Note: This page covers information specific to Massachusetts. For general information concerning the use of recording devices see the Recording Phone Calls, Conversations, Meetings and Hearings section of this guide.
For additional information about engaging in journalism in the Commonwealth of Massachusetts, please see our printable PDF guide Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.
Massachusetts Wiretapping Law
Massachusetts's wiretapping law often referred to is a "two-party consent" law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium. See Mass. Gen. Laws ch. 272, § 99. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not "secret"). Under Massachusetts's wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.
This law applies to secret video recording when sound is captured. In a 2007 case, a political activist was convicted of violating the wiretapping statute by secretly recording video of a Boston University police sergeant during a political protest in 2006. The activist was shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. As part of the sentencing, the court ordered the defendant to remove the footage from the Internet. From this case, it appears that you can violate the statute by secretly recording, even when you are in a public place. However, in a 2011 case, the U.S. Court of Appeals for the First Circuit held that recording police activity in public is independently protected by the First Amendment, and that it is unconstitutional for the state to prosecute those recording the police in public under Massachusetts's wiretapping law; this ruling might protect secret as well as open recordings.
In addition to subjecting you to criminal prosecution, violating the Massachusetts wiretapping law can expose you to a civil lawsuit for damages by an injured party.
Consult The Reporters Committee for Freedom of the Press's Can We Tape?: Massachusetts for more information on Massachusetts wiretapping law.
Massachusetts Law on Recording Court Hearings and Public Meetings
Massachusetts Supreme Judicial Court Rule 1:19 says that judges should "permit broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the news media for news gathering purposes and dissemination of information to the public," with certain limitations. Members of the media must make a request to the court a reasonable time in advance of the proceeding. Courts generally do not allow recording devices in certain types of sensitive cases, and the judge retains the discretion to limit the use of recording devices to preserve the decorum of the court and the fairness of the proceeding. See this Massachusetts Bar Association post for details. Supreme Judicial Court oral arguments are webcast and archived online.
Federal courts in Massachusetts, at both the trial and appellate level, prohibit recording devices and cameras in the courtroom.
For information on your right of access to court proceedings, please consult the Access to Government Information section of the guide.
Massachusetts open meetings law expressly permits sound and video recording of public meetings (i.e., meetings of a governmental body required to be open to the public by law), except for executive sessions, by anyone in attendance. The statute provides that:
After notifying the chair of the public body, any person may make a video or audio recording of an open session of a meeting of a public body, or may transmit the meeting through any medium, subject to reasonable requirements of the chair as to the number, placement and operation of equipment used so as not to interfere with the conduct of the meeting. At the beginning of the meeting the chair shall inform other attendees of any such recordings.
For information on your right of access to public meetings, please consult the Access to Government Information section of the guide and The Reporters Committee for Freedom of the Press's Open Government Guide: Massachusetts.