Recording Law for Voiceprints & Biometric Data in New Mexico

New Mexico has no statute that requires consent before capturing or storing a biometric voiceprint. The only biometric-related rule is the New Mexico Data Breach Notification Act, NMSA 1978 §§ 57-12C-1 to -12, which includes “biometric data” as a category of “personal identifying information” for breach-notification purposes only. The Act does not regulate the collection or creation of biometric data; it imposes obligations only after a breach occurs. The Act defines “biometric data” narrowly as “a record generated by automatic measurements of an identified individual’s fingerprints, voice print, iris or retina patterns, facial characteristics or hand geometry that is used to uniquely and durably authenticate an individual’s identity when the individual accesses a physical location, device, system or account,” NMSA 1978 § 57-12C-2(A). Because a live voiceprint used to distinguish a wearer from bystanders during a meeting does not authenticate access to a location, device, system, or account, it may not even fall within the Act’s definition. No New Mexico statute or reported decision imposes any consent requirement before creating or storing a biometric voiceprint.

New Mexico’s criminal wiretap statute, NMSA 1978 § 30-12-1, prohibits five categories of conduct: (A) intentionally damaging, removing, or destroying any “telegraph, telephone, or related transmission equipment” without consent; (B) intentionally tapping or connecting to a “telegraph or telephone line, wire, cable or instrument” without consent; (C) intentionally intercepting, reading, interrupting, taking, or copying any “message, communication or report intended for another by telegraph or telephone”; (D) intentionally obstructing, delaying, or interfering with the delivery of a message over a telegraph or telephone system; and (E) intentionally using, installing, or conspiring to use any apparatus to accomplish, or to facilitate, any of the foregoing. The statute applies only to communications transmitted by telegraph or telephone; it does not mention in-person conversations or oral communications. A violation is a misdemeanor.

In State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, the New Mexico Court of Appeals held that the predecessor statute §40A-12-1(C) “pertains to telephone conversations or telegraph messages,” and concluded that disclosing the contents of a face-to-face conversation recorded through a device concealed on one of the participants is not the type of activity the statute criminalizes. The court reasoned that every prohibited act in the statute is textually tied to telegraph or telephone infrastructure, so the statute does not reach in-person conversations recorded by a body-worn device. Because the current statute, NMSA 1978 § 30-12-1, carries forward the same telegraph/telephone limitation, Hogervorst’s holding remains controlling: in-person audio capture does not violate New Mexico’s wiretap law, regardless of where the conversation occurs or whether anyone consents.

The State Bar of New Mexico Ethics Advisory Committee has expressly declined to follow the ABA’s more permissive approach to secret recording. In Formal Opinion 2005-03 (Nov. 19, 2005), reaffirming Formal Opinions 1988-6 and 1996-2 and interpreting Rule 16-804(A) and 16-804(C) NMRA, the Committee held that a lawyer who secretly records a witness who has indicated the conversation is “off the record” violates the ethics rules by recording it without disclosure. The opinion explains that Rule 16-804(C) bars “conduct involving dishonesty, fraud, deceit or misrepresentation,” and that this includes both acts of commission and omission; thus, a lawyer must tell the witness before initiating a recorded interview that the interview will be recorded. Rule 16-804(A) further bars using an agent to do the recording in the lawyer’s stead. The Committee stopped short of an absolute per-se ban, stating that the analysis remains “a very fact specific one,” but made clear that legality under the wiretap statute is necessary but not sufficient for the conduct to be ethical.

If biometric voiceprint data is compromised, the New Mexico Data Breach Notification Act, NMSA 1978 § 57-12C-6, requires the data holder to notify affected New Mexico residents “in the most expedient time possible and without unreasonable delay,” but in no event later than 45 days after discovery of the breach. The Act requires the holder to implement and maintain “reasonable security procedures and practices” appropriate to the nature of the personal identifying information, NMSA 1978 § 57-12C-4, and to “properly dispose” of the data once no longer needed for business purposes, NMSA 1978 § 57-12C-3. Enforcement is by the Attorney General only; the Act does not create a private right of action. A knowing or reckless violation may result in a civil penalty up to $25,000, or up to $10 per instance of failed notification (capped at $150,000), NMSA 1978 § 57-12C-11.

A company installs a voice-ID system that captures a short voiceprint sample from each employee at the start of meetings to distinguish wearers from bystanders. Under New Mexico’s wiretap statute, NMSA 1978 § 30-12-1, the system’s in-person audio capture does not violate state law because the statute applies only to telegraph and telephone communications. The New Mexico Data Breach Notification Act, NMSA 1978 §§ 57-12C-1 to -12, does not require consent to create or store the voiceprint sample; it imposes security, disposal, and breach-notification duties only after a breach occurs. If the voiceprint data were later compromised, the company would have to notify affected New Mexico residents within 45 days under NMSA 1978 § 57-12C-6. A lawyer advising the company would still recommend clear disclosure to participants, especially if the lawyer’s own ethics rules apply.

Federal constitutional law provides strong protection for recording on-duty police officers performing their official duties in public. In Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022) (No. 21-1247, decided July 11, 2022), the U.S. Court of Appeals for the Tenth Circuit held that there is a clearly established First Amendment right to record police officers performing their official duties in public, and that the individual officer defendant was not entitled to qualified immunity because that right was already clearly established. The court cited six sister circuits’ prior recognition of the right. This federal protection exists alongside New Mexico’s wiretap statute, which does not reach in-person audio capture at all.

New Mexico’s wiretap statute, NMSA 1978 § 30-12-1, prohibits intercepting communications “by telegraph or telephone” and does not mention images or video. In State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, the New Mexico Court of Appeals held that the statute’s reach is limited to telegraph and telephone communications, so silent video-only recording of a real-world encounter is not addressed or restricted by the statute. A narrow, unrelated exception exists under the state’s voyeurism statute, NMSA 1978 § 30-9-20, which criminalizes photographing or filming a person’s intimate areas without consent where they have a reasonable expectation of privacy, but that provision is not implicated by recording disputes, interactions, or police encounters in public.