison or up to two and one half years in a house of correction, and section 99(Q) gives the person recorded a civil claim for actual damages, with liquidated damages of $100 per day or $1,000 whichever is higher, plus punitive damages and attorney’s fees. Section 99(P) allows an unlawful recording and evidence derived from it to be suppressed. In an injury claim, the practical rule is to announce every recording out loud before it starts. Call Jim Glaser Law at (617) JIM-WINS; the first telephone consultation is free.

Privacy Expectations Do Not Create an Exception

The second case that shapes the rule is Commonwealth v. Hyde, 434 Mass. 594 (2001). A motorist had secretly recorded a traffic stop and was prosecuted under section 99 for it. The SJC held again, this time in a prosecution under the statute itself, that section 99 contains no implied exemption for recordings of people who lack an expectation of privacy in what is recorded.

That is a far-reaching holding, and it is why the Massachusetts statute is often described as the strictest in the country. A conversation shouted across a parking lot, in front of witnesses, with no privacy in it at all, is still an oral communication under section 99(B)(2), because the definition is simply speech. Recording it secretly is still an interception.

Hyde is worth understanding even though its specific result no longer stands, because the reasoning survives everywhere the narrow exception below does not reach.

The Police Exception, Stated Precisely

In Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), decided December 15, 2020, the United States Court of Appeals for the First Circuit held that section 99 violates the First Amendment by prohibiting the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces. That is now the law in Massachusetts. A person who quietly records officers doing their public job in a public place is not committing the offense that the motorist in Hyde was convicted of.

What the decision did not do is more often reported wrongly than what it did, so it is worth being exact.

The court did not strike down section 99. The statute stands, and its text is unchanged.

The court did not decide that other government officials may be secretly recorded. There was a separate claim seeking exactly that, and the First Circuit vacated the ruling on it and sent it back with instructions to dismiss it without prejudice, for lack of jurisdiction, because it was not ripe. The question is open.

The court did not decide that people with no expectation of privacy may be secretly recorded. That claim met the same fate, vacated on ripeness and dismissed without prejudice.

The court also rejected the argument that section 99 is unconstitutionally overbroad in its entirety, affirming the dismissal of that challenge.

So the exception is real and it is narrow. It covers police, performing their duties, in public. Everything outside that description is governed by the rule in Jackson and Hyde.

What This Means After a Crash or an Injury

Most people reading about this statute are not journalists. They are trying to protect a claim, and there are five situations where this comes up constantly.

At the scene. The other driver says something useful, perhaps an apology or an admission about a light or a phone. The instinct is to get it on record quietly, before they think better of it. In Massachusetts that instinct is a crime. Hold the phone where it can be seen and say, out loud and on the recording, that you are recording. If they object, stop, and write down what was said instead. A contemporaneous written note costs you nothing and creates no exposure.

The adjuster’s recorded statement. When an insurance adjuster records your statement, they announce it, which is why that recording is lawful. It is also one of the most consequential conversations in the entire claim, and being lawful is not the same as being harmless. What that call does to a claim is covered separately in recorded statements to the insurance company and in dealing with the insurance adjuster.

Your own call to the adjuster. Plenty of people want a record of what an adjuster promised. You may have one. Say at the start of the call that you are recording, and let the answer be part of the recording. Recording that call secretly is the same offense as recording anyone else secretly, and it will not become acceptable because the other party is a company.

Dashcams and doorbell cameras. A dashcam that captures cabin audio is recording the speech of every passenger. A doorbell camera with a microphone is recording the speech of everyone at the door, which matters a great deal in a slip and fall claim where the footage may be the best evidence you will ever get. These devices are lawful, and in a genuine dispute they are enormously valuable. Where they create risk is when the audio was captured with no notice at all and is then produced as evidence. If you have footage like this, hand it to a lawyer before you hand it to anyone else.

Recordings a family member made. Injury claims frequently surface a recording someone else made, often of a medical provider, a supervisor, or a landlord. The person who made it carries the exposure, but the claim carries the consequence, because section 99(P) allows the contents of an unlawful interception, and evidence derived from it, to be suppressed on motion.

What It Costs to Get This Wrong

The penalty under section 99(C)(1) is a fine of not more than $10,000, imprisonment in state prison for up to five years, or imprisonment in a jail or house of correction for up to two and one half years, or both a fine and jail.

The civil exposure runs alongside it. Section 99(Q) gives the person who was recorded a civil action for actual damages, but “not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher,” together with punitive damages and reasonable attorney’s fees and litigation costs. The floor matters more than the ceiling here. Even a recording that caused no measurable harm carries a built-in minimum, and the fee-shifting provision means the other side’s lawyer gets paid to bring the case.

