Is It Legal to Record a Conversation in Montana?

Statute · Penalty: mixed

Mont. Code Ann. § 45-8-213 (Privacy in communications) — current codification (2025 MCA, incorporating amendments through Ch. 686, L. 2025); secondary companion statute Mont. Code Ann. § 45-5-223 (Surreptitious visual observation or recordation — place of residence — public place — exceptions)

In-person vs. phone & video calls

§45-8-213(1)(c) (the recording-consent provision) covers "a conversation" broadly — it is not limited to telephone calls and applies to in-person conversations too, as long as it is captured "by use of a hidden electronic or mechanical device." A separate subsection, §45-8-213(3), addresses purposely "intercepting an electronic communication" (traditional real-time wiretap of transmitted signals/data), with its own parallel exception structure (public-official-duty exception; warning-given exception) but without the public-meeting exception found in (2)(a). So in-person and telephone/electronic recording are governed by a common knowledge/hidden-device framework, while real-time interception of electronic transmissions is a distinct sub-offense.

Recording in public

§45-8-213(1)(c) only prohibits recording via a "hidden" device without the knowledge of all parties. This element functions as a de facto open-recording/public-place exception: a visibly worn body-camera/wearable is not a "hidden" device, so recording with it arguably falls outside the statute's core prohibition entirely, regardless of location. The statute also contains an explicit knowledge-cure: under (2)(a)(iii), "persons given warning of the transcription or recording. If one person provides the warning, either party may record" — meaning that once one party announces the recording, the recording becomes lawful even if others don't affirmatively agree (functioning like a one-party-consent-after-notice rule layered on top of the nominal all-party-knowledge default). Montana's Constitution, Article II, § 10, separately guarantees a broad "right of individual privacy" that "shall not be infringed without the showing of a compelling state interest"; this has mainly been applied against government searches/monitoring (see State v. Goetz, 2008 MT 296, holding warrantless electronic monitoring of a suspect via a police informant's body wire implicated Art. II, §§ 10 and 11), but it is also cited as a potential basis for a private civil invasion-of-privacy claim against a private recorder in a place where a plaintiff had a genuine expectation of privacy.

Recording at home

§45-8-213 itself does not have a home-specific carve-out. However, §45-5-223 creates a stricter, separate offense for surreptitious visual observation/recording of an occupant "within or in the vicinity of a private dwelling house, apartment, or other place of residence," done without the occupant's knowledge (e.g., hiding, waiting, or loitering to watch/record). Penalties escalate with repeat convictions up to 5 years/$10,000 on a third-or-subsequent conviction. This provision is aimed at voyeuristic/covert surveillance of a residence rather than open recording of a dispute, so it would primarily matter if the wearable-device use case ever involved covertly recording inside someone else's home; it would not apply to an openly worn device capturing an incident that happens to occur inside a residence with the occupant's awareness.

Recording the police

No statutory law-enforcement-specific exception protects citizens recording police; instead, §45-8-213(2)(a)(i) exempts the OFFICER (public official/employee acting in official duty) from the hidden-device consent rule when the officer is the one recording — it does not restrict citizens recording officers. Because a citizen's wearable would not be a "hidden" device, and because police performing public duties in public are not engaged in a private "conversation" being covertly captured, §45-8-213 does not appear to bar recording an on-duty officer in public. Separately and more importantly, Montana sits within the Ninth Circuit, which has recognized a First Amendment right to record police performing official duties in public: Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995), and Askins v. U.S. Dep't of Homeland Security, 899 F.3d 1035, 1044 (9th Cir. 2018) ("The First Amendment protects the right to photograph and record matters of public interest... includ[ing] the right to record law enforcement officers engaged in the exercise of their official duties in public places.").

Video-only capture (no audio)

Not restricted by §45-8-213(1)(c) as written: the operative language criminalizes recording "a conversation" using a hidden device — i.e., it targets audio (speech) reproduction. Silent video with no audio captured is not "a conversation" and falls outside this provision. A separate, narrower statute, §45-5-223 (Surreptitious visual observation or recordation), restricts video-only recording only in two specific situations: (1) surreptitiously watching/recording an occupant of a private residence without their knowledge, and (2) recording the "sexual or intimate parts" of a person in a public place where they have a reasonable expectation of privacy. Neither applies to the general use case of openly wearing a device to record disputes/interactions in public.

