Recording Law for Recording in Public in Montana

Montana lets you record conversations in public as long as your device isn’t hidden. The state’s wiretap law, Montana Code § 45-8-213, makes it unlawful to record or cause 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. If the device is openly worn or carried—like a body camera on your chest or a phone in your hand—this law does not apply at all. The rule turns on how the device is used, not where you are. For example, openly recording a dispute in a park, on a sidewalk, or inside a store is not restricted by this law. The key question is visibility: if the device is visible to everyone in the conversation, Montana’s recording law does not require anyone’s consent.

Even if you use a hidden device, Montana gives you an out. Under § 45-8-213(2)(a)(iii), recording becomes lawful if persons are given warning of the transcription or recording. If one person provides the warning, either party may record—meaning the recording is allowed even if others don’t agree. This rule applies whether the conversation is in person or over the phone. The warning must be given before or during the conversation; it can be spoken or otherwise made clear that recording is occurring.

Recording video without audio in public places is unrestricted under Montana law. The wiretap statute only criminalizes recording 'a conversation' using a hidden device; silent video—such as taking pictures or filming without capturing voices—is not 'a conversation' and falls outside this provision. A separate, narrower statute, § 45-5-223, restricts surreptitious visual recording only in two specific situations: secretly watching or recording an occupant of a private residence without their knowledge, and 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.

You have the right to record police officers performing their official duties in public in Montana. Federal courts covering Montana, including the Ninth Circuit, have ruled that the First Amendment protects recording police officers while they work in public. Montana’s wiretap law does not bar recording an on-duty officer in public because the officer is not engaged in a private 'conversation' being covertly captured, and a visibly worn device is not a 'hidden' device under the statute. This means you can openly record police interactions in parks, on streets, or in other public places without breaking Montana law. However, interfering with police duties or breaking other laws while recording can still lead to separate consequences.

Even in public, some spaces are treated as private for privacy purposes. Montana’s constitution protects a broad 'right of individual privacy' that shall not be infringed without a showing of a compelling state interest, and this has been 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 wiretap law itself does not restrict recording in these spaces if the device is openly worn, but a separate civil claim could arise under the constitutional privacy right in limited circumstances. For example, recording someone in a public restroom stall with an openly worn camera could lead to a legal dispute if the plaintiff demonstrates a genuine expectation of privacy in that setting, even if no criminal law was broken. Always consider the setting, not just the device’s visibility.

Imagine you’re at a park and see a heated argument between two people. You pull out your phone and start recording openly so others can see and hear what’s happening. Under Montana law, this is legal because your device is not hidden, and you’re in a public place. Even if one person in the argument objects, your recording is allowed. Now imagine the argument moves into a secluded area of the park, such as behind a tree or inside a pavilion alcove, where fewer people can observe or hear the exchange. If you follow with your phone and keep recording openly, the recording is still legal under the wiretap law—but if someone later claims your recording invaded their privacy because of the secluded setting and a genuine expectation of privacy, that’s a separate civil issue. The key is visibility and location: open recording in truly public areas is protected; secluded spots add legal risk even with an open device.

Montana’s wiretap law, § 45-8-213, is a criminal offense. Separately, § 45-5-223 criminalizes surreptitious visual observation or recordation of an occupant within or near a private residence without the occupant’s knowledge, with penalties escalating up to 5 years imprisonment and a $10,000 fine on a third-or-subsequent conviction. These provisions target covert surveillance rather than open recording of disputes, so they would primarily matter if the wearable-device use case involved covertly recording inside someone else’s home or recording intimate body parts in public without consent.