Montana Recording Law Reaches Only Hidden Devices, Not an Openly Held Phone

Montana's wiretap-style provision is called "Privacy in communications" and sits at 45-8-213, MCA, in the offenses-against-public-order chapter rather than in a dedicated eavesdropping act. Subsection (1)(c) is the part that reaches audio recording, and it has three elements that all have to be present: the person must record or cause to be recorded a conversation, the recording must be made "by use of a hidden electronic or mechanical device that reproduces a human conversation," and it must be done without the knowledge of all parties to the conversation. Montana is often described as an all-party-consent state on the strength of that last clause, but the description is incomplete because the concealment element is doing just as much work. A phone held up in view of the officer is not a hidden device, and the statute has no companion provision reaching open recording.

The exceptions in subsection (2)(a) narrow the offense further. Subsection (2)(a)(i) removes elected or appointed public officials and public employees when the transcription or recording is done in the performance of official duty, which is the provision that lets an officer run a body camera or a dash camera. Subsection (2)(a)(ii) removes persons speaking at public meetings. Subsection (2)(a)(iii) removes persons given warning of the transcription or recording and then adds a sentence that resolves the mutual-consent problem in a way few states spell out: "If one person provides the warning, either party may record." Announcing that you are recording therefore puts both you and the officer inside the exception. Subsection (2)(a)(iv) covers health care emergency telephone communications received by a health care facility as defined in 50-5-101, MCA, or by a government health care agency.

Video without sound sits outside 45-8-213(1)(c) altogether, because the device the subsection describes is one "that reproduces a human conversation." A separate subsection, 45-8-213(3), makes it an offense to purposely intercept an electronic communication, with the same carve-outs for public officials and employees acting in official duty and for persons given warning. Interception of a transmission is a different act from recording a face-to-face exchange, and neither subsection creates a bar on standing on a sidewalk and filming an arrest.

What Montana does not have is an affirmative right-to-record section. There is no counterpart to a standalone statute protecting the act of recording law enforcement activity, and no statutory buffer-zone offense setting a distance in feet after a warning. The nearest general protection is constitutional: Article II, Section 7 of the Montana Constitution provides that "No law shall be passed impairing the freedom of speech or expression" and that every person shall be free to speak or publish whatever they will on any subject, being responsible for all abuse of that liberty.

The boundary that does apply in practice is the obstruction offense. Section 45-7-302(1), MCA, makes it an offense to knowingly obstruct, impair or hinder the enforcement of the criminal law, the preservation of the peace, or the performance of a governmental function. Section 45-7-302(2) removes the argument that the officer's own conduct excuses interference: it is no defense that the peace officer was acting in an illegal manner, provided the officer was acting under the officer's official authority. Recording from a distance without physically interposing yourself is not obstruction on the face of that text, but closing on an arrest, refusing a lawful order to move, or reaching into a scene is where the exposure lies.

Montana law was last amended on this subject by Chapter 686, Laws of 2025, which rewrote 45-8-213 to add the digitally fabricated intimate-image offenses in subsections (1)(d) and (1)(e) and the definitions in subsection (6). That amendment left the concealed-device recording rule in (1)(c) and its exceptions in (2)(a) untouched.

A conviction for violating privacy in communications carries, under 45-8-213(4)(a), a fine not to exceed $500 or imprisonment in county jail for a term not to exceed 6 months, or both. The escalating penalties in 45-8-213(4)(b) and (4)(c), which reach 1 year and then 5 years in state prison, apply only to repeat convictions under subsections (1)(a) and (1)(b), the harassing-communication offenses, and not to the (1)(c) recording offense, so a concealed-recording charge stays at the misdemeanor level however often it is repeated. Obstructing a peace officer under 45-7-302 carries a fine not to exceed $500 or up to 6 months in county jail, or both.

Both are charged in justice, city or municipal court, and the recording itself is ordinarily the evidence in the case, so preserving the file matters. There is no Montana statute that authorizes an officer to order deletion of a recording or to seize a phone without a warrant, and Article II, Section 11 of the Montana Constitution, as amended by Constitutional Amendment No. 48 approved November 8, 2022, expressly secures the people in their "electronic data and communications" against unreasonable searches and seizures.