What counts as a “private” conversation →

Montana's core audio-recording statute, Mont. Code Ann. § 45-8-213(1)(c), does NOT use a "private conversation" or "confidential communication" gate at all, and has no reasonable-expectation-of-privacy multi-factor test analogous to California's Flanagan v. Flanagan, 27 Cal.4th 766 (2002), or Washington's State v. Clark, 129 Wn.2d 211 (1996). The statute's operative language is broad and content/location-agnostic: it is unlawful for a person who "records or causes to be recorded a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation ... without the knowledge of all parties to the conversation." (Independently re-fetched and confirmed verbatim, byte-for-byte, directly from Montana's official MCA site, mca.legmt.gov, via raw HTML pull — not AI-summarized.) There is no statutory definition of "conversation," "private," or "confidential" anywhere in § 45-8-213 — subsection (6)'s definitions list covers only "digitally fabricated," "electronic communication," and "interactive computer service," confirmed by direct inspection of the full current text. No Montana appellate case was found construing "conversation" narrowly the way CA/WA courts have construed their own statutes' privacy-content elements; the one on-point Montana case identified, State v. DuBray, 2003 MT 255, 77 P.3d 247 (Mont. 2003) (existence and holding corroborated via RCFP's Montana recording-law page after direct opinion-text retrieval was blocked by paywalls/403s), addresses only whether posted prison notice satisfies the (2)(a)(iii) warning requirement — it does not construe "conversation" itself, so it does not undercut this claim and in fact reinforces the warning-cures-knowledge mechanic described below. Instead, the threshold gate in Montana is a MANNER-OF-RECORDING gate, not a content/location gate: the dispositive question is not "was this conversation private?" but "was the recording device hidden from the parties?" If the device is open/visible, § 45-8-213(1)(c) is never triggered — full stop — regardless of subject matter, location, or whether a reasonable person would expect privacy. Only if the device is hidden does the statute's knowledge requirement kick in, and even then it is satisfied cheaply: § 45-8-213(2)(a)(iii) provides "persons given warning of the transcription or recording. If one person provides the warning, either party may record" (confirmed verbatim). Separately, a narrower, distinct statute — § 45-5-223(2) (surreptitious visual observation/recordation of "sexual or intimate parts" in a public place) — DOES use a genuine reasonable-expectation-of-privacy test, with the operative phrase "without the other person's knowledge when the victim has a reasonable expectation of privacy" (confirmed verbatim against mca.legmt.gov). That provision is narrow (intimate-body-part imagery only) and has no bearing on ordinary conversation-recording by smartglasses; it does not supply a general privacy gate for § 45-8-213. A conversation captured by a HIDDEN device in Montana must first clear a knowledge threshold — "without the knowledge of all parties" under § 45-8-213(1)(c) — and because § 45-8-213(2)(a)(iii) lets a single participant's warning satisfy that knowledge requirement for everyone (a reading corroborated by State v. DuBray, 2003 MT 255, 77 P.3d 247 (Mont. 2003), holding posted notice sufficed), hidden-device recording functions as a one-party-consent-after-notice regime (announce it and either party may record); but if the device is openly worn/visible rather than hidden, the statute's gate is never triggered at all, and NO consent, notice, or knowledge from anyone is required, regardless of location or subject matter — meaning Montana's "hybrid" classification is driven entirely by whether the recording device is hidden, not by whether the conversation content was "private." This is fully consistent with the verified statutory text and with the existing row's own plain_rule_summary and video_only_status: "unrestricted."

Biometric / voiceprint law →

Consumer Data Privacy Act (Mont. Code Ann. § 30-14-2801 gives the statutory short title as simply "Consumer Data Privacy Act"; commonly called the "Montana Consumer Data Privacy Act" / MCDPA). A comprehensive consumer-privacy statute (CT/VA-model) with a biometric-data provision folded in as "sensitive data" — NOT a dedicated BIPA/CUBI/WA-style biometric-specific law. — § 30-14-2802(4)(a) defines "biometric data" as "data generated by automatic measurements of an individual's biological characteristics, such as a fingerprint, a voiceprint, eye retinas, irises, or other unique biological patterns or characteristics that are used to identify a specific individual" — voiceprints are expressly covered. IMPORTANT CARVE-OUT (verified, previously omitted from the research): § 30-14-2802(4)(b) explicitly excludes from "biometric data": "(i) a digital or physical photograph; (ii) an audio or video recording; or (iii) any data generated from a digital or physical photograph or an audio or video recording, unless that data is generated to identify a specific individual." Practical effect for live.law: raw audio/video captured by the glasses is NOT "biometric data" under MCDPA by itself — the statute is only implicated if data is extracted from that audio/video for the purpose of identifying a specific individual (e.g., deriving an actual voiceprint for speaker ID/matching). "Sensitive data" (§ 30-14-2802(28)(b)) includes "the processing of genetic or biometric data for the purpose of uniquely identifying an individual." Under § 30-14-2812(2)(b), a controller may not "process sensitive data concerning a consumer without obtaining the consumer's consent" (opt-in), subject to the COPPA carve-out for known children. "Consent" (§ 30-14-2802(6)(a)) requires "a clear affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement," excluding general ToS acceptance, passive/dark-pattern actions. No Montana case law construes "process"/"collect" as applied to momentary, non-stored biometric matching (nothing like Cothron v. White Castle), so whether a transient, non-retained voiceprint comparison (vs. stored enrollment) triggers the consent duty remains unresolved. The Act only binds controllers meeting the § 30-14-2803 scale thresholds (≥25,000 MT consumers, or ≥15,000 with >25% revenue from data sales), so a smaller-scale deployment may fall outside the statute entirely.

