Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

Massachusetts

Current status

Massachusetts has a very restrictive wiretapping law that prohibits the recording, interception, use or disclosure of any conversation or communication without the consent of all parties. The interception law equally addresses persons who participate in conspiracies or who are accessories to illegal eavesdropping.

The state also has a video surveillance law, but only focuses on nudity or sexual content. However, the state’s general laws establishes the citizen’s right against unreasonable, substantial or serious interference with his privacy, under the jurisdiction of The Superior Court. Massachusetts wiretapping statute does not reference electronic communications.

Impact of law

In Massachusetts, one can record or intercept a private communication if only he or she notifies and has the consent of all parties engaged in said communication. However, the law specifically addresses only oral and wire communication.

Punishments apply to any person who willfully commits, attempts to commit, or procures another person to commit an interception, to any person who uses or disclosed the contents of such interceptions, as well as to any person who is an accessory or who participates in a conspiracy to commit an interception. The same punishments as for the respective offenses apply to accessory and conspiracy to interception.

References to Physical TSCM

The law uses a very inclusive phrase to reference eavesdropping devices. Interception means to secretly hear or record communications “through the use of any intercepting device”. Such a broad phrase endorses the assumption that is is the lawmaker’s intention to keep this context as open as possible and the expression itself can be considered to describe any available wiretapping device.

An important mention is that under Massachusetts law, the sole proof of illegal installation of any intercepting device is considered prima facie evidence.

References to Cyber TSCM

The law does not reference electronic communications. However, the broad context set for interception of wire and oral communications does not exclude the use of cyber means of interception wire and oral conversations. For instance, the term content is defined as “any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning” of a communication. This is also a broad definition that could include cyber means of interception.

Criminal implications

Illegally intercepting an oral or telephone conversation is punishable by a fine of up to $10,000 and imprisonment of up to five years. Disclosing or using informations obtained through illegal interception is punishable by a fine of up to $5,000 and imprisonment for up to two years. Accessories and conspiracies are punished as for the respective offenses.

While recording another person without consent, when the person is nude or partially nude is punishable by imprisonment of up to two-and-a-half years and a $5,000 fine. However, distribution of such content double sentences – up to five years in prison and fine up to $10,000.

Civil implications

Any victim of illegal interception shall have a civil course of action, and may be entitled to recover actual damages of either $100 per day for each day of violation or $1000,whichever is higher, plus punitive damages and attorney’s fee and other litigation costs.

Code excerpts

Mass. Ann. Laws Ch. 272 Section 99[1]. Interception of wire and oral communications

  1. Definitions. As used in this section
  2. The term “wire communication” means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception.
  3. The term “oral communication” means speech, except such speech as is transmitted over the public airwaves by radio or other similar device.
  4. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication […]
  5. 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;
  6. The term “contents”, when used with respect to any wire or oral communication, means any information concerning the identity of the parties to such communication or the existence, contents, substance, purport, or meaning of that communication.
  7. Offenses.
  8. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both.

Proof of the installation of any intercepting device by any person under circumstances evincing an intent to commit an interception, which is not authorized or permitted by this section, shall be prima facie evidence of a violation of this subparagraph

  1. Disclosure or use of wire or oral communications prohibited.

Except as otherwise specifically provided in this section any person who—

  1. willfully discloses or attempts to disclose to any person the contents of any wire or oral communication, knowing that the information was obtained through interception; or
  2. willfully uses or attempts to use the contents of any wire or oral communication, knowing that the information was obtained through interception, shall be guilty of a misdemeanor punishable by imprisonment in a jail or a house of correction for not more than two years or by a fine of not more than five thousand dollars or both.
  1. Any person who permits or on behalf of any other person commits or attempts to commit, or any person who participates in a conspiracy to commit or to attempt to commit, or any accessory to a person who commits a violation of subparagraphs 1 through 5 of paragraph C of this section shall be punished in the same manner as is provided for the respective offenses as described in subparagraphs 1 through 5 of paragraph C.
  1. Civil remedy.

Any aggrieved person whose oral or wire communications were intercepted […] shall have a civil cause of action against any person who so intercepts, discloses or uses such communications or who so violates his personal, property or privacy interest, and shall be entitled to recover from any such person—

  1. actual damages but not less than liquidated damages computed at the rate of $100 per day for each day of violation or $1000, whichever is higher
  2. punitive damages; and
  3. a reasonable attorney’s fee and other litigation disbursements reasonably incurred

Mass. Ann. Laws Ch. 272 Section 1B[2]. A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

Mass. Ann. Laws Ch. 272 Section 105[3].

(a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Electronically surveils” or “electronically surveilled”, to view, obtain or record a person’s visual image by the use or aid of a camera, cellular or other wireless communication device, computer, television or other electronic device.

(b) Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 21/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.

(c) Whoever willfully disseminates the visual image of another person who is nude or partially nude, with knowledge that such visual image was unlawfully obtained in violation of subsection (b) and without consent of the person so depicted, shall be punished by imprisonment in the house of correction for not more than 21/2 years or in the state prison for not more than 5 years or by a fine of not more than $10,000, or by both such fine and imprisonment.

 

 

[1] Source: https://malegislature.gov/laws/generallaws/partiv/titlei/chapter272/section99

[2] Source: https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleI/Chapter214/Section1B

[3] Source: https://malegislature.gov/laws/generallaws/partiv/titlei/chapter272/section105