Recording Law for Employers & Businesses in New Mexico

New Mexico’s wiretap statute, NMSA 1978 § 30-12-1, applies only to communications sent by "telegraph or telephone." The law makes it a misdemeanor to damage communication infrastructure, tap or connect to a telegraph or telephone line without consent, intercept a message intended for another by telegraph or telephone, obstruct delivery of such a message, or use apparatus to facilitate any of these acts. In State v. Hogervorst, 1977-NMCA-057, 90 N.M. 580, 566 P.2d 828, the New Mexico Court of Appeals confirmed the statute does not reach face-to-face conversations at all. Because the statute’s prohibited acts are expressly limited to communications transmitted "by telegraph or telephone," New Mexico’s wiretap law does not restrict recording in-person interactions. This means in-person audio capture falls entirely outside the statute’s scope.

For telephone or internet voice calls, New Mexico is a one-party consent state. The law allows interception, monitoring, or recording if at least one person taking part in the call agrees. The statute permits such acts when "one of the parties to the communication has given prior consent to such interception, monitoring or recording." This means an employer can record a customer service call if the employee on the call consents, even if the customer does not. The same rule applies to calls made using devices with call features.

New Mexico has no statutory law-enforcement-specific exception needed for citizens recording on-duty police in public, because the state’s wiretap statute does not reach in-person audio/video capture at all. Separately, and more directly on point for the police-encounter use case, the U.S. Court of Appeals for the Tenth Circuit held in Irizarry v. Yehia, 38 F.4th 1282 (10th Cir. 2022) 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. This gives strong federal constitutional protection, on top of the absence of state wiretap-law exposure, for recording on-duty police in New Mexico.

New Mexico’s wiretap statute does not restrict video-only recording. The statute’s prohibited acts are expressly limited to communications transmitted "by telegraph or telephone." It contains no reference to oral communications, images, or video, and under Hogervorst does not reach in-person interactions at all — so silent video-only recording of a real-world encounter is not addressed or restricted by this statute. The only exception is the narrow voyeurism statute, NMSA 1978 Section 30-9-20, which criminalizes photographing or filming a person’s intimate areas without consent where they have a reasonable expectation of privacy — for example, in a restroom or changing room — but that is not implicated by recording disputes, interactions, or police encounters.

New Mexico has no dedicated biometric privacy statute like Illinois’ BIPA. The only biometric-adjacent statute is the New Mexico Data Breach Notification Act, NMSA 1978 §§ 57-12C-1 to -12, which includes "biometric data" as one category of "personal identifying information" for breach-notification purposes only — it does not regulate collection or consent. The act defines biometric data 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." Because live voiceprints used to distinguish wearer from bystanders may not fall within this definition, New Mexico imposes no consent, notice, or written retention/destruction-policy requirement before capturing a voiceprint. Employers using devices with voiceprint features are not required to obtain consent under state law.

Imagine a retail store in Albuquerque where employees wear smartglasses with built-in cameras and microphones. The store’s policy allows recording customer interactions for training and quality control. Because New Mexico’s wiretap law only governs telephone/telegraph communications and does not reach in-person conversations, the store can record in-person interactions without violating the wiretap statute. For telephone calls made through the glasses, the employee’s consent is enough under the one-party consent rule. The store should still train staff not to record in restrooms or other private areas where people have a reasonable expectation of privacy, to avoid potential liability under the voyeurism statute.

New Mexico’s legal ethics rules impose additional constraints beyond the wiretap statute. The State Bar of New Mexico Ethics Advisory Committee has held in Formal Opinion 2005-03 that a lawyer may not secretly record a witness interview who has indicated the conversation is 'off the record,' even though such recording is lawful under the state’s one-party-consent wiretap statute. The Committee reasoned that Rule 16-804(C) bars conduct involving dishonesty, fraud, deceit, or misrepresentation, and that a lawyer who records without disclosure violates the rule by implying the interview is not being recorded. Rule 16-804(A) further bars using an agent to do the recording in the lawyer’s stead. The opinion stops short of an absolute per-se rule, noting the analysis remains fact-specific and turning on factors like whether the recording would make the lawyer a witness or whether the lawyer made false statements to induce the conversation. This means lawyers in New Mexico must obtain consent before recording conversations, even when the wiretap statute would permit it.