Is it actually illegal to record conversations in MA?

September 10, 2009 10:50 AM

Does the requirement for two-party consent to record conversations in Massachusetts (and other states) really mean that I can't legally record any audio from public places without getting the consent of everybody who can be heard on the recording?

Massachusetts is a "two-party consent" state which means "it is a crime to record any conversation, whether oral or wire, without the consent of all parties" (Source) Does this mean that, technically, I can't do things like video/audio record a family party unless all parties consent to it? Is there an exception for conversations that occur in a public place? The law doesn't mention any exceptions, but it seems to be awfully overbearing without some "common sense" exceptions.

And yes, I know YANML, but this article brought the issue to my attention.

Thanks!

posted by um_maverick to Law & Government (6 answers total)

Response by poster: Also, I posted too soon, but do these kinds of laws generally apply to other types of communications? Can I technically not log my IM conversations in MA?
posted by um_maverick at 10:54 AM on September 10, 2009

You are overthinking this. The law is about phone recording, mainly. You should ask for permission to record a conversation if you don't have implied consent from all parties. The issue is really about publication of conversations. For example, metafilter users own their postings for copyright reasons and should to be approached (in a perfect world) before their comments are put on a non-metafilter site or into a book. I would never put someone on the radio if I didn't have their permission first. But consent is fluid.
posted by parmanparman at 11:14 AM on September 10, 2009

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication

The key word here -- as I understand it -- is secretly. If you're recording and the microphone/video recorder is clearly visible then there is an implied consent to be recorded.
posted by sbutler at 11:15 AM on September 10, 2009 [1 favorite]

Sorry, posted too soon. Consent is fluid in that if I am recording a conversation and publish it later I could justifiably show from previous communication with said person that I planned to interview them by phone and their agreement to do that, while not a legal document, is generally considered consent by default.
posted by parmanparman at 11:16 AM on September 10, 2009

The MA law is one of notification. You don't have to explicitly get consent, you just have to say you're recording. It's up to the other person at that point to decide if they want to continue the conversation (or whatever).
posted by rhizome at 11:27 AM on September 10, 2009

the statute seems particular to the phone / wire, so it wouldn't apply to recording conversations in public places. the privacy torts in your state will vary, but generally to be liable, the recorded person would have to show that they had a reasonable expectation of privacy. it's hard to show that when you're in public.

after that, i am sure there are some other legal concerns depending on what you then do with the recording.
posted by anthropomorphic at 11:40 AM on November 19, 2009