Is Massachusetts a two-party consent state?

Interception at § 99(B)(4) 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".

There is no expectation-of-privacy element at all. "Oral communication" at § 99(B)(2) is defined merely as "speech, except such speech as is transmitted over the public air waves by radio or other similar device". Commonwealth v. Hyde, 434 Mass. 594 (2001), held the statute "strictly prohibits all secret recordings by members of the public" and contains nothing protecting a recording on the basis of privacy rights, rejecting the argument that on-duty police officers had no privacy expectation.

Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020), carved a First Amendment exception for secret recording of police performing official duties in public, so long as the officer cannot reasonably conclude the filming interferes with those duties.

Because secrecy is the element, the recording is lawful if the act of recording is not concealed. Hyde says so almost as instruction: "The problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight."

Commentary on Commonwealth v. Curtatone frames the test as: it is the act of hearing or recording itself that must be concealed. So a verbal announcement at the start suffices and no affirmative yes is required. Continuing to speak after notice does not need to be characterised as implied consent at all, because disclosure alone defeats the "secretly" element.

No authority was found on whether a beep, or a written invite notice alone, makes a recording non-secret. Treat those as unresolved and say it out loud.

Interception under § 99(C)(1): a fine of up to $10,000, state prison up to five years, or up to two and a half years in jail or a house of correction, or a combination. Unlawful disclosure or use under § 99(C)(3) is a misdemeanor punishable by up to two years or a fine up to $5,000, or both.

Private right of action under § 99(Q): actual damages with a floor of $100 per day for each day of violation or $1,000, whichever is greater, plus punitive damages and reasonable fees and costs.

No rule settles which state's law applies to a conversation spanning two of them, several may apply at once, and courts have reached opposite results on comparable facts. If anyone in the meeting is in Massachusetts, the practical answer is to satisfy Massachusetts. The general problem is on the US overview.

Because the element is secrecy rather than consent, the sentence only has to disclose. It does not have to ask.

Before we start: I'm recording and transcribing this meeting so I have accurate notes. It runs on my own laptop and nothing is uploaded.

Asking anyway is still worth doing, both because it is the decent thing and because someone else on the call may be somewhere that wants agreement rather than disclosure. Longer versions are on telling people you're recording.

Earkeep records continuously and announces itself to nobody: no bot in the participant list, no banner on anyone else's screen. Where every participant's agreement is what makes the recording lawful, that means the whole of the obligation sits on you saying something, and the app will not remind you.

What it gives you is somewhere to go when the answer is no. A pause from the live edge releases the microphone and the system audio stream, so your operating system's own recording indicator goes dark in front of the person who asked. A meeting on a connected calendar can be marked never-record, so a standing meeting is decided once. And a stretch of the day, or a saved meeting with its transcript, can be purged: the lines come out of the file on your own disk and nothing is written in their place, with no server copy anywhere. The one caveat is that it is not recoverable either.

None of that makes a recording lawful in Massachusetts. Consent law is about the recording, not about where it is stored, so the fact that transcription runs on your own device and the audio is never written to disk is not an answer to the statute. It is an answer to a different and often more pressing question in the room.

• RCFP, Reporter's Recording Guide: Massachusetts
• Mass. Gen. Laws ch. 272, § 99
• Commonwealth v. Hyde, 434 Mass. 594 (2001)
• Boston Bar Journal analysis

• US recording laws, state by state: the federal baseline, the cross-border problem, and all 51 jurisdictions.
• Telling people you're recording: the scripts, and the three ways to stop.
• Private by design: why the audio never leaves your computer.

This page is legal information, not legal advice. It summarises statutes and cases rather than replacing them, and we are not lawyers. If the answer matters, ask someone who can be held to their answer.