Recording Law for Police & Civil Rights in Montana

Montana has no law barring citizens from openly recording on-duty police officers during public encounters. The key statute, Montana Code § 45-8-213, only restricts secretly recording a conversation with a hidden device. If your phone, body camera, or smartglasses are visibly worn or held, you are not using a "hidden electronic or mechanical device," so the law does not apply. This means you can record traffic stops, arrests, or other public interactions without asking permission. Courts in the Ninth Circuit, which includes Montana, have also recognized a First Amendment right to record police performing official duties in public (Fordyce v. City of Seattle, 55 F.3d 436; Askins v. U.S. Dep't of Homeland Security, 899 F.3d 1035).

If you must record with a hidden device, Montana’s law requires that all parties know about the recording. However, a single warning satisfies the knowledge requirement for the warned party: if one person announces the recording, that party is deemed to have knowledge, and the recording becomes lawful for that person under § 45-8-213(2)(a)(iii). The statute does not automatically impute knowledge to every other party, so others’ lack of knowledge could still create risk if they are recorded without their awareness. Announcing the recording is the safest practice when using a hidden device.

A device is "hidden" under Montana law if it is concealed from the parties being recorded so that they would not reasonably expect it to be capturing the conversation. For example, a smartphone in your hand or a body camera clipped to your shirt is not hidden. A device concealed under clothing, in a bag, or disguised as something else would qualify as hidden. The law does not define "hidden" further, so courts look at whether the recording method would reasonably be noticed by someone in the conversation. If you are unsure, announce the recording to avoid any risk.

Montana has a separate law, § 45-5-223, that bans secretly watching or recording someone inside or near a private residence without their knowledge. This law targets covert surveillance, not open recording. If you are openly wearing a device and an incident happens to occur inside a home with the occupant’s awareness, the law does not bar your recording. However, Montana’s Constitution, Article II, § 10, guarantees a broad right of individual privacy that could support a private civil invasion-of-privacy claim in places where a plaintiff had a genuine expectation of privacy, regardless of whether the device is visible. This area is less clear, so when in doubt, announce the recording.

Imagine you are pulled over by a police officer. You wear smartglasses that record video and audio openly, with a small indicator light visible on the frame. The officer does not object. Under Montana law, this recording is legal because the device is not hidden, and the encounter is in public. Even if the officer later claims they did not know they were being recorded, the law does not require their consent as long as the device is visible. If you had instead tucked the glasses into your pocket and used them secretly, you would need to announce the recording to make it lawful for you under the statute.

Recording with a hidden device without the required knowledge or warning is a crime in Montana. Under § 45-8-213, the offense applies when a hidden device is used to record a conversation without the knowledge of all parties, and penalties escalate with repeat convictions. Under § 45-5-223, penalties can reach up to five years imprisonment and a $10,000 fine on a third-or-subsequent conviction for surreptitious visual observation or recordation of a residence. These penalties apply to violations of the hidden-device consent rule and the separate visual-recording statute, with escalation for repeat offenses. Open recording carries no legal risk under these statutes.

Montana’s Consumer Data Privacy Act (MCDPA) imposes additional obligations when processing biometric data, but only for businesses meeting certain thresholds (≥25,000 Montana consumers, or ≥15,000 with >25% gross revenue from data sales). The MCDPA defines "biometric data" to include voiceprints, but expressly excludes raw audio or video recordings unless the data is extracted to identify a specific individual. If your smartglasses merely capture and store audio or video without deriving or retaining biometric identifiers, the MCDPA generally does not apply. If you process extracted biometric data (for example, to create a voiceprint for identification), you must obtain the consumer’s consent before processing that sensitive data. Enforcement is handled exclusively by the Montana Attorney General, with civil penalties up to $7,500 per violation. The statute contains an unresolved cross-reference between the penalty and enforcement sections regarding any cure period, so the precise scope of any cure mechanism remains unclear under the current codified text.