Attorney ethics (ABA Formal Op. 01-422) →

Montana does not appear to have taken an independent position - through either a State Bar of Montana Ethics Committee opinion or a Montana Supreme Court disciplinary/case decision - on whether a lawyer's undisclosed recording of a conversation violates the Rules of Professional Conduct. I independently pulled the State Bar of Montana's complete published ethics-opinion index (organized rule-by-rule across the full Rules of Professional Conduct, Rule 1.1 through Rule 8.4, 70+ numbered opinions total) and confirmed none address recording, taping, surreptitious recording, or wiretapping in any context. Under Rule 8.4 specifically, the index lists five opinions - No. 850820 (public/private representation), No. 940112 (former-client conflicts), No. 951229 (ex parte contact with a witness under pretext), No. 050317 (deputy county attorney as witness), and No. 112314 (client provides false information in a bankruptcy matter, addressing candor/truthfulness) - none of which touch recording. Cross-checking against a comprehensive secondary source, the New York City Bar's Formal Opinion 2003-02 (verified by fetching and quoting the opinion directly), that opinion catalogs jurisdictions that took a position after ABA Formal Opinion 01-422 (Virginia, Michigan, Minnesota, Hawaii, Tennessee, Kentucky, Arizona, Maine, Kansas, Utah, Oklahoma, Ohio, NYCLA, and the NYC Bar's own middle-ground rule, among others) - Montana is not among them. Montana IS named once elsewhere in that same opinion, but only in footnote 10, which quotes a 1998 law-review survey (Stacy L. Mills, 37 Brandeis L.J. 415 (1998)) listing twelve states whose wiretap statutes make non-consensual recording illegal (California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania, Washington) - a statutory-legality footnote, not a citation to any Montana ethics-opinion position on the professional-responsibility question. No Montana Supreme Court disciplinary opinion on point turned up in searches of case-law aggregators (CourtListener, Google/Bing/DuckDuckGo, Google Scholar) either, though direct access to Montana's Office of Disciplinary Counsel case database was not available. In short: Montana has neither adopted the ABA 01-422 rule, nor rejected it in favor of a per-se/Formal-Opinion-337-style rule, nor staked out a middle-ground position - the question appears simply unresolved by Montana's own ethics authorities. The only clearly governing text is Montana Rule 8.4(c), which tracks the ABA Model Rule language ("It is professional misconduct for a lawyer to... engage in conduct involving dishonesty, fraud, deceit or misrepresentation"), with no Montana-specific gloss on recording. Practically, most jurisdictions that have opined on this (in the ABA 01-422 line) condition any "not per se unethical" conclusion on the recording being legal where made; Montana's own wiretap statute (Mont. Code Ann. Section 45-8-213, requiring notice to all parties for many private communications, subject to a one-party-announced-warning exception under 45-8-213(2) - already covered elsewhere in this dataset) would matter to that legality question if Montana ethics authority ever addressed it, but no Montana ethics opinion has drawn that connection because none exists on this topic to date.

Can you personally sue over a violation?

Not directly under this statute — enforcement here is criminal/regulatory, not a private lawsuit.

Can I record as a guest in someone else's home?

Montana doesn't lean hard on where you're standing — recording as a guest in someone else's home is treated much like recording anywhere else in the state.

What if I'm on a call with someone in another state?

Which state's rule actually governs an interstate call touching Montana isn't clearly settled. The safest approach is still to follow whichever state — yours or theirs — requires more from you.

This is a newer, less-settled corner of the law — our own research is still being refined here, so treat this as a starting point, not a final answer.

If it's legal to record, can it still be used against me later?

Usually, yes. Being legal to record and being protected from a future court case are two different questions — a legal recording can generally still be obtained by the other side later. Recording your own conversation with your own attorney is a separate, more protected situation, but almost everything else — a landlord, a police officer, a family member — isn't automatically off-limits to opposing counsel just because it was legal to capture.