Montana

Date: 
August 1, 2012

Summary of statute(s): It is a violation of “privacy in communications” to record either an in-person conversation or electronic communication without the consent of all parties, except under certain circumstances. Mont. Code Ann. § 45-8-213 (2011).

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. The prohibition does not apply, however, to the recording of: 1) elected or appointed public officials or public employees when the recording occurs in the performance of an official duty; 2) individuals speaking at public meetings; and 3) individuals given warning of the recording. Under this final exception, if one party provides the warning, then either party may record the conversation. 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. Id.

Electronic communications: It likewise is unlawful to record a telephone conversation without the knowledge of all parties, except when the communication is of an elected or appointed public official or public employee and occurs in the performance of an official duty or warning of the recording has been provided. Id. The Montana Supreme Court held that a prison’s notification to inmates that their telephone conversations were subject to recording satisfied this warning requirement and thus recordings of a criminal defendant’s telephone conversations with others did not violate the state wiretap law. Montana v. DuBray, 77 P.3d 247 (Mont. 2003).

Hidden cameras: It is a misdemeanor to surreptitiously photograph or record any occupant of a home, apartment or other residence. Mont. Code Ann. § 45-5-223. 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 (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a misdemeanor offense, and penalties increase with each conviction of the law. Mont. Code Ann. § 45-8-213.