Montana Recording Laws (2026): Announcement Exception, Penalties, and AI Deepfakes
Montana's Announcement Exception: The Third Path
Montana recording law does not fit neatly into the one-party or two-party consent categories used for most states. It occupies a distinct third position.
Under MCA 45-8-213(1)(c), recording a conversation with a hidden electronic or mechanical device without the knowledge of all parties is a criminal offense. The prohibition is triggered by two elements: a hidden device and the absence of all-party knowledge. Remove either element and the statute does not apply.
That is where the announcement exception comes in. MCA 45-8-213(2)(c) provides that the prohibition does not apply to persons who have been warned that a conversation is being recorded. Either party to the conversation may give that warning. Once the warning is given audibly, either party may then record. No response, agreement, or acknowledgment is needed from the other side. The other party's only recourse is to end the conversation.
This makes Montana meaningfully different from both pure one-party and pure all-party consent states:
- In a one-party consent state (for example, Texas or New York), the recording party simply records without saying anything, because their own presence in the conversation counts as consent.
- In a strict all-party consent state (for example, California or Florida), the recording party must obtain active consent from every participant before recording.
- In Montana, the recording party announces that recording is occurring. No consent is solicited or required. The announcement itself, made audibly before or at the start of recording, satisfies the law.
Phone call example. A Montana resident starts a call and says: "I'm recording this call." That single sentence satisfies MCA 45-8-213(2)(c). Recording may continue regardless of how the other party responds.
In-person example. Before a workplace meeting, an employee says: "I want to let everyone know I'm recording this conversation." The announcement is made. Recording is lawful under state law from that moment forward.
Business example. An automated system plays: "This call may be recorded for quality assurance purposes." That message constitutes the announcement required by Montana law. No live agent announcement is needed.
No other state has this exact mechanism: an audible announcement by any party, with no consent required from the remaining parties.
MCA 45-8-213: Privacy in Communications -- Full Statute Breakdown
MCA 45-8-213 is Montana's privacy in communications statute. It was most recently amended by Chapter 686, Laws of 2025 (69th Legislature). Here is a plain-English walkthrough of each operative subsection.
Subsection (1): The Prohibited Acts
Subsection (1) defines the offenses. A person commits the offense of violating privacy in communications if they knowingly or purposely:
(1)(a) Use electronic communications to threaten, harass, intimidate, or injure another person, or disturb their peace and privacy.
(1)(b) Use electronic communications for extortion, to repeatedly disturb a person's peace, or to communicate obscene language with intent to offend.
(1)(c) Record or cause to be recorded a conversation by use of a hidden electronic or mechanical device without the knowledge of all parties to the conversation. This is the core recording-consent provision.
(1)(d) (Added by Ch. 686, L. 2025.) Publish, distribute, or disclose real or digitally fabricated intimate images of an identifiable person without consent and with purpose to terrify, intimidate, threaten, harass, injure, or obtain money.
(1)(e) (Added by Ch. 686, L. 2025.) Possess and threaten to disclose real or digitally fabricated intimate images with purpose to obtain money or other valuable consideration.
Subsection (2): The Exceptions
Subsection (2) provides four exceptions to the subsection (1) prohibitions:
(2)(a) Recording or intercepting by or with the consent of a public official or public employee acting in an official capacity. This is the basis for the right to record police officers without warning.
(2)(b) Recording of persons speaking at public meetings. Attendance at or speaking during an open public meeting removes the protection of subsection (1)(c) for that communication.
(2)(c) Recording of persons who have been warned that the conversation is being recorded. Under this exception, either party may give the warning, and either party may then record. This is the announcement exception.
(2)(d) Recording of health care emergency telephone communications by health care facilities or government health agencies. This narrow exception applies only to emergency calls, not routine telehealth appointments.
Subsection (3): Electronic Interception
Subsection (3) separately prohibits purposely intercepting an electronic communication without authorization. The subsection (2) exceptions apply here as well, so public officials may intercept within their official capacity, and parties who have been warned of recording or interception are excluded from protection.
