Recording Law for Recording at Home in New Mexico

New Mexico’s criminal wiretap statute, NMSA 1978, Section 30-12-1, makes it a misdemeanor to intercept communications “by telegraph or telephone.” The law targets acts like tapping phone lines, intercepting messages sent by wire, or interfering with telegraph equipment. It does not mention in-person conversations at all. In State v. Hogervorst (1977-NMCA-057, 90 N.M. 580, 566 P.2d 828), the New Mexico Court of Appeals explained that the statute’s language is limited to communications sent over telegraph or telephone systems. Because of that, recording an in-person conversation at home or elsewhere is not covered by this law. The one-party consent exception in the statute applies only to communications intercepted 'under color of law in the investigation of a crime, where such person is a party to the communication, or one of the parties to the communication has given prior consent to such interception, monitoring or recording,' and it is expressly limited to communications transmitted 'by telegraph or telephone.'

If you record an in-person conversation inside your own home in New Mexico, the state’s wiretap law does not restrict you. The law only applies to phone calls and telegraph messages, so recording someone talking to you in person does not violate NMSA 30-12-1. The same rule applies whether the conversation happens in your living room, kitchen, or backyard. The statute does not create a special rule for private homes, and no New Mexico appellate court has held that recording in a home triggers the wiretap law. The Hogervorst decision makes clear that the law’s reach stops at telephone and telegraph communications. Any heightened restriction tied to a home (e.g., a bedroom, bathroom) would come from other statutes such as the voyeurism statute (NMSA 30-9-20) or general trespass/privacy tort law, not from the wiretap statute. For example, the voyeurism statute criminalizes photographing or filming a person’s intimate areas without consent where they have a reasonable expectation of privacy, but it does not address routine in-person conversations.

Recording video without audio in New Mexico is not addressed by the wiretap statute at all. Section 30-12-1 only covers intercepting messages sent by telegraph or telephone, so silent video recording of people in your home does not fall under this law. There is a separate voyeurism statute, NMSA 1978, Section 30-9-20, which bars secretly recording someone in a place where they have a reasonable expectation of privacy, such as a bathroom or changing room. That statute does not apply to recording conversations or interactions in common areas of a home. The wiretap statute’s prohibited acts—tapping or connecting to a telegraph or telephone line without consent, intercepting a message intended for another by telegraph or telephone, or obstructing delivery of such messages—are expressly limited to communications transmitted 'by telegraph or telephone,' leaving video-only capture entirely outside its scope.

If someone records you without your consent during an in-person conversation at home, New Mexico’s wiretap law does not give you a claim under NMSA 30-12-1. However, you may have other legal options depending on the facts. For example, if the recording happened in a private space like a bedroom where the person had a reasonable expectation of privacy, the voyeurism statute could apply. You could also consider privacy tort claims like intrusion upon seclusion, though these are separate from the wiretap statute. The wiretap law itself does not create a private right of action for in-person recordings. The statute’s subsections (A) through (E) explicitly prohibit damaging telegraph/telephone equipment, tapping telegraph/telephone lines, intercepting telegraph/telephone messages, obstructing telegraph/telephone delivery, or using apparatus to facilitate such acts—none of which reach in-person conversations.

Recording on-duty police officers performing their official duties in public is protected by the First Amendment, according to the U.S. Court of Appeals for the Tenth Circuit in Irizarry v. Yehia (38 F.4th 1282, 10th Cir. 2022). Because New Mexico is in the Tenth Circuit, this federal protection applies statewide. The court held that the right to record police in public is clearly established, so officers cannot use qualified immunity to avoid liability when they interfere with such recordings. This protection exists alongside the fact that New Mexico’s wiretap law does not cover in-person conversations at all. The Tenth Circuit’s decision in Irizarry joins six sister circuits recognizing the same First Amendment right, reinforcing the strength of this protection in New Mexico.

Imagine you are having a heated discussion with a family member in your living room. You decide to turn on your phone’s voice recorder to capture what is said. Under New Mexico law, this recording is not restricted by the wiretap statute because it is an in-person conversation, not a phone call. The same would be true if you recorded a conversation between your family member and a guest in your home. The law does not require anyone’s consent for in-person recordings, and it does not matter whether the conversation happens in a public or private part of the house. The statute’s one-party consent exception applies only to communications transmitted 'by telegraph or telephone,' so it does not govern in-person conversations.

New Mexico’s wiretap statute allows interception of a communication 'under color of law in the investigation of a crime, where such person is a party to the communication, or one of the parties to the communication has given prior consent to such interception, monitoring or recording.' This exception applies only to communications transmitted 'by telegraph or telephone,' not to in-person conversations. For example, if a law enforcement officer who is a party to a conversation records it during a criminal investigation, that recording is exempt from the misdemeanor offense. Similarly, if any one party to a telephone call has given prior consent to the interception, monitoring, or recording, the act is lawful under the statute. The statute’s prohibited acts are expressly limited to communications transmitted 'by telegraph or telephone,' so the one-party consent exception operates within that narrower scope for covered communications. Violations of Section 30-12-1 are punishable as misdemeanors, with penalties up to 364 days in jail and a fine of up to $1,000 under NMSA 31-19-1.

Even though New Mexico’s wiretap statute does not reach in-person conversations, it does create a civil cause of action for violations involving covered communications. Under NMSA 1978, Section 30-12-11, a person whose communications are unlawfully intercepted, disclosed, or used in violation of Section 30-12-1 may bring a civil action for damages. The statute provides for statutory damages of $100 per day or $1,000 minimum, whichever is greater, as well as punitive damages and reasonable attorney fees. This civil remedy applies to interceptions of telephone and telegraph communications, but not to in-person conversations. The statute’s civil provision reinforces the legislature’s intent to regulate only wire and electronic communications under Section 30-12-1.

Wearable devices and body cameras that capture in-person conversations in New Mexico are not restricted by the wiretap statute, because Section 30-12-1 applies only to communications transmitted 'by telegraph or telephone.' This means audio captured during police encounters, family disputes, or public interactions using a wearable device falls outside the statute’s scope. The Hogervorst decision confirms that the statute’s reach is limited to telephone and telegraph communications, so in-person audio capture is not criminalized. However, federal constitutional protections and other state laws—such as the voyeurism statute or privacy torts—may still apply depending on the circumstances. For example, recording in a private area where someone has a reasonable expectation of privacy could implicate other legal frameworks, even though the wiretap statute does not.