When it comes to recording conversations in Massachusetts, we are a two-party consent state. This essentially means that both parties must be aware of the recording and/or have consented to the recording. The Massachusetts Wiretapping Statute, M.G.L. 272, Sec. 99(c) (1), provides that "any person who willfully commits an interception (defined as secretly hearing or secretly recording by means of an interception device), or aid another to secretly hear or secretly record, 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" will be fined and/or imprisoned. The broad definition of the crime includes concealing a cell phone video camera to obtain a video and audio recording without the consent or knowledge of all parties being recorded.
In Massachusetts, and other two-party consent states, the Wiretapping Statute has been misused by law enforcement officials to arrest individuals who have recorded them in the performance of their duties. An attorney in Massachusetts was charged with violating the Wiretapping Statute in 2007 for recording the arrest of an individual by police officers that he believed was conducted using excessive force. He made the recording without intruding upon the arrest, while holding his cell phone openly and in plain view of the officers, who later admitted that they were aware of the recording. Because of the open manner in which the recording was made, the Boston Municipal Court dismissed the charges. Moreover, the First Circuit Court of Appeals ruled in August of 2011 that the attorney had the right to sue the police officers for his false arrest because he had a clear First Amendment right to film the officers, who were acting as government officials in a public space. The Court noted that "[s]uch peaceful recording of an arrest in a public space that does not interfere with the police officers' performance of their duties is not reasonably subject to limitation."
A recent ABA Journal article, found at http://www.abajournal.com/news/article/recording_cops_on_smartphone, notes that other Courts have begun to issue similar holdings, including the Oregon Appeals Court. This trend towards protecting the right of citizens to exercise their First Amendment Rights to record public officials in the performance of their public duties, so long as conducted in a reasonable manner, allows the public to ensure that our police can be policed in the performance of their duties. The right of the public to police government officials in the performance of their duties is particularly important when it comes to police officers and other law enforcement officers because, as the First Circuit noted, they are "granted substantial discretion that may be misused to deprive individuals of their liberties."