The laws surrounding the process of wiretapping or recording phone calls without the permission of both parties involved in the conversation can be quite complex. Massachusetts is one of the states that are very restrictive when it comes to wiretapping. In fact, in a recent case, a woman was arrested for wiretapping when police found that she recorded her arrest using a phone in her purse.
Meanwhile, a number of people, including people with sensitive jobs, those involved in the complexities and emotional circumstances of a divorce or custody case, and people with access to the government may have reasons to be concerned about the idea of electronic eavesdropping and wiretapping.
In Massachusetts, wiretapping is covered by Section 99 of Chapter 272 of the Massachusetts General Laws.
Examples of Wiretapping
In Massachusetts, the law does not only cover electronic communication. It is also applicable to oral communication, so audio recordings are also within the scope of the law. Furthermore, while the federal wiretap law requires the consent of one party to record a conversation, Massachusetts requires that consent be given by all parties. Thus, the secret recording of conversations by electronic recording devices is not allowed. In fact, the mere possession of an electronic recording device where there is clearly a plan to intercept a conversation secretly is already considered to be a violation.
One example is the case of Michael Hyde, who was charged with violating the Massachusetts wiretap law in 1998 when he recorded his conversation with police officers on a tape recorder that he had in his car. The Supreme Judicial Court of Massachusetts declared that it was indeed a violation of the statute because it was not obvious to the police officers that they were being recorded.
If the recording is made obvious, then the law is not being violated. While the Massachusetts statute requires the consent of all parties involved in a conversation, the one doing the recording does not have to announce it as long all parties know that it is being recorded and that they have not objected to it.
The penalties that surround wiretapping as a crime are quite complex, and can depend on the circumstances that are involved in any given case. For instance, a crime of wiretapping that is conducted by a husband who is trying to gain evidence of his wife cheating for a divorce procedure might not receive penalties that are as high as those given for someone attempting to intercept government information to use for further crimes of treason or espionage.
The courts will establish penalties, however, for any person who intentionally intercepts, discloses, and uses any oral or wire communication through mechanical, electronic, or other methods. Additionally, penalties are also given to those who access information without authority - including communication that has been kept in storage but hidden behind a password.
The crime of wiretapping comes with a range of potential penalties - including both criminal and civil punishments for a violation of the wiretapping act. In other words, the combination of penalties could mean that you suffer from severe financial damage if you are found to be in violation of the law. A court may decide that it is appropriate to award damages to the victim of the eavesdropping action that took place, and the damages here will be calculated in a way that each day the continuation of the violation continues will give rise to higher amounts of damages.
What's more, the court can choose to force you to pay for the attorney fees of the other party, which is often higher than the amount of damages issued. Courts may also impose additional punitive damage orders if the violation in question was particularly malicious.
In Massachusetts, specifically, wiretapping is a felony. The penalties are as follows:
- Commiting or attempting to commit the interception - penalty is up to five years in a state prison or up to 2.5 years in jail, or a fine of up to $10,000, or a combination of imprisonment and fine.
- Using the information obtained from the illegal interception is a misdemeanor - penalty of up to 2 years in jail or a fine of up to $5,000, or both
Because of the strictness of the wiretapping law Massachusetts, defending against such a charge is very difficult.
- The best way to avoid a charge of wiretapping is to ensure that all of the information that you might gather through mechanical or electronic means is taken with the approval or consent of all the parties involved in the conversation.
- The defendant claims that it was obvious that he or she was recording the conversation and that nobody objected to it.
- The defendant claims that the recording was not intentionally done. For instance, he had already activated the recording device for a different purpose when the police approached him.
What to Do If You Have Been Charged
It is vital to consult with an experienced attorney if you have been charged under the Massachusetts wiretapping law. As mentioned above, this particular statute is one of the most restrictive in the US, and it is very difficult to find a defense against it. Furthermore, the police tend to use it to prevent people they are apprehending to make recordings of their arrests.
Thus, it is doubly important to obtain legal counsel as soon as possible if you have been charged with this offense. Experienced lawyers are likely to find a way to defend your set of particular circumstances.