feel that the district court to discuss at all and that is the illegal tape recording of the calls at issue as set as courts i am sure aware in massachusetts it's illegal to secretly intercept the calls of another judicial court is stated in the case of commonwealth be high in your two thousand and eleven which involved a defendant secretly recorded calls or or a conversation between he and police officers in massachusetts the supreme judicial court has declared that is the end of the legislature to strictly prohibited all secret audio recordings were made without the knowledge or permission of the other party the fact in the in this recorded the call she says she didn't elect to record the calls at all so the evidence before the trial court was that neither the appellant nor the person who is alleging or i'm sorry that placed the calls herself recorded the calls in fact as the lorenzo testifies that in the event that she had known that the calls would have been recorded she would not have elected to do so that was the state of the factual dispute that was before the district court so we actually have a situation where there is a factual issue as to whether anyone consented to the telephone or to the recording of these these calls  she did not have black to make the recording either that neither my client the appellant nor the person who placed the call elected to have this this call recorded so and that's the state of the evidence testimony she asserted her right under under the fifth amendment but the facts that were before the trial court summary judgment were that neither party consented to the telephone to this call being recorded but yet we have the call recorded and in the testimony from the owners of spoof card we know why that's the case that's how this product works as as the owner of telapak testified they never obtained the consent  the person being spoofed otherwise you're not able to make these clandestine calls and the utility of the product is destroyed so in massachusetts even though telapak has made hundreds of thousands of dollars selling this product in the massachusetts has specifically targeted massachusetts in its advertising every time a spoof card call is recorded it is an violation of a criminal act in this state what about causation invasion of privacy and invasion of privacy is actionable on iraq ninety three day and in connection with the damages issue damages are are defined in massachusetts under ninety three a day as the as the by the s j c saying that's not quite so does your position and i'm damages assume that we would hold that the mere violation are placed into a randomizer and used to advertise this product so my client testified that she suffered emotional distress not only from the fact that the calls were made in these these terrible calls threatening her with sexual assault but but also based on the fact that the calls themselves were tape recorded but but we don't know your honour's how the district court would have addressed that issue because the district court in the dress at all and there's no reference in the ten a decision issued by the district court to even the statute itself there's not a reference to chapter two seventy two there is no mention in the decision yet i chose that because it's civically involves not only this statute but this statute constitute a violation of the statute constituting invasion of privacy itself so that's discussed in that opinion and in some in some lank and we think that that's that's the that's the case that is the closest mark to our case and actually addresses reciprocally some of the issues involved you know obviously we  it is a blank slate but in connection with the invasion of privacy that we have to face in your two thousand i you're also there also very few some other decisions in an invasion of privacy lorenzo saw the advertising saw that this product was advertised to tape record without permission saw that it was so it advertised in order to make the very kind of harassing call that was made in this case and the only testimony that we have from her on that point is inconsistent at best at one point during the course of her deposition during my questioning of her she admits that she doesn't remember what she saw but what we do know is that she used this product in the exact manner that this product was advertised on the web site and for the exact purposes that were specifically highlighted by bicycle the card for it for its usage so we talk some length and a brief about the advertising element of it but i did want to spend my time this morning addressing the point that the district court did not address at all and that was it in connection with the tape recording issue and the advertising the testimony porson that's party's mission which we also argue with i understand that's on the recording sun yes and there's advertising that in the could you just say one thing about the terms of service and what relevance that has i thought there was a terms of service provision that when they tape recording of any all without their permission of the other side which happens each and every time this our product is used is a violation of the criminal statute and immunize yourself from liability by putting  the undisputed evidence this case showed that recording could only be a call by calling person pressing a peculiar but in the so your client is recording a phone call that's correct when one person in that conversation has instructed to do so without any effort to even seek the consent of the other person isn't that a slam dunk client has done it gets a signal from a button pressed by one person to a two party call and it then records your honor that is a different situation in that my client  there is no way to tell where a call is being made from where anyone is going to use minutes that they purchased on the system there is simply no way that you could do that and if so how is that a defense causation section well now you're talking about whether there's a violation you're talking about was causation and harm but we're here we're having trouble i'm having trouble understanding how this isn't just a flat out violation of the law and maybe even if it is there's no causation or damages you win but i still heard any reason at all how your client can possibly claim that it can record calls knowingly without having any violate the law he does not have any knowledge of it commits a recording without consent of both parties without knowing it has been sent to both parties that's got to be true  with yes your honor there was specific information on the website where you went to sign up to purchase the met is that in the red this record yes your honor it is that specific contains the terms of service and there's a particular provision that says if you are going to use this recording capability you need to check to make sure that it's legal not only your state but in the state in which the person you were called ok so if on the private eye and i come to your house and us me to take a court a conversation you're going to have that afternoon with joe blow i'm off the hook if i said you did you get those consent you say but i never get the you're now telling us you read your agreement as including a representation by users that they will first obtain consent that's exactly the hypothetical i just asked your honor i think that our argument does not matter does the weight of our argument does not matter whether we have actually violated that ok so you think the fact is again i can see and i know but if i concede that this would be a violation action then we move to the next step and that is is there any causation in this case and the answer to that now can i ask if there's a price not just through i understand how the law works or the statue we're talking about is two seventy two right so it's a unclear question under massachusetts law that's ok and you can see the district were never addressed any of that is correct so is there any reason why we wouldn't have the district court remain and now address that it was properly raised it's a close question it's been completely on the draft is there any reason not to have the district court address that i think that the question is irrelevant in the sense that it does not need to be addressed to this court does not need recordings were made and maybe cycled is part of the advertising you know truth is being that of saturn caused her emotional distress your honor i see no citation to that point anywhere in  the brief or ok so what a shame that she suffered was emotional distress and other harm in two thousand she did not learn that these recordings even existed until two thousand and twelve or to the records a little less clear but there is no way what i understood was the other ninety three a theory which is that you were marketing this product you know way that induced or encourage or supported the notion that it could be used for harassing conduct through the testimonials page yes and that that makes it an unfair product and that it would be reasonably foreseeable that people would in fact use the product that way you know it had other legitimate uses yes progressing conduct ok ron what i'm saying if yeah but there are some legitimate uses i would think there might be an argument that that's an unfair product and it's reasonably foreseeable that somebody is going to use it in that bad way and i needn't prove that the particular person who used that actually saw that advertising or are you saying that in any case the only way an advertising case of this kind can work is if you can prove that the person who used the party actually saw that advertising yes on that is what we're saying that's i believe what is walsh has conceded because her complaint and the briefing good for this type of use know your honor if this is addressed in our brief with since i taisha it's the people that told her about it in fact all they were doing was calling each other up at a party at showing her that you could use somebody else's number so that yes they were doing that but there is absolutely nothing illegal about that is absolutely permissible under federal and s