Recording Law for Family Law in Montana

Montana’s audio-recording statute, Mont. Code Ann. § 45-8-213, makes it unlawful to record a conversation using a hidden electronic or mechanical device without the knowledge of all parties. If the device is openly worn or used—such as a body camera clipped to your shirt, smart glasses, or a phone held in plain view—the recording is not restricted by this statute, regardless of location or subject matter. The law’s gate is procedural: it turns on whether the device is hidden from the parties, not on whether the conversation is private or where it occurs. Separately, § 45-8-213(3) criminalizes the real-time interception of electronic communications (traditional wiretapping of transmitted signals/data), which is a distinct sub-offense with its own exception structure. For in-person and telephone/electronic conversations, the statute applies a common framework focused on the use of a hidden device and the knowledge of the parties, with a parallel exception structure that includes a one-party-warning cure: under § 45-8-213(2)(a)(iii), if one person provides a clear warning that the conversation is being transcribed or recorded, either party may record, which satisfies the statute’s knowledge requirement.

Under § 45-8-213(1)(c), a device is considered "hidden" if its use is not obvious to the people in the conversation. A visibly worn body camera, smart glasses, or a phone held in plain view are not hidden devices, so recording with them is not restricted by the statute. The key question is whether the device’s operation would be reasonably apparent to the parties being recorded. If someone could see or hear the device operating, it is not hidden. The statute does not define "hidden" further, and no judicial gloss has been supplied. The law’s focus is on the manner of recording, not the content or location of the conversation.

Montana’s audio-recording statute targets the capture of "a conversation"—meaning audio of speech—using a hidden device. Silent video with no audio captured does not constitute "a conversation" and therefore falls outside the statute’s scope. For example, wearing a camera that only records video during a dispute or interaction is unrestricted under § 45-8-213. However, if the device captures both video and audio, the rules for audio recording still apply. The statute also does not restrict taking still photographs, even in private homes, as long as the device is not used to secretly record audio.

Recording inside a private residence is unrestricted in Montana if the device is openly used and its operation is visible or audible to the people present. For example, wearing a visible body camera during a dispute at your own home is not prohibited by § 45-5-223, which targets covert visual observation or recording of an occupant within or near a private residence without their knowledge. Montana has a separate, narrower statute—§ 45-5-223—that bans surreptitious visual observation or recording of an occupant within or near a private residence without their knowledge, but this provision targets covert surveillance, not openly worn devices. If you hide a camera to record someone in their home, that could violate § 45-5-223, but wearing a visible device is not restricted. The law focuses on the method of recording, not the location.

Imagine you’re picking up your child for a scheduled visit, and your ex starts arguing in the parking lot. You clip a small, visible camera to your shirt to document the exchange. Because the camera is open and not hidden, Montana law does not impose a consent requirement. Even if your ex objects or asks you to stop, you can continue recording as long as the device remains visible. If your ex later claims the recording was illegal, a court would look at whether the device was hidden or used secretly. In this scenario, the recording would likely be allowed. Montana’s First Amendment jurisprudence also protects the right to record police performing official duties in public, as recognized by the Ninth Circuit in Fordyce v. City of Seattle and Askins v. U.S. Dep’t of Homeland Security. This is a hypothetical example—your specific situation may have different facts.

Montana’s audio-recording statute is a criminal offense. If you secretly record a conversation using a hidden device without the knowledge of all parties, you could face misdemeanor charges. Separately, § 45-5-223 criminalizes surreptitious visual observation or recording of an occupant within or near a private residence, with penalties escalating up to 5 years imprisonment and a $10,000 fine on a third-or-subsequent conviction. There is no private right of action under either statute, so enforcement is handled by the state, not by private individuals. However, if someone brings a separate civil claim for invasion of privacy under Montana’s constitutional right of individual privacy (Article II, § 10), a court could consider the recording’s circumstances, including whether the device was hidden and whether the conversation occurred in a place where a reasonable expectation of privacy existed.

Montana has no statutory exception that bars citizens from recording police officers performing official duties in public. Because a citizen’s openly worn device is not a "hidden" device, § 45-8-213 does not bar recording an on-duty officer in public. Moreover, the Ninth Circuit—whose decisions bind Montana—has recognized a First Amendment right to record police performing official duties in public in Fordyce v. City of Seattle and Askins v. U.S. Dep’t of Homeland Security. This right applies regardless of whether the officer is aware of the recording.

Montana’s Constitution, Article II, § 10, guarantees a broad "right of individual privacy" that "shall not be infringed without the showing of a compelling state interest." While this provision has mainly been applied against government searches or monitoring, it has been cited as a potential basis for a private civil invasion-of-privacy claim against a private recorder in a place where the plaintiff had a genuine expectation of privacy. The statute’s hidden-device gate does not resolve this civil-law question; instead, it functions as a separate, fact-specific layer that could support liability in a narrow set of circumstances, such as recording in a physically secluded sub-space within a nominally public location (e.g., a restroom stall, a fitting room, or a single-occupant office with the door closed).

Montana’s Consumer Data Privacy Act (MCDPA), codified at Mont. Code Ann. §§ 30-14-2801 to -2820, imposes obligations on controllers that meet certain thresholds (≥25,000 Montana consumers, or ≥15,000 with >25% gross revenue from data sales). The MCDPA defines "biometric data" to include voiceprints and other unique biological patterns used to identify a specific individual, but it explicitly excludes raw audio or video recordings from the definition of biometric data unless the data is extracted for the purpose of identifying a specific individual. For example, a smartglasses device that captures raw audio/video during a conversation does not implicate the MCDPA’s biometric-data provisions by itself. The statute only applies if the controller processes the audio/video to derive a voiceprint or other biometric identifier for speaker identification or matching. The MCDPA also requires controllers to obtain a consumer’s consent before processing "sensitive data," which includes biometric data processed for the purpose of uniquely identifying an individual, subject to the COPPA carve-out for known children. Enforcement is handled exclusively by the Attorney General, with civil penalties up to $7,500 per violation. There is no private right of action under the MCDPA.

Montana’s statute includes several explicit exceptions to the hidden-device consent rule. Under § 45-8-213(2)(a), the prohibition does not apply to: (i) a public official or employee acting in the course of official duty; (ii) a speaker at a public meeting who makes no reasonable effort to restrict the conversation to private; or (iii) persons given warning of the transcription or recording, where one person’s warning suffices for all parties to record. Separately, § 45-8-213(2)(b) exempts recordings made during a health emergency call if the call is recorded for the purpose of obtaining medical assistance. These exceptions apply only to the hidden-device consent rule in § 45-8-213(1)(c) and do not extend to the separate interception offense in § 45-8-213(3), which lacks a public-meeting exception. The public-official-duty exception does not immunize citizens recording officers; it simply removes the hidden-device consent bar when the officer is the one recording in their official capacity.

Montana’s § 45-5-223 creates a separate, stricter offense for surreptitious visual observation or recordation 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. This provision is aimed at voyeuristic or covert surveillance of a residence rather than open recording of a dispute. Penalties escalate with repeat convictions up to 5 years imprisonment and a $10,000 fine on a third-or-subsequent conviction. The statute does not apply to openly worn devices capturing an incident that happens to occur inside a residence with the occupant’s awareness, even if the occupant objects to the recording.