Recording Law for Employers & Businesses in Montana

Montana’s wiretap statute, Mont. Code Ann. § 45-8-213(1)(c), makes it unlawful to record or cause to be recorded a conversation by use of a hidden electronic or mechanical device without the knowledge of all parties to the conversation. The dispositive factor is whether the device is hidden, not whether all parties know about the recording. If the device is not hidden, the recording does not violate this provision regardless of whether all parties are aware. The statute also provides a simple way to satisfy the knowledge requirement even with a hidden device: one person can announce the recording, and that warning makes the capture lawful for everyone involved under § 45-8-213(2)(a)(iii). In practice, businesses in Montana can openly record employee-customer interactions with smartglasses without needing to obtain advance consent from each person, provided the device is not hidden.

A device is "hidden" under Montana law if it is not obvious to the people being recorded. For smartglasses, this means the camera or microphone should be clearly visible and not obscured by clothing, bags, or other objects. If the glasses are worn openly on the face, they are not considered hidden. The statute does not define "hidden" further; instead, the operative gate is whether the device is concealed from the parties to the conversation. If the device is tucked into a pocket, bag, or worn under clothing, it is likely to be treated as hidden. The burden is on the recorder to ensure the device is not concealed.

Montana’s § 45-8-213 does not restrict silent video recording in public spaces or most workplaces, because the statute only targets audio recordings made with a hidden device. If your smartglasses capture video without audio, or if the audio is disabled, the recording is not covered by § 45-8-213. A separate, narrower statute, § 45-5-223, restricts video-only recording only in two specific situations: (1) surreptitiously watching or 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 or interactions in public.

Montana’s wiretap statute does not bar citizens from recording police officers performing official duties in public. The hidden-device consent rule only exempts the officer when the officer is the one recording, and a visibly worn device is not "hidden." Because police performing public duties in public are not engaged in a private "conversation" being covertly captured, § 45-8-213 does not bar recording an on-duty officer in public. Separately, the Ninth Circuit, which covers Montana, has recognized a First Amendment right to record police performing official duties in public under 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). As long as the recording device is not hidden, employees can openly record interactions with law enforcement without violating Montana’s wiretap statute. This right applies even if the officer objects or asks the employee to stop recording.

Montana’s Consumer Data Privacy Act (MCDPA) includes biometric data as "sensitive data," but it explicitly excludes raw audio or video recordings from the definition of biometric data under § 30-14-2802(4)(b). The law only applies if your business meets the MCDPA’s applicability thresholds (≥25,000 MT consumers, or ≥15,000 with >25% gross revenue from data sales) and extracts biometric identifiers—such as a voiceprint for identification—from the recordings and processes that data for identification purposes. If you are merely storing or reviewing the raw audio/video, the MCDPA does not impose additional consent requirements. The practical effect is that 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.

Imagine your employee wears smartglasses with a visible recording indicator while assisting a customer during a dispute. The glasses are clearly on the employee’s face, and the customer is aware the interaction is being recorded. Under Montana law, this is lawful because the device is not hidden. Even if the customer objects, the employee does not need to stop recording, as long as the device remains visible. If the employee later extracts a voiceprint from the recording to identify the customer, the MCDPA’s biometric consent rules would apply if the business meets the law’s applicability thresholds and processes the extracted voiceprint for identification purposes. Raw audio or 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.

Montana’s § 45-8-213 does not contain a home-specific carve-out, but a separate statute, § 45-5-223, creates a stricter offense for surreptitious visual observation or 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 or record). Penalties escalate with repeat convictions up to 5 years/$10,000 on a third-or-subsequent conviction. This provision targets voyeuristic or covert surveillance of a residence rather than open recording of a dispute. If the wearable device is openly worn and the occupant is aware of the recording, § 45-5-223 would not apply, because it is aimed at covert surveillance rather than open capture.

Even when a recording device is openly worn, 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 or monitoring, 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. The statute’s hidden-device gate is a manner-of-recording gate, not a content/location gate, so ordinary open-public capture with a visible device clears the criminal statute. However, a nominally public but physically secluded sub-space—such as a restroom stall, fitting room, single-occupant office, or physician’s exam room within a public building—could still carry a "genuine expectation of privacy" under Article II, § 10 sufficient to support a civil claim despite the device being open and the criminal statute’s hidden-device element never being triggered. Because this constitutional layer is untested and fact-specific, the safer default is to treat such secluded sub-spaces as requiring an affirmative spoken announcement of recording (or attorney override) before permitting capture.