Subsection (4): Penalties
See the dedicated penalty section below.
The Hidden Device Element
The prohibition in (1)(c) targets hidden devices. The statute does not prohibit recording with a visible, obvious device when all parties can see it. A phone held openly in front of someone during a conversation may not satisfy the "hidden" element, though giving an announcement is always the safer practice because it removes all ambiguity about the device's visibility.
Penalties Under MCA 45-8-213(4)
Verified as of 2026-05-09 by direct review of MCA 45-8-213(4) at mca.legmt.gov.
The penalty structure in subsection (4) has four provisions. Importantly, each provision targets specific subsection offenses. The escalation tiers for repeat offenses apply only to (1)(a)/(1)(b) harassment and (1)(d)/(1)(e) intimate image offenses, not to (1)(c) recording violations specifically.
| Subsection | Offense | Penalty |
|---|---|---|
| (1)(c): Recording violation, any offense | Misdemeanor | Up to 6 months county jail and/or up to $500 fine |
| (1)(a)/(1)(b): Harassment/extortion, first offense | Misdemeanor | Up to 6 months county jail and/or up to $500 fine |
| (1)(a)/(1)(b): Harassment/extortion, second conviction | Misdemeanor (enhanced) | Up to 1 year county jail and/or up to $1,000 fine |
| (1)(a)/(1)(b): Harassment/extortion, third or subsequent conviction | Felony | Up to 5 years state prison and/or up to $10,000 fine |
| (1)(d)/(1)(e): Intimate images, first offense | Misdemeanor | Up to 6 months county jail and/or up to $500 fine |
| (1)(d)/(1)(e): Intimate images, second or subsequent conviction | Felony | Up to 5 years state prison and/or up to $25,000 fine |
Note on (1)(c) recording offenses. The current statute does not contain an explicit felony escalation tier for repeat (1)(c) recording violations. Subsection (4)(a) states that a person convicted of the offense shall be fined up to $500 or imprisoned in the county jail for up to 6 months, or both. Subsections (4)(b) through (4)(d) specify enhanced penalties only for (1)(a), (1)(b), (1)(d), and (1)(e) convictions. This means a first, second, and subsequent recording conviction under (1)(c) all carry the same misdemeanor baseline under the current text of the statute. Consult a Montana attorney if you are facing a specific charge, as general felony sentencing statutes may interact with repeat offenses in ways the recording statute does not address.
Civil Remedies
MCA 45-8-213 does not provide a specific private cause of action. Persons harmed by illegal recording may pursue claims under common-law invasion of privacy, the constitutional privacy right under Article II, Section 10 of the Montana Constitution, or intentional infliction of emotional distress.
Admissibility
Recordings obtained in violation of the statute are generally inadmissible as evidence in Montana proceedings. This exclusionary consequence applies in addition to any criminal penalty.
2025 Amendment: AI Deepfakes and Intimate Images (Chapter 686)
Chapter 686, Laws of 2025 amended MCA 45-8-213 to add two new offense categories addressing AI-generated content. The amendment added the definition of "digitally fabricated" and the subsections (1)(d) and (1)(e) intimate image offenses described above.
The definition in the current statute reads: "digitally fabricated" means using technical means, such as artificial intelligence, to create media that realistically misrepresents an identifiable individual.
This definition brings AI-generated deepfake intimate images within the statute's criminal reach. A person who uses artificial intelligence to generate a realistic image depicting an identifiable person in a sexual context and then distributes it without consent can be charged under (1)(d). A person who generates or possesses such an image and threatens to release it in exchange for money can be charged under (1)(e).
What Chapter 686 did NOT change. The recording prohibition in subsection (1)(c) is unchanged. The announcement exception in subsection (2)(c) is unchanged. The public officials exception in subsection (2)(a) is unchanged. Every existing rule about when recording is permitted or prohibited under MCA 45-8-213 remains in effect exactly as it was before the 2025 amendment.
