Recording Law for Video-Only Recording in New Mexico

New Mexico’s main law on recording conversations, found in NMSA 1978, Section 30-12-1, is written to apply only to messages sent by telegraph or telephone. The law makes it a misdemeanor to intercept, tap, or copy a message intended for another person when it travels over a telegraph or telephone line. The statute also bars tampering with the equipment used to send those messages. Because the law’s language is limited to telegraph and telephone communications, it does not reach in-person conversations or video-only recording of those conversations. In State v. Hogervorst (1977-NMCA-057, 90 N.M. 580, 566 P.2d 828), the New Mexico Court of Appeals said the statute’s protections do not reach a face-to-face conversation recorded by a hidden device, because the law is tied to telegraph and telephone systems.

Because New Mexico’s wiretap statute does not reach in-person conversations, silently recording video or taking photos without audio is not restricted by that law. The statute’s one-party consent exception, which allows a participant to record a telephone call without telling the other side, operates within the statute’s telephone or telegraph framework; it does not apply to in-person conversations, which fall outside the statute entirely. When you record only video or photos in person, you are not intercepting a telegraph or telephone message, so the statute does not apply. The same rule holds whether the recording happens in a public place or a private home. The only exception is the state’s voyeurism law, which bars secretly recording someone in a place where they have a reasonable expectation of privacy, such as a bathroom or changing room.

The U.S. Court of Appeals for the Tenth Circuit, which covers New Mexico, has ruled that there is a clearly established First Amendment right to record on-duty police officers performing their official duties in public. In Irizarry v. Yehia (38 F.4th 1282, 10th Cir. 2022), the court held that an officer was not entitled to qualified immunity because the right to record police in public was already clearly established. This federal protection is a distinct constitutional right separate from the state’s wiretap law, which does not apply to in-person video-only recording.

If you intercept a telephone or telegraph message without consent in New Mexico, you could face a misdemeanor charge under NMSA 1978, Section 30-12-1. The law classifies the offense as a misdemeanor under NMSA 1978, Section 31-19-1. Separately, if you violate someone’s privacy in other ways—such as secretly recording in a private place where they have a reasonable expectation of privacy—you could face civil liability under NMSA 1978, Section 30-12-11. That law lets the person you recorded sue for statutory damages of $100 per day or a $1,000 minimum, plus punitive damages and attorney fees.

Imagine you attend a city council meeting in Albuquerque and set up a small camera on a tripod to silently record the proceedings. You do not capture any audio. Under New Mexico’s wiretap law, this video-only recording is not restricted, because the law only covers telephone or telegraph messages. If someone objects, you can explain that the state’s wiretap statute does not reach in-person video recording. If the meeting involves on-duty police officers performing their official duties, you are also protected by the First Amendment right to record, as recognized by the Tenth Circuit. Just be careful not to record in areas where people have a reasonable expectation of privacy, such as restrooms.

New Mexico does not have a dedicated biometric privacy law like Illinois’ BIPA. The state’s Data Breach Notification Act includes “biometric data” as a type of personal information that must be protected and reported if breached, but it does not require consent before capturing a voiceprint or other biometric identifier for purposes such as distinguishing a wearer from bystanders. The law only requires reasonable security for stored data and proper disposal once it is no longer needed. Bills that would have added an opt-in consent requirement for biometric data died in committee and are not law. So, capturing a voiceprint under these circumstances does not require prior consent under New Mexico law.