New Mexico

August 1, 2012

Summary of statute(s): It is an unlawful “interference with communications” to record a telephone conversation without the consent of one of the parties to the communication. But the statute does not prohibit recording an in-person conversation without such consent. N.M. Stat. Ann. § 30-12-1 (West 2012).

In-person conversations: Because the statute defines the unlawful recording activity as the “cutting, breaking, tapping or making any connection with any telegraph or telephone line, wire, cable or instrument belonging to or in the lawful possession or control of another, without the consent of such person owning, possessing or controlling such property” or “reading, interrupting, taking or copying any message, communication or report intended for another by telegraph or telephone without the consent of a sender or intended recipient thereof,” it does not apply to conversations not held over a telegraph or telephone wire. Id. And a state appellate court held that the transmittal of the contents of a face-to-face conversation recorded through a device concealed on one of the participants to the conversation was not the type of eavesdropping activity criminalized by the state wiretap statute. New Mexico v. Hogervorst, 566 P.2d 828 (N.M. Ct. App. 1977).

Electronic communications: The consent of at least one party to a telephone communication is required to record it. But because the prohibition is limited to communications via “telegraph or telephone line, wire, cable,” a journalist does not need consent to record conversations between two people using cell phones or other wireless devices, or to disclose the contents of text messages sent between wireless devices. N.M. Stat. Ann. § 30-12-1.

Hidden cameras: 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 (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an electronic communication is a misdemeanor offense. N.M. Stat. Ann. § 30-12-1.

Civil suits: Anyone whose wire communication 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 violation or $1,000, and can recover punitive damages, attorney’s fees and court costs as well. N.M. Stat. Ann. § 30-12-11.

Disclosing recordings: The statute does not specifically criminalize the disclosure of the contents of a wire communication obtained through illegal recording. However, the New Mexico Supreme Court held that the statute’s consent requirement refers to consent to the sending of the communication. Arnold v. New Mexico, 610 P.2d 1210 (N.M. 1980). Thus, based on this authority, a journalist should be sure to get consent to publish the contents of a recorded conversation.