David Losier

The Massachusetts Wiretap Statute (the “Statute”)[1] was enacted in 1968 as a state and municipal law enforcement tool to combat an increase in organized crime. While the Statute governs the circumstances in which law enforcement can secretly record criminal activity, it also places restrictions on when individuals can record conversations and other communications. M.G.L. c. 272, § 99(C)(1). In light of recent case law, attorneys need to understand how the Statute applies to advances in technology so they can properly navigate evidentiary issues and advise clients.

By way of brief background, Massachusetts is one of eleven states requiring all-party consent to record conversations or communications. Criminal charges against individuals who violate the Statute are rare, but a person found to have violated the Statute can face up to five years in prison and a $10,000 fine. The Statute also provides a private, civil cause of action for a person who was secretly recorded in violation of the Statute.

Navigating Evidentiary Issues

Avery J. Topel

Apart from suppressing warrantless recordings made at the government’s direction, there are few, if any, restrictions on when secret recordings can be presented as evidence in court. In fact, even a recording made by a non-government actor and later turned over to police, may be admissible in a criminal prosecution. See Commonwealth v. Rivera.[2] This result, coupled with the private right to sue, may yield seemingly inconsistent outcomes. For example, even if a “secret” recording is admissible in a criminal case, the defendant (or other aggrieved party) may well have a civil cause of action against the person who created the violative recording. Additionally, the elicit recorder may themselves be subject to a criminal prosecution.

In a recent Superior Court case, Simpson v. Boston Public Health Commission,[3] the court ruled that a secret recording was admissible in an employment discrimination case. There, Employee A surreptitiously recorded an argument Employee A had with Employee B, and forwarded the recording to their employer. Employee B was later fired, in part based on the contents of the recording, and sued for employment discrimination. To defend against Employee B’s discrimination claim, the employer sought, over Employee B’s objection, to admit the recording as evidence. The court determined that, even if the recording was obtained in violation of the Statute, “[t]he only remedies provided in the Statute are criminal and civil penalties, not exclusion of evidence in a civil proceeding.” While Employee A may well have violated the Statute and could be subject to criminal prosecution or a civil claim initiated by Employee B, the Statute does not prevent a private party from using the illegally obtained evidence in court.

The fact that evidence obtained in violation of the Statute might be admitted as evidence in most non-criminal proceedings may create incentives to violate the Statute. A person weighing the evidentiary value of making a secret recording against the risk of prosecution or civil suit may decide it is worth the risk.

Victims of crime, especially domestic abuse, may also be tempted to violate the Statute to document their victimization. In 2022, a woman was charged with violating the Statute after she secretly recorded her husband, whom she accused of abuse. According to media reports, the wife had a restraining order against her husband, and the husband was charged with domestic violence at the time the recordings were made. Nevertheless, the wife was charged with eight counts of violating the Statute. Although the domestic violence and wiretap charges were all later dismissed, the case raises concerns that the Statute may hamstring victims of abuse in collecting evidence against their abusers. To assist victims of domestic violence, State Senator Patrick O’Connor recently proposed a bill that would permit otherwise “secret” recordings to document “threats, harassment, or other crimes” in divorce, child custody or abuse cases. As of May 2025, the bill remains pending.

Changing Technology, Advising Clients, and Ethical Obligations

Two recent cases have addressed potentially new interpretations of the 1968 Statute. In the first, Vita v. New England Baptist Hospital[4], a plaintiff claimed that a hospital website which tracked her personal browsing data violated the Statute. In that case, the Supreme Judicial Court (“SJC”) held the term “communication,” as used in the Statute, did not apply to browsing data. In the second recent case, Commonwealth v. Du,[5] the SJC considered whether a secretly recorded cell phone video (that did not contain audio), recorded by police as part of a criminal investigation, should be suppressed. The court held that even without audio, the video in that case was a “recording” of a “communication” that warranted suppression under the Statute.

Attorneys must also consider their ethical obligations when advising clients about secret recordings and the implications of the Statute. In 2002, a divorce attorney faced bar discipline after suggesting that his client should secretly record her husband to document aggressive behavior.[6] Although the resulting disciplinary petition was dismissed, the Board of Bar Overseers (“BBO”) noted that the attorney should have researched the Statute before advising his client. Similarly, in a 2022 custody case, a minor’s attorney was reprimanded after sending a secret recording to a consulting psychologist in a custody dispute.[7] The recording—made by a foster parent during a visit between the child and a biological parent—was used by the psychologist in a report submitted to the court. The BBO determined the child’s attorney violated ethical rules 8.4(d) and 8.4(h).

With advances in technology, there have been efforts to modernize the Statute. When she was the Attorney General, Maura Healey advocated for amendments that reflected evolving technology. The Boston Bar Association has also proposed changes to the Statute, recommending that crimes related to human and firearms trafficking, as well as child pornography be added to the list of “designated offenses” that the Statute aims to combat (in addition to organized crime). These proposals reflect concerns that the Statute, enacted long before the internet and smartphones, may not be well-suited for the 21st century. Whether or not the Statute is amended, practitioners must understand the implications of the Statute when advising and representing clients.

David M. Losier is a shareholder in the Business Litigation Department at Sheehan Phinney. Avery J. Topel is an associate in the Business Litigation Department at the firm.

[1] M.G.L. c. 272, § 99.

[2] 445 Mass. 119, 124 (2005).

[3] No. 2084CV02869 (Suffolk Cnty. Super. Dec. 30, 2024).

[4] 494 Mass. 824 (2024).

[5] 495 Mass. 103 (2024).

[6] BBO Order dated July 9, 2007, File No. C5-03-0022.

[7] Supreme Judicial Court, Public Reprimand No. 2022-17.