Montana
Reporter's Recording Guide
Last updated May 2020
CompareSummary
It is a violation of the state’s “privacy in communications” law to record either an in-person or telephone conversation or electronic communication without the consent of all parties, except under certain circumstances.
The state also prohibits recordings in violation of its hidden camera law.
Violators of both laws are subject to criminal penalties.
CompareIn-person conversations
It is unlawful to record a conversation “by use of a hidden electronic or mechanical device” without the knowledge of all parties to the conversation. Mont. Code Ann. § 45-8-213(1)(c).
The prohibition does not apply, however, to: 1) recordings by elected or appointed public officials or public employees when the recording occurs in the performance of an official duty; 2) recordings of individuals speaking at public meetings; 3) recordings of individuals given a warning of the recording; and 4) recordings of certain healthcare emergency communications, when the recording is made by the health care facility. Mont. Code Ann. § 45-8-213(2)(a). When one party provides a warning, either party may record the conversation. Id.
Because the statute explicitly applies only to hidden recording devices, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.
CompareTelephone and electronic communications
Montana’s “privacy in communications” law makes it unlawful to record a telephone conversation without the knowledge of all parties. Mont. Code Ann. § 45-8-213(1)(c).
The prohibition does not apply, however, to: 1) recordings by an elected or appointed public official or public employee when the recording occurs in the performance of an official duty; 2) recordings of individuals speaking at public meetings; 3) recordings of individuals given a warning of the recording; and 4) recordings of certain healthcare emergency communications, when the recording is made by the health care facility. Mont. Code Ann. § 45-8-213(2)(a).
The Montana Supreme Court held that a prison’s notification to inmates that their telephone conversations were subject to recording satisfied the warning requirement, and thus recordings of a criminal defendant’s telephone conversations with others did not violate the law. Montana v. DuBray, 77 P.3d 247 (Mont. 2003).
The statute also prohibits the recording of an electronic communication without the consent of all parties. Mont. Code. Ann. § 45-8-213(3). This provision applies to any transfer “of signs, signals, writing, images, sounds, data, or intelligence of any nature,” and thus would include texts or emails. Mont. Code Ann. § 45-8-213(4).
CompareHidden cameras
It is a misdemeanor to surreptitiously photograph or film any occupant of a home, apartment or other residence. Mont. Code Ann. § 45-5-223(1). The law also prohibits the secret photography or recording of parts of the naked body when the person has a reasonable expectation of privacy. Mont. Code Ann. § 45-5-223(2).
The law, however, does not criminalize the use of recording devices in areas to which the public has access or there is no reasonable expectation of privacy (e.g., filming conversations on public streets or a hotel lobby).
CompareCriminal penalties
Illegally recording an in-person or telephone conversation or electronic communication is a misdemeanor offense, and penalties increase with each conviction of the law, beginning with up to six months in jail and a $500 fine. Mont. Code Ann. § 45-8-213(4).
A violation of the hidden camera law is subject to up to six months in jail and a $500 fine, with harsher penalties for subsequent offenses. Mont. Code Ann. § 45-5-223(4).
CompareCivil suits
The statute does not authorize civil lawsuits against violators.
CompareDisclosing recordings
The state’s “privacy in communications” law prohibits the disclosure of printed or electronic images or videos of an identifiable person — without their consent — that either shows parts of the naked body or sexual conduct. Mont. Code Ann. § 45-8-213(1)(d). This prohibition only applies to disclosures intended “to terrify, intimidate, threaten, harass, or injure,” and specifically exclude “disclosures made in the public interest,” and disclosures related to “criminal or news reporting.” Mont. Code Ann. § 45-8-213(1)(d), (2)(b).
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.
CompareRight to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Ninth Circuit, which includes Montana, has held that there is a First Amendment right to record matters of public interest in public places, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).
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