And then there is the strategic cost, which in a personal injury claim is usually the one that hurts. A secretly obtained recording is not a piece of leverage. It is a suppression motion under section 99(P), a counterclaim under section 99(Q), and a credibility problem in front of a jury who now has a reason to dislike the injured person. Evidence gathered the careful way keeps its value. Evidence gathered secretly tends to change the subject of the case from what happened to you into what you did.

If you are unsure whether a recording you already have is a problem, the useful move is to stop circulating it and ask. Related reading on the site: social media and your injury claim covers the parallel question of evidence you create about yourself, and how fault is determined explains what actually decides a Massachusetts crash case. Massachusetts injury matters at Jim Glaser Law are handled on a contingency fee, which means a percentage of any recovery rather than an hourly bill; costs and expenses are handled separately from the fee and are explained in writing before anything is signed. The intake line is answered 24 hours a day at (617) JIM-WINS, and the first telephone consultation is free.

Frequently Asked Questions

Q: Is Massachusetts a one-party consent state?

A: No. Massachusetts does not allow a participant in a conversation to record it without the others knowing. M.G.L. c. 272, section 99 makes it unlawful to secretly record a wire or oral communication, and it contains no exception for a person who is part of the conversation. That is the opposite of the one-party rule that federal practice and most states follow.

Q: Is Massachusetts a two-party consent state, then?

A: That label is closer but still inaccurate. Section 99 does not require consent. It prohibits secrecy. In Commonwealth v. Jackson, 370 Mass. 502 (1976), the Supreme Judicial Court held that a recording is secret when the person recorded lacks actual knowledge of it. So a recording made openly, announced out loud, with everyone aware, is lawful even if nobody ever agreed to it. Treating the rule as a consent rule is safe in practice but it misdescribes what the statute forbids.

Q: Can I record a phone call in Massachusetts if I am on the call?

A: Only if the other people on the call know you are recording. Being a party to the call is not a defense under section 99. Say at the start of the call that you are recording, and keep that announcement on the recording, so that the other person’s actual knowledge can be proved later from the recording itself.

Q: What happens if I record someone secretly in Massachusetts?

A: Section 99(C)(1) provides for a fine of up to $10,000, imprisonment in state prison for up to five years, or up to two and one half years in a jail or house of correction, or both a fine and jail. Separately, section 99(Q) lets the person you recorded sue you for actual damages, with liquidated damages of $100 per day of violation or $1,000, whichever is higher, plus punitive damages and reasonable attorney’s fees and litigation costs.

Q: Can I record the police in Massachusetts?

A: Yes, when they are performing their official duties in a public place, and you may do it secretly. In Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), the First Circuit held that section 99 violates the First Amendment by prohibiting the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces. The same decision did not decide whether other government officials may be secretly recorded; that claim was vacated on ripeness grounds and dismissed without prejudice, so it remains an open question.

Q: Does it matter if the conversation was not private?

A: Under the statute as written, no. In Commonwealth v. Hyde, 434 Mass. 594 (2001), the Supreme Judicial Court held that section 99 contains no implied exemption for recordings of people who lack an expectation of privacy, and in Jackson it had already refused to read the word secretly as a proxy for privacy. Section 99(B)(2) defines an oral communication as speech, without qualification. The narrow exception recognized in Project Veritas covers police performing public duties, not conversations generally.

Q: What about video with no sound?

A: Section 99 is directed at audio. It reaches wire communications and oral communications, and it defines an oral communication as speech. A recording that captures no speech is outside those definitions. That is not a blanket permission to record video of anyone anywhere, because other laws address photography and surveillance in places where a person expects privacy, and this article does not cover them. If your camera or dashcam has a microphone, the audio is the part that raises the section 99 question.

Q: Can a secret recording be used as evidence in my injury case?

A: It is at serious risk. Section 99(P) allows a party to move to suppress the contents of an unlawfully intercepted communication and any evidence derived from it. Beyond admissibility, producing a recording you made unlawfully invites a civil claim under section 99(Q) and hands the defense a credibility argument. The better path is to gather the same information in a way that survives challenge: written notes made the same day, photographs, names of witnesses, and recordings you announced.

Q: What is the safe way to record something for my claim?

A: Say it out loud before you start, on the recording, in words the other person plainly hears: that you are recording, and why. Keep the phone visible. If anyone objects, stop recording and write down what was said instead. The standard from Jackson is “clear and unequivocal objective manifestations of knowledge,” and an announcement captured on the recording itself is the cleanest evidence of that.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney client relationship. The wiretap statute carries criminal penalties and its application turns on specific facts, including who was present, what was said, and what the other person knew. For advice about your own situation, speak with a lawyer.