Massachusetts wiretapping law when the other party informs of possibly being recorded?

Question

The State of Massachusetts has a wiretapping law that is describe by DMPL.com as follows:

Massachusetts's wiretapping law often referred to is a "two-party consent" law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium. See Mass. Gen. Laws ch. 272, § 99. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not "secret"). Under Massachusetts's wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

This law applies to secret video recording when sound is captured. In a 2007 case, a political activist was convicted of violating the wiretapping statute by secretly recording video of a Boston University police sergeant during a political protest in 2006. The activist was shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. As part of the sentencing, the court ordered the defendant to remove the footage from the Internet. From this case, it appears that you can violate the statute by secretly recording, even when you are in a public place. However, in a 2011 case, the U.S. Court of Appeals for the First Circuit held that recording police activity in public is independently protected by the First Amendment, and that it is unconstitutional for the state to prosecute those recording the police in public under Massachusetts's wiretapping law; this ruling might protect secret as well as open recordings.

In addition to subjecting you to criminal prosecution, violating the Massachusetts wiretapping law can expose you to a civil lawsuit for damages by an injured party.

I am breaking this law 100% of the time when I use my cellphone because I have an app that auto records all the phone calls I make or receive. I do so to keep a record of important conversation I have with companies (for cases where they back off from their promises). Now, usually when I place the phone call I hear an automated system say something along the lines of this phone call may be recorded for blah blah blah.... Am I still breaking that law if they told me they "may be" recording? Am I still legally obligated to inform the other side that I am recording?

In the case that I have to inform them regardless, can I use the same technique they use and inform the automated system (for x press 1, for y press 2, etc) that they are being recorded - will that cover my bases? Or I have to inform each time I get a real person on the line? And each time I get transferred to someone else?

Answer 1

You just have to make sure that the counter party knows they are being recorded.

Imagine the cops got your phone and charged you with wiretapping. How would you demonstrate to the court that the counter parties were informed of the recording? That's the question you want to be able to answer.

You can use an automated system. Some automated systems not only inform the caller that they are being recorded, but also beep periodically through the call to remind them that they are still being recorded.

Answer 2

Yes, in a two-party state you are breaking the law. Consent is implied when you play a "this call may be monitored..." to the parties at the beginning of the call, so that they have the option to hang up. From experience, you know that you only hear that message at the beginning of a phone call, not whenever some new person comes on the line. I don't know of any case that tests the obvious problem that A hearing the message and staying on the line (implicitly consenting) does not mean that the person B who the call is transferred to has also implicitly consented.