The 2025 amendment also added exceptions for the intimate image offenses: voluntary public exposure, disclosures in the public interest (including reporting unlawful conduct), law enforcement activities, legal proceedings, medical treatment, and historic, artistic, scientific, or educational materials. These exceptions are specific to the (1)(d) and (1)(e) offenses and do not affect the (1)(c) recording provisions.
SB 282 and the Data Broker Warrant Requirement
Montana Senate Bill 282, signed by Governor Gianforte on May 5, 2025, enacted as Chapter 382, Laws of 2025, takes effect October 1, 2025. The enrolled text prohibits government entities from purchasing electronic communications, contents of electronic communications, precise geolocation data, or other sensitive personal data without a search warrant or investigative subpoena issued by a court.
The law includes narrow exceptions: the data owner's consent, life-threatening emergencies, and communications involving incarcerated persons subject to certain conditions.
The Electronic Frontier Foundation characterized Montana as the first state to close the "data broker loophole" that previously allowed law enforcement agencies to purchase commercially available personal data and thereby circumvent Fourth Amendment warrant requirements, without first obtaining judicial authorization. That "first state" characterization is sourced to EFF analysis and is provided as context, not as a legal proposition.
SB 282 operates independently of MCA 45-8-213. The recording-consent rules for private parties are not affected by SB 282. The new law specifically constrains government purchasing of data, not private recording of conversations. For anyone concerned about government surveillance of their communications, SB 282 provides an additional layer of protection beyond the existing warrant requirements for wiretap orders under Montana law and federal Title III.
Public Meeting Recording: MCA 45-8-213(2)(b) and HB 32
Montana law creates two distinct pathways for recording at public events, and they should not be confused.
MCA 45-8-213(2)(b): Private Persons Recording Public Meetings
For private citizens, the recording prohibition in subsection (1)(c) does not apply to persons speaking at public meetings. Anyone attending a city council meeting, school board session, or other government public meeting may record the proceedings without giving any announcement. Speakers addressing the meeting have no reasonable expectation of privacy in those public remarks, and the statute expressly removes them from protection.
Montana's Open Meetings laws under MCA Title 2, Chapter 3, Part 2 reinforce this right. MCA 2-3-212 provides that audio recordings may serve as the official record of open meetings.
HB 32 (2025): Government Recording at Public Events (MCA 40-6-701)
House Bill 32, signed February 27, 2026, by the Governor, amended MCA 40-6-701, not MCA 45-8-213. It passed the House 99 to 0 and the Senate 43 to 5.
The bill permits government entities to make audio and video recordings as part of an event open to the public (including public performances, athletic competitions, and associated preparations, dress rehearsals, and practices) without obtaining separate parental consent for minors who appear in the recording.
HB 32 does not change the recording-consent rules for private parties. It does not alter MCA 45-8-213, the announcement exception, or any other provision governing private recording. It is a limited amendment to the parental consent rules for government-entity recordings at public events. The correct citation for HB 32's effects is MCA 40-6-701, and conflating it with the 45-8-213 recording framework is an error.
Federal Law Overlay: 18 U.S.C. 2511 and FCC Rules
Montana's state recording law establishes stricter requirements than the federal baseline. Understanding both layers matters for interstate calls and federal regulatory contexts.
Federal Wiretap Act: 18 U.S.C. 2511
18 U.S.C. 2511 prohibits the interception of wire, oral, and electronic communications. The federal statute contains a one-party consent exception in 2511(2)(d): it is not unlawful for a person to intercept a wire, oral, or electronic communication where the person is a party to the communication or where one of the parties has given prior consent, unless the interception is for the purpose of committing a criminal or tortious act.
Federal law therefore permits one-party recording as the national floor. Montana's MCA 45-8-213 is more protective, requiring all-party knowledge (or an announcement), and Montana law controls for intrastate conversations. When a call involves a Montana party, Montana's announcement requirement should be followed regardless of what federal law permits.
