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Montana

Reporter's Recording Guide

Last updated May 2020

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Summary

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.

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In-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.

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Telephone 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).

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Hidden 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).

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Criminal 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).

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Civil suits

The statute does not authorize civil lawsuits against violators.

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Disclosing 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).

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