Montana is effectively a one-party consent state for recording conversations, but with a twist worth understanding before you hit record: Montana Code 45-8-213 starts from an all-party knowledge baseline and then carves out an exception for anyone “given warning” of the recording. In plain terms, you can record your own conversation without the other person’s agreement, but you have to tell them it’s happening. Silent recording with a hidden device is still a crime, even when you’re part of the conversation.
The Rule: Warning, Not Secrecy
Montana Code 45-8-213 creates the offense of “violating privacy in communications.” The recording provision makes it a crime to use a hidden electronic or mechanical device to capture a conversation without the knowledge of all parties. Two elements have to line up for the offense to apply: the device must be hidden, and every party must be unaware of the recording. Knock out either element and the conduct falls outside this prohibition.
The exception is the part that gives Montana its one-party consent reputation. The statute does not apply to “persons given warning of the transcription or recording,” and if one person provides the warning, either party may record. You don’t need the other person’s permission. You need their knowledge. A short statement at the start of the call or meeting does the job.
This is not the same as true one-party consent laws in other states, where a participant can record without saying anything to anyone. In Montana, quietly recording a conversation you’re part of, using a concealed device, still violates the statute. Think of the state’s system as “notice and record” rather than silent one-party consent.
A parallel exception applies to intercepting electronic communications under subsection (3), which uses the same “given warning” language.
What “Hidden Device” Means
The statute targets recording done with a “hidden” device. If your recorder is visible and unconcealed, the conduct may fall outside the prohibition regardless of whether you spoke a verbal warning. A phone held in plain view with the record button pressed sits in a different legal position than a concealed microphone.
Relying on visibility alone is risky, though. A court could weigh whether the other party actually noticed the device. The warning exception is a much cleaner shield. Saying “I’m recording this” takes two seconds and eliminates the issue.
Who Can Record Without Following the Normal Rules
Montana exempts several categories from the recording prohibition:
- Elected or appointed public officials and public employees acting in the performance of official duty. This covers law enforcement recording during investigations and other government functions, and it’s broader than formal wiretaps — administrative hearings and regulatory inspections can qualify.
- Anyone speaking at a public meeting. Those conversations can be recorded freely.
- Health care facilities and government health agencies recording emergency telephone communications made to them.
- Supervisory law enforcement officials who, under Montana Code 69-6-104, order telephone lines cut, rerouted, or diverted during a hostage situation when there is probable cause to believe a crime is being committed.
Penalties for Recording Without Warning
A recording violation under subsection (1)(c) is a misdemeanor. The penalty is a fine of up to $500, up to six months in county jail, or both. It is not a felony, contrary to some summaries you’ll see online.
The confusion tends to come from other parts of the same statute. Subsection 45-8-213 also criminalizes using electronic communications to threaten, harass, intimidate, or extort someone, and separately covers distributing intimate images without consent. The enhanced penalties that climb toward felony territory apply to the harassment and extortion provisions, not to the recording provision:
- A second conviction for harassment or extortion via electronic communications carries up to one year in county jail, a fine of up to $1,000, or both.
- A third or subsequent conviction for those same offenses carries up to five years in state prison, a fine of up to $10,000, or both.
Those escalating sentences reference subsections (1)(a) and (1)(b). The recording offense in (1)(c) does not trigger them.
Interstate Calls Are the Real Trap
Recording a call that crosses state lines is where Montana’s warning exception can quietly get you in trouble. About a dozen states require all parties to consent before a conversation can be recorded. If you’re in Montana and the other person is in California, Florida, or another all-party consent state, you may be complying with Montana law while breaking theirs.
Courts have reached different conclusions about which state’s law governs an interstate call. The California Supreme Court, in Kearney v. Salomon Smith Barney, Inc., applied California’s all-party consent rule to a call between someone in California and someone in a one-party consent state. The safe practice is to comply with whichever state has the stricter rule. When you’re not sure where the other person is sitting, ask, or get explicit consent from everyone on the line.
Federal law adds its own layer. The federal Wiretap Act, 18 U.S.C. § 2511, has a one-party consent rule, but it strips that protection when the recording is made “for the purpose of committing any criminal or tortious act.” Even a Montana-compliant recording can violate federal law if you made it intending to use the conversation for blackmail, fraud, or another unlawful purpose.
Recording at Work
Workplace policies complicate the picture in both directions. A blanket employer “no recording” rule can run into the National Labor Relations Act if it stops employees from documenting unsafe conditions, discrimination, or discussions about wages and working conditions. The National Labor Relations Board has treated recording in those contexts as protected concerted activity, and federal labor law can override state-level restrictions when the two conflict.
That protection is not a free pass. It applies when employees are acting together for mutual aid, such as preserving evidence of a safety complaint or retaliation. Recording a private chat with a coworker for personal reasons does not carry the same protection, and Montana’s warning requirement still applies to you as the person doing the recording.
If Someone Recorded You Illegally
Montana’s criminal statute gives prosecutors a tool if someone records you with a hidden device and no warning, but it does not explicitly create a private right of action for you to sue on your own. Your civil path runs through federal law. Under 18 U.S.C. § 2520, a person whose communications were unlawfully intercepted can sue for the greater of actual damages plus the violator’s profits, or statutory damages of $100 per day of violation or $10,000, whichever is higher.
If you’re weighing either a criminal complaint or a civil claim, talk to an attorney who works with both Montana’s statute and the federal Wiretap Act. The interaction between the two determines what you can actually recover.
The Short Version for Anyone About to Record
Tell the other person you’re recording. That single sentence is what the Montana statute requires, and it turns an otherwise-criminal act into legal conduct. Skip the warning and use a hidden device, and you’re exposed to misdemeanor charges even though you were part of the conversation. For calls that cross state lines, treat the stricter state’s law as the one that governs, because being wrong can mean facing a charge in a state you’ve never visited.