FCC Telephone Monitoring Rules: 47 CFR 64.501
47 CFR 64.501 implements FCC telephone monitoring rules for interstate calls. These federal rules layer on top of state law; compliance with Montana's announcement requirement satisfies both.
FCC One-to-One Consent Rule: Vacated
The FCC adopted the One-to-One TCPA Consent Rule (FCC 24-24), amending 47 CFR 64.1200(f)(9) to require prior express written consent be given to one seller at a time. That rule was vacated by the Eleventh Circuit in Insurance Marketing Coalition v. FCC, No. 24-10277 (11th Cir. Jan. 24, 2025). The mandate issued April 30, 2025. The one-to-one and logically-and-topically-related requirements are not enforceable.
Montana is within the Ninth Circuit. The Eleventh Circuit's vacatur is persuasive authority in Montana federal courts, not binding precedent. No Ninth Circuit decision has applied or reinstated the rule. Businesses operating in Montana should treat the rule as unenforceable, while being aware that the persuasive-only status means no Ninth Circuit court has independently confirmed its invalidity. For TCPA compliance questions in Montana, consult current FCC guidance and qualified counsel given the evolving regulatory landscape.
The primary court record for the vacatur is at CourtListener (Insurance Marketing Coalition v. FCC, No. 24-10277).
Special Contexts: Workplace, Healthcare, Debt Collection, Schools
Workplace Recording
Montana is an at-will employment state with strong constitutional privacy protections under Article II, Section 10. Employees who record workplace conversations using the announcement exception are in compliance with MCA 45-8-213, but employer policies remain enforceable independently.
NLRB no-recording policies. The NLRB held in Stericycle, Inc. and Teamsters Local 628, 372 NLRB No. 113 (Aug. 2, 2023), that facially neutral workplace no-recording policies are presumptively unlawful if they would reasonably tend to chill employees from exercising Section 7 rights, evaluated from the perspective of an economically dependent employee contemplating protected concerted activity. Montana employers with blanket no-recording policies should review them under the Stericycle standard.
NLRB GC Memo 25-07. Separately, the NLRB Acting General Counsel directed regional offices in GC Memo 25-07 (June 25, 2025) to treat surreptitious recording of collective bargaining sessions as a per se violation of the duty to bargain in good faith under NLRA Sections 8(a)(5) and 8(b)(3). The memo states: "the use of surreptitious recordings during the collective-bargaining process is inconsistent with the openness and mutual trust necessary for the process to function as contemplated by the Act." This prosecutorial guidance is distinct from the Stericycle Board decision and targets collective bargaining specifically.
In Montana, both the federal NLRA framework and MCA 45-8-213's all-party knowledge requirement apply. Employers and employees should assume that surreptitious recording in a collective bargaining context violates both.
Healthcare Recording
Montana healthcare providers face two overlapping consent frameworks:
Under MCA 45-8-213(1)(b), healthcare facilities may record emergency telephone communications under the subsection (2)(d) exception. That exception is narrow: it covers health care emergency calls only and does not extend to routine telehealth appointments or standard clinical consultations.
HIPAA applies to any recording of a patient communication that captures protected health information (PHI). HHS OCR guidance on audio-only telehealth confirms that covered providers must apply the Privacy Rule's reasonable safeguards to remote audio communications. Any audio recording capturing PHI is subject to 45 CFR 164.508 authorization requirements and security safeguards under 45 CFR Part 164, Subpart C. Montana providers must satisfy both frameworks before recording patient calls.
Debt Collection Recording
Montana debt collectors are subject to 12 CFR 1006.100(b) (CFPB Regulation F), which requires that if a debt collector records telephone calls made in connection with debt collection, each recording must be retained for three years after the date of the call. Debt collectors are not required to record calls, but those that do must retain them. The CFPB retention obligation stacks on top of MCA 45-8-213's announcement requirement: consent (or announcement) comes first, then the three-year retention obligation applies.
