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If you are physically present in a room where conversation takes place, is it legal to digitally record the conversation?

Please refer to the following cases:

  • When you are an active party
  • When you are a passive listener
  • When you are passive, but the conversation specifically regards yourself
  • When the other party(s) know and agree to the recording
  • When the other party(s) know and do not agree to the recording
  • When the other party(s) do not know
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2

Massachusetts has one of the most restrictive laws in the USA on SECRETLY recording any conversation. Other than that, you can record a conversation, assuming you have proof (if necessary for a criminal defense) that everyone speaking has knowledge that it's being recorded.

For instance, turning on your cellphone to record the conversation during a traffic stop, without the police officer's knowledge, would be a felony.

See, e.g., Commonwealth v. Jackson (1976), Commonwealth v. Hyde (2001), and cf. Glik v. Cunniffe, et al. (2011). MGL ch. 272, s.99.

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  • Thanks. What about video recording (no audio)? Is placing hidden cameras in the house legal? What if I want to guard against child abuse by a caregiver? – TheVictim Sep 25 '17 at 17:22
  • Video laws are tied more to the "expectation of privacy" under the circumstances. Also, a hidden camera cannot possibly "guard against child abuse". – Upnorth Sep 26 '17 at 3:29
  • Mmmm... I guess technically you're right - it can't "guard" against that, but I think my intention was clear - you suspect you babysitter and want to find out what's going on there when you're away. – TheVictim Sep 26 '17 at 21:20
  • "For instance, turning on your cellphone to record the conversation during a traffic stop, without the police officer's knowledge, would be a felony." - Are you sure? See aclu-nh.org/sites/default/files/wp-content/uploads/2016/04/… . It's from another state, but in the same circuit. – D M Nov 24 '17 at 19:37
  • @DM Yes, it's not a very persuasive authority in MA when a state court in a different state interprets the Constitutionality of its own state law (RSA 570-1:2) versus an MGL (ch. 272 s. 99) having dissimilar elements, being enforced in MA. I haven't thoroughly researched whether any MA courts have discounted the MGL's blanket prohibition on "secret" interception of audio of others, when narrowly applied to acts of public servants in public. – Upnorth Nov 26 '17 at 18:53

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