Recording Law for Phone & Video Calls in New Mexico

New Mexico’s wiretap law, NMSA 1978, Section 30-12-1, restricts interception of communications transmitted "by telegraph or telephone." The statute makes it a misdemeanor to intercept a message sent by telegraph or telephone without consent, but it includes an exception: interference is permitted "by a person acting 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 one-party consent exception applies to telephone and telegraph communications, including phone calls and video calls that transmit audio over telephone lines or similar electronic means.

New Mexico’s wiretap statute does not reach in-person conversations. 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’s prohibition applied only to communications transmitted "by telegraph or telephone," and that the statute did not criminalize the disclosure of a face-to-face conversation recorded through a device concealed on one of the participants. The court concluded that the statute’s reach is limited to telephone conversations or telegraph messages, and that in-person conversations are not covered by the law. Because the statute’s prohibitions are textually tied to telegraph or telephone infrastructure, in-person audio capture falls outside the statute’s scope entirely, regardless of whether a hidden device is used.

New Mexico’s wiretap law, NMSA 1978, Section 30-12-1, does not address video-only recording. The statute’s prohibited acts are expressly limited to communications transmitted "by telegraph or telephone" and to messages "intended for another 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. As a result, silent video-only recording of a real-world encounter is not addressed or restricted by this statute. A separate, unrelated exception exists under New Mexico’s 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, such as in a restroom or changing room. That provision is not implicated by recording disputes, interactions, or police encounters in public.

Recording on-duty police officers performing their official duties in public is protected by the First Amendment. 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 Tenth Circuit joined six sister circuits in recognizing this right. This federal constitutional protection operates alongside the absence of state wiretap-law exposure for in-person recording in New Mexico.

Even though New Mexico’s wiretap statute permits one-party consent for telephone and telegraph communications, lawyers in the state must comply with additional ethics rules. The State Bar of New Mexico’s Formal Opinion 2005-03 addresses whether a lawyer may secretly record a witness interview who had indicated the conversation was "off the record." The Committee concluded that legality under the recording-consent statute is necessary but not sufficient for the conduct to be ethical. The opinion states that a lawyer who knows a witness believes an interview is "off the record" violates Rule 16-804(C) by recording it without disclosure, and that Rule 16-804(A) bars using an agent to do the recording. The opinion emphasizes that the prudent New Mexico lawyer will be hesitant to record conversations without the other party’s knowledge, while acknowledging that the analysis remains fact-specific and does not impose an absolute per-se rule. The Committee reaffirmed its earlier opinions (1988-6 and 1996-2) and declined to withdraw them after the ABA withdrew its older per-se rule, making New Mexico’s approach closer to the old ABA Formal Opinion 337 than to ABA Formal Opinion 01-422.

Imagine you’re on a video call with a coworker to discuss a project. You want to record the call to keep notes, but your coworker does not know you are recording. Under New Mexico’s wiretap statute, this is legal because the law only restricts interception of communications transmitted by telegraph or telephone, and the one-party consent exception applies to such communications. You can record the call without telling your coworker first. However, if you were a lawyer on the call, you would need to disclose the recording to comply with the State Bar’s ethics rules, which impose additional disclosure obligations beyond the requirements of the wiretap statute.

New Mexico’s wiretap statute, NMSA 1978, Section 30-12-1, is limited to communications transmitted by telegraph or telephone and does not reach in-person conversations. The statute’s prohibitions include damaging communication infrastructure, tapping or connecting to telegraph or telephone lines without consent, intercepting messages intended for another by telegraph or telephone, obstructing delivery, and using apparatus to facilitate such acts. A related civil cause of action exists under NMSA 1978, Section 30-12-11, which provides a private right of action for violations with statutory damages, punitive damages, and attorney fees. Separate statutes, such as the voyeurism statute (NMSA 1978 Section 30-9-20), may impose restrictions in specific contexts, such as photographing or filming a person’s intimate areas without consent in places like restrooms or changing rooms, but these provisions are not implicated by recording disputes, interactions, or police encounters in public.

New Mexico has no dedicated biometric privacy statute and no comprehensive consumer data privacy law currently in effect. 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" 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." Because live voiceprints used to distinguish wearer from bystanders are not used to authenticate access to a location, device, system or account, they may not even fall within this definition. If they did, the only resulting obligations would be general "reasonable security procedures" for storage, "proper disposal" once no longer needed for business purposes, and breach notification to affected NM residents within 45 days if the voiceprint data is later compromised — nothing about obtaining consent before creating the voiceprint in the first place. Two comprehensive-privacy bills that would have added a genuine sensitive-data/biometric opt-in consent requirement — HB 307 (2025) and SB 53 (2026) — both died in committee and are not law. New Mexico residents currently have no statutory floor at all for pre-collection voiceprint consent.