School Recording
Montana schools must layer FERPA on top of MCA 45-8-213. Under FERPA (20 U.S.C. 1232g; 34 CFR Part 99), audio or video recordings that are directly related to a student and maintained by an educational institution are education records. Department of Education Student Privacy Policy Office guidance confirms that recordings of faculty discussions about a specific student's grades or recordings used for disciplinary purposes qualify as education records, and disclosing them without written parental or eligible-student consent violates FERPA (34 CFR 99.3). Montana schools must satisfy both FERPA's consent requirements and MCA 45-8-213's announcement requirement.
Recording Police and Public Officials in Montana
Montana explicitly permits recording of public officials through two independent legal foundations.
Statutory Exception: MCA 45-8-213(2)(a)
The recording prohibition in subsection (1)(c) does not apply to recording of a public official or public employee who is performing official duties. The exception requires no announcement, no consent request, and no permission from the official. The public nature of the role removes the protection of the statute for communications made in that official capacity.
This covers elected officials, appointed officials, and public employees acting within their official roles, including law enforcement officers conducting traffic stops, arrests, or other duties in public spaces.
First Amendment Right to Record
The Ninth Circuit, which covers Montana, has recognized a First Amendment right to record law enforcement officers performing their duties in public. This constitutional protection exists independently of the MCA 45-8-213 exception and applies even in circumstances where the statutory exception might not reach (for example, recording from a public sidewalk a distance away). The Reporters Committee for Freedom of the Press Montana guide provides additional context on recording rights for journalists operating in the state.
Practical Guidance
When recording police or government officials in Montana:
- No announcement is legally required under state law.
- A visible phone or camera is less likely to provoke confrontation and makes the recording's existence harder to dispute.
- Moving to a safe distance that does not interfere with law enforcement operations preserves both the constitutional right and personal safety.
- Interference with law enforcement activities is separately prohibited. The right to record does not include the right to obstruct.
State v. Goetz and Montana Case Law
State v. Goetz, 2008 MT 296
State v. Goetz, 2008 MT 296, remains the controlling Montana Supreme Court decision on the constitutionality of recording law enforcement. The case addressed the application of MCA 45-8-213 in the context of a private party recording police activity and established that the constitutional privacy protections of Article II, Section 10 must be considered alongside the statutory framework.
State v. Allen, 2010 MT 214
State v. Allen, 2010 MT 214, 357 Mont. 495, 241 P.3d 1045, established the appellate review standard for wiretap and recording suppression motions: district court factual findings are reviewed for clear error, while legal interpretations of the statute are reviewed de novo. This standard remains controlling. Last verified as controlling in the 2026-05-09 research pass; post-2023 Montana Supreme Court decisions were not independently re-verified.
No Recent Decisions
No Montana Supreme Court decisions from 2024 through May 2026 specifically construing MCA 45-8-213 were identified. The Montana Supreme Court criminal section reflects no post-2023 cases on the recording-consent provisions.
No Recent AG Opinions
The Montana Attorney General issued no opinions addressing recording laws, wiretapping, or privacy in communications in 2024, 2025, or 2026. The most recent Volume 60 opinions (through November 2024) address judicial rulemaking, legislative subpoenas, and voting eligibility. No MCA 45-8-213 guidance has been issued by the AG's office. See the Montana AG Opinions Table.
Montana Recording Law Topic Index
Montana recording law subtopics are covered in the following dedicated articles:
- Montana Audio Recording Laws
- Montana Phone Call Recording Laws
- Montana Video Recording Laws
- Montana Workplace Recording Laws
- Montana Laws on Recording Police
- Montana Laws on Recording in Public
- Montana Landlord-Tenant Recording Laws
- Montana Medical Recording Laws
- Montana School Recording Laws
- Montana Security Camera Laws
- Montana Dashcam Laws
- Montana Voyeurism Laws
For cross-state comparison, see two-party consent states and United States recording laws.