Recording Police in Massachusetts: The Wiretap Law Turns on Secrecy, Not Consent

The Massachusetts approach is unusual because the limiting element is concealment rather than consent. G.L. c. 272, section 99(B)(4) 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 one given prior authority by all parties. Both words matter. All-party authority is one route out of the definition. Not acting secretly is the other, and it is the one that governs a citizen filming a police encounter in the open.

The preamble the Legislature wrote into the section says the same thing about its purpose. It records a finding that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the Commonwealth, and concludes that the secret use of such devices by private individuals must be prohibited. Section 99 is aimed at concealed surveillance, and it was written around organised crime investigation, with the preamble reciting that concern at length and the definition of designated offense in section 99(B)(7) listing arson, extortion, bribery, kidnapping, murder and the rest.

What this means for a driver or bystander in Massachusetts is specific. Holding a phone up in plain view while an officer works, without hiding it or disguising it as something else, does not produce an interception, because nothing about it is secret. Recording video with no audio track is outside the section entirely, because section 99(B)(2) defines oral communication as speech, and section 99(B)(1) defines wire communication as one carried by wire, cable or like connection, so a silent video captures neither. Concealing a running recorder in a pocket, a bag or a dashboard housing while an officer speaks is the conduct the section reaches.

Section 99 is not limited to police encounters and does not single them out. The definition of intercepting device in section 99(B)(3) sweeps in any device capable of transmitting, receiving, amplifying or recording a wire or oral communication, carving out only a hearing aid correcting subnormal hearing and common carrier equipment used in the ordinary course of business. There is no exception for a member of the public, no exception for a matter of public concern, and no expectation-of-privacy qualifier of the kind Florida uses. The statute does contain an exception running the other way: under section 99(B)(4) it is not an interception for an investigative or law enforcement officer to record or transmit a communication where the officer is a party to it or has prior authorisation from a party, and the recording is made in the course of an investigation of a designated offense.

The surrounding offences matter too. Section 99(C)(3) makes it a misdemeanour to wilfully disclose or use the contents of a communication knowing it was obtained through interception, punishable by up to two years in a house of correction or a fine of up to $5,000. Section 99(C)(5) reaches mere possession of an intercepting device under circumstances evincing an intent to commit an unlawful interception, with installation of the device treated as prima facie evidence of possession. Section 99(C)(2) separately punishes editing, altering or tampering with a recording intended for a judicial proceeding without fully indicating the changes made, which is worth knowing before trimming footage for a hearing.

c. 272, section 99(C)(1), a person who wilfully commits, attempts or procures an interception of any wire or oral communication shall be fined not more than $10,000, imprisoned in the state prison for not more than five years, imprisoned in a jail or house of correction for not more than two and a half years, or both fined and given one such imprisonment. Proof of the installation of an intercepting device under circumstances evincing an intent to commit an unlawful interception is prima facie evidence of a violation.

Disclosing or using the contents of an intercepted communication, knowing it came from an interception, is a misdemeanour under section 99(C)(3) carrying up to two years in a house of correction or a fine of up to $5,000. Possessing an intercepting device with intent to use it unlawfully, permitting one to be used, or possessing one knowing it is intended for unlawful use, carries the same misdemeanour exposure under section 99(C)(5). Section 99(C)(6) extends the same punishment to anyone who permits, commits on behalf of another, attempts, conspires or is an accessory to any of those offences.

The section also creates the aggrieved person status at section 99(B)(6), covering anyone who was a party to an intercepted communication or would otherwise have standing to complain that his privacy was invaded.