The Massachusetts Wiretap Act prohibits a party from recording a telephone conversation without first informing the other party or parties participating in the conversation. In Heffernan v. Hashampour, the Superior Court held that the statute applies when a party outside of Massachusetts secretly records a telephone call to a party in Massachusetts.
Reza Hashampour was the Chief Executive Officer of Vianix Delaware, LLC, a Virginia-based software corporation. Vianix licensed software to Nuance Communications, Inc., a Massachusetts-based corporation. In 2007, Vianix filed a lawsuit against Nuance related to the software licensing agreement between the parties. Shortly thereafter, while he was in Virginia, Hashampour allegedly secretly taped multiple telephone conversations with Donna Heffernan, a Nuance employee, and several other Nuance employees, while they were in Massachusetts. During discovery in the dispute between Vianix and Nuance, Heffernan and the other employees learned that the calls had been recorded without their knowledge. They brought suit against Hashampour and Vianix for violation of the Massachusetts Wiretap Act. Hashampour and Vianix moved to dismiss on the grounds that Virginia law—which does not prohibit covert telephone recording—governed Hashampour’s actions.
The Court found that Hashampour’s motion to dismiss turned on whether Massachusetts or Virginia law controls in this situation. In reaching its decision that Massachusetts law applies, the Court relied on the Second Restatement of Conflict of Laws, § 152, which specifies that in invasion of privacy cases, “the local law of the state where the invasion occurred determines the rights and liabilities of the parties” and that “the place of invasion is the place where the plaintiff was at the time.” The Court therefore denied Hashampour’s motion to dismiss because the Massachusetts Wiretap Act governed the telephone recordings he made in Virginia unbeknownst to the Massachusetts participants.
Prior to the Heffernan decision, the District Court had reached the opposite conclusion, holding that such secret recordings were covered by the law of the state where the recording occurred. The Heffernan Court, however, found the District Court’s decision outdated because the SJC had since held that courts should look to the Restatement in conflict of law cases, which the District Court had not done.
Thus, the Heffernan decision provides individuals in Massachusetts with a basis for asserting claims under the Massachusetts Wiretap Act for any undisclosed recording of their telephone conversations, regardless of the location where the taping party places the call.