Recording Law for Recording at Home in Montana

Montana’s wiretap law only bans recording a conversation with a hidden electronic or mechanical device without all parties knowing. If the device is openly visible, the law doesn’t require anyone’s consent, but this exception does not apply inside a private residence unless the occupant is aware of the recording. The statute specifically targets secret audio recordings of conversations, not visible recordings. For example, a phone placed on a table where everyone can see it isn’t a hidden device, so recording wouldn’t violate the law if the occupants are aware. Silent video recordings without audio are not covered by this provision at all.

A separate Montana law makes it illegal to secretly watch or record an occupant of a private residence without their knowledge, but this only applies to surreptitious visual observation or recordation within or in the vicinity of a private dwelling house, apartment, or other place of residence. If you openly record—like wearing a visible camera or holding a phone where others can see it—this law doesn’t apply, provided the occupant is aware of the recording. For instance, if you’re in a friend’s house and they know you’re recording a disagreement, you’re not breaking the law by using a device that’s clearly visible. The key difference is whether the recording is hidden or obvious to the people being recorded and whether the occupant is aware.

If someone records you in their home using a hidden device without telling you, they could violate Montana’s surreptitious visual-recording law under §45-5-223, which targets covert observation or recordation of an occupant within or near a private residence. But if they record openly—like with a phone on the table or a visible camera—and the occupant is aware, there’s no legal issue under Montana’s recording statutes. The law doesn’t require consent for open recordings when the device is visible and the occupant is aware, only for hidden ones. Penalties for violating the hidden-device rule can include potential criminal charges, depending on the circumstances.

Montana’s constitution protects a broad right to privacy, but this has mainly been applied against government searches and has not been used to restrict ordinary open recording in public spaces. The law here is narrow: recording the sexual or intimate parts of a person in a public place where they have a reasonable expectation of privacy could raise privacy concerns under §45-5-223, but this is a statutorily limited exception and does not broadly restrict recording in public. The safest approach is to avoid recording in spaces where people typically expect privacy, such as restrooms or fitting rooms, even if the device is visible.

Imagine you’re at a friend’s house and a heated argument breaks out. You pull out your phone and start recording openly so everyone can see it. Under Montana law, this is legal because the device isn’t hidden and the occupant is aware of the recording. If instead you hid a recording device in a drawer or under a pillow, that would violate the surreptitious visual-recording law under §45-5-223 because it’s a hidden recording without the occupant’s knowledge. The difference is whether the recording is obvious or secret and whether the occupant is aware.

If you’re in a situation where you’re not sure whether recording is allowed, the safest choice is to announce that you’re recording when using a hidden device, as this satisfies the statute’s knowledge requirement. While Montana law doesn’t require consent for open recordings when the device is visible and the occupant is aware, a clear announcement can prevent misunderstandings. If you’re recording in a space where people typically expect privacy—like a bathroom or a private office—avoid recording altogether, even if the device is visible. When in doubt, err on the side of not recording.