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This question pertains to whether someone can record me without my consent in MA. The location is an amusement park, which is a private space open to the public. Suppose that we go on a roller coaster where it is only me and one other person on an enclosed cart. Moreover, the rollercoaster explicitly forbids cellphones. Does there exist reasonable expectation of privacy to make illegal being secretly recorded without my consent by the other party with a cellphone?

I am torn on this one. On the one hand, it is a public place. On the other hand, the conversation happens in a “private space” and it is recorded with a medium not expected to be present, per the explicit prohibition.

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  • Are you sure the amusement park is not private property? Oct 22, 2023 at 1:20
  • Now that you mention it, I am not sure how that plays out with the expectation of privacy @BlueDogRanch Oct 22, 2023 at 1:29
  • Because the owners of private property can restrict photography and recordings and so there could be an expectation of privacy; photography and recordings can't be restricted in true public space and you have no expectation of privacy. Oct 22, 2023 at 1:43
  • @BlueDogRanch so to clarify, you think given a private-property owner explicitly restricts photography and recordings, in this case there’s expectation of privacy, correct? Oct 22, 2023 at 1:56

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The "expectation of privacy" originates in Katz v. US, and is rooted in the Fourth Amendment. This case resulted in a variety of state laws restricting wiretapping, which often apply to secret audio recordings. That expectation is defined not in terms of a particular recording device, but rather in terms of the expectation that you will not be overheard. For example, when you are in your home, you have the greatest reasonable expectation of privacy. If you are speaking at a public meeting, you have zero reasonable expectation of privacy. If it is reasonable to expect that you will be overheard, then you do not have a reasonable expectation of privacy.

For Massachussetts, the relevant case is Commonwealth v. Anthony Jackson. The concept of "reasonable expectation of privacy" is irrelevant, and the statute instead refers to "secretly hear, secretly record, or aid another to secretly hear or secretly record". The court rejects application of California's "reasonable expectation of privacy" standard. So in Massachusetts, the relevant consideration would be whether the recording was done secretly.

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