Reporter's Recording Guide
Last updated April 2020Compare
Recording a landline telephone call without the consent of at least one of the parties to the conversation is an unlawful “interference with communications” under New Mexico law. N.M. Stat. § 30-12-1. Based on the definition of “communications,” consent is arguably not needed to record conversations over cellphones or other wireless devices, but New Mexico courts have not yet clarified this. Consent is not needed to record in-person conversations. Id.Compare
Because New Mexico’s prohibition on unlawful interference with communications refers only to communications recorded via “telegraph or telephone line, wire, cable or instrument belonging to or in the lawful possession or control of another,” it does not extend to in-person conversations recorded without consent. N.M. Stat. § 30-12-1. Moreover, a state appellate court has held that disclosing the contents of a face-to-face conversation recorded through a device concealed on one of the parties to the conversation is not the type of eavesdropping activity criminalized by the state wiretap law. New Mexico v. Hogervorst, 566 P.2d 828, 834 (N.M. Ct. App. 1977).Compare
Telephone and electronic communications
The consent of at least one party to a telephone conversation is required to record it. N.M. Stat. Ann. § 30-12-1. But because the prohibition is limited to communications via “telegraph or telephone line, wire, [or] cable,” a journalist arguably does not need consent to record conversations between two people using cellphones or other wireless devices, or to disclose the contents of text messages sent between wireless devices. Id. However, the courts have not yet weighed in to clarify that the law does not cover cellphone calls, so journalists should proceed with caution.Compare
It is a misdemeanor to photograph or record “the intimate areas” of a person in a place where the person has a reasonable expectation of privacy, and to use a hidden camera, regardless of whether a person is in a public or private place, to “up-skirt” or “down-blouse,” or secretly photograph or record that person under or through his or her clothing. N.M. Stat. Ann. § 30-9-20. The law, however, does not criminalize the use of recording devices for other purposes in areas to which the public has access or there is no reasonable expectation of privacy (e.g., filming conversations on public streets or in a hotel lobby).Compare
Illegally recording a landline telephone conversation is a misdemeanor offense. N.M. Stat. Ann. § 30-12-1.Compare
Anyone whose landline telephone conversation has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $100 a day for each day of the violation, or $1,000, and can also recover punitive damages, attorney’s fees and court costs. N.M. Stat. Ann. § 30-12-11.Compare
Although the law does not specifically criminalize disclosing contents of a conversation obtained through illegal recording, the New Mexico Supreme Court held that the law’s consent requirement with respect to recording a conversation also applies to the disclosure of that conversation. Arnold v. New Mexico, 610 P.2d 1210, 1213 (N.M. 1980). Thus, based on this authority, the contents of a recorded landline telephone conversation should not be published without the consent of at least one of the parties to the conversation.
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.Compare
Right 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 Tenth Circuit, which includes New Mexico, has held that “there is a First Amendment right to film the police performing their duties in public.” Irizarry v. Yehia, -- 4th ----, 2022 WL 2659462, at *6 (10th Cir. July 11, 2022). The Tenth Circuit noted that this right “falls squarely within the First Amendment’s core purposes to protect free and robust discussion of public affairs, hold government officials accountable, and check abuse of power.” Id. at *9.Compare