Wiretapping occurs when a person records an oral communication of another person without that person’s knowledge. This is typically done by using some sort of recording device. The federal government and the states have all kinds of different rules and regulations when it comes to intercepting and recording another person's oral communications. In most states and in the federal system, there is a rule called “one-party consent,” which means only one person (usually the person making the recording) needs to consent to the taping. Other states, such as Massachusetts, have “two-party consent” rules, which dictate that both the recorder and the speaker need to be aware of and consent to the recording.
In order to convict a person of violating the Massachusetts wiretap statute, the Commonwealth must prove beyond a reasonable doubt that the defendant:
- Knowingly recorded an oral communication;
- Without the knowledge and consent of the person being recorded.
Interestingly, the statute refers to the interception of oral communications, and the secret taking of pictures or video images is not criminalized by this statute (although there are other statutes that prohibit videotaping in some situations without the knowledge of the subject of the taping). The statute also makes a number of exceptions that allow for law enforcement authorities to secretly listen to and record private conversations.
Many of these cases are defended by arguing the defendant’s conduct in recording the oral communication was not secret, and the speaker should have known he was being recorded. A number of the prosecutions for violating this statute involve citizens taping their interactions with police officers. There are numerous examples of people who are stopped by the police and, in order to protect themselves, turn on a tape recorder. Notwithstanding the obvious governmental interest in ensuring police officers are acting appropriately, the Supreme Judicial Court has upheld the wiretapping conviction of a citizen who had secretly recorded his conversation with a police officer.
On the other hand, if it is clear to the police officer that he is being recorded, the person doing the recording has not violated the wiretap statute. In 2007, an attorney was walking through the Boston Common when he saw a Boston police officer aggressively arresting a young man. The attorney began recording the arrest with his cell phone (which recorded video and sound). When an officer learned the attorney was recording his oral communications without his permission, the attorney was arrested and charged with violating the wiretap statute. The criminal case was dismissed against the attorney, and he then sued the police officers in federal court, arguing his civil rights had been violated. A federal appellate court agreed with the attorney that he was within his rights to video and audio record the police and the City of Boston ended up paying significant damages to the attorney.
If you plan on recording the oral communications of another person in Massachusetts it is in your interest to make certain the other person is aware he or she is being recorded. There are significant penalties attached to a conviction for violating the Massachusetts wiretap law, and if you are charged you should immediately consult with a criminal defense attorney.