Montana Video Recording Laws: Consent Rules, Surveillance, and Penalties (2026)

In Montana, silent video recording in public is generally lawful under the First Amendment and falls outside MCA 45-8-213. Video that captures audio requires all-party knowledge under MCA 45-8-213. Secretly filming an occupant of a residence, or recording anyone's sexual or intimate parts in a public place without their knowledge, is prohibited by MCA 45-5-223.

Montana does not have a single comprehensive video recording statute. Instead, video recording is governed by a combination of the privacy in communications law (MCA 45-8-213), the surreptitious visual observation statute (MCA 45-5-223), and constitutional privacy protections under Article II, Section 10 of the Montana Constitution.

The legal analysis depends on two key factors: whether the video captures audio, and whether the recording takes place in a public or private setting. Understanding these distinctions is critical for anyone using cameras, smartphones, or surveillance equipment in Montana.

Video Recording With Audio vs. Without Audio

The most important distinction in Montana video recording law is whether the recording captures sound.

Silent Video Recording

Silent video recording (no audio) is generally not covered by MCA 45-8-213 because that statute specifically addresses the recording of "a conversation" using a hidden device. Where there is no audio capture of human conversation, the communications statute does not apply.

Silent video recording in public spaces is protected activity under the First Amendment. Courts, including the Ninth Circuit Court of Appeals (which covers Montana), have recognized a constitutional right to record matters of public interest in public places.

However, even silent video recording can violate MCA 45-5-223 if it involves secretly filming an occupant of a residence or recording someone's sexual or intimate parts in a public place without their knowledge.

Video Recording With Audio

When video recording also captures audio of a private conversation, the full weight of MCA 45-8-213 applies. The recording is treated the same as an audio-only recording: all parties must have knowledge of the recording, or the warning exception must be invoked.

In practice, this means that turning on a video camera in a private setting where conversations are taking place requires either:

• A warning to all parties that the recording is happening (satisfying MCA 45-8-213(2)(a)(iii)), or
• The recording involves a public official performing official duties or a public meeting (other statutory exceptions).

Surreptitious Visual Observation: MCA 45-5-223

Montana's MCA 45-5-223 addresses secret visual recording and observation. This statute is separate from the communications law and applies even when no audio is captured.

What the Law Prohibits

MCA 45-5-223 covers two distinct categories of prohibited conduct. Under the first prong, a person commits an offense if they knowingly or purposely hide, wait, or loiter in person or by remote electronic device within or near a private dwelling house, apartment, or other place of residence to watch, gaze at, or electronically observe or record an occupant of that residence without the occupant's knowledge. This prong is residence-specific and does not, by its own text, reach general observation or filming in a non-residential space such as a hotel room, business restroom, or locker room.

Under the second prong, it is illegal to knowingly or purposely observe or record the sexual or intimate parts of another person in a public place without their knowledge when they have a reasonable expectation of privacy. This prong applies regardless of whether the location is a residence, but it reaches only recording of intimate body parts specifically, not general (non-intimate) filming.

Reasonable Expectation of Privacy

A person retains a reasonable expectation of privacy regarding their sexual or intimate parts specifically (triggering the statute's public-place prong if those parts are recorded) in locations such as:

• Bedrooms and bathrooms in private residences (residences additionally trigger the statute's separate observation prong regardless of what is recorded)
• Changing rooms and fitting rooms in retail stores
• Restrooms in any facility
• Hotel and motel rooms
• Locker rooms and shower areas
• Any other location where a person is in a state of undress and reasonably expects they are not being observed

General (non-intimate-parts) filming in a non-residential space like a hotel room, business restroom, or locker room may fall outside both prongs of this specific statute, even though it may be independently actionable under other privacy law.

Penalties for Surreptitious Visual Observation

• First offense: Misdemeanor, punishable by up to 6 months in jail and a $500 fine
• Second conviction: Up to 1 year in jail and a $1,000 fine
• Third or subsequent conviction: Up to 5 years and a $10,000 fine. MCA 45-5-223(4) has its own graduated penalty structure that escalates with repeat convictions, similar to MCA 45-8-213.

Video Recording in Public Spaces

Recording video in public spaces in Montana is generally lawful, with some important caveats.

First Amendment Protections

The First Amendment to the U.S. Constitution protects the right to record in public places. This includes recording:

• Streets, sidewalks, parks, and other public areas
• Government buildings (common areas accessible to the public)
• Public events, protests, and demonstrations
• Interactions with public officials performing official duties

The Ninth Circuit, which has jurisdiction over Montana, has recognized these recording rights in multiple decisions.

Limitations on Public Recording

Even in public spaces, certain recording activities may be restricted:

• Recording that interferes with law enforcement operations can result in obstruction charges, although the act of recording itself is not interference.
• Recording in areas with restricted access (military installations, certain government facilities) may be prohibited by federal or state regulations.
• Video recording that captures audio of private conversations in public still triggers MCA 45-8-213 if a hidden device is used. For example, placing a hidden camera with a microphone to capture a conversation at a restaurant table would violate the statute, even though the restaurant is a public place.

Video Surveillance on Private Property

Property owners in Montana have broad rights to install video surveillance on their own property, subject to certain restrictions.

What Property Owners May Do

• Install security cameras on the exterior of their property
• Record video of common areas within a business
• Use video doorbells and similar devices
• Monitor driveways, parking lots, and entryways

Restrictions on Private Property Surveillance

• Cameras placed to observe occupants of bedrooms or bathrooms in a residence risk violating MCA 45-5-223's residence-observation prong, and any camera capturing someone's sexual or intimate parts without their knowledge in a bathroom or changing room risks violating the statute's public-place prong
• If cameras capture audio, the all-party knowledge requirement of MCA 45-8-213 applies
• MCA 45-5-223 prohibits secret visual observation of persons in private spaces, even on the property owner's own premises
• Montana's constitutional right to privacy (Article II, Section 10) may provide additional protections for individuals recorded on someone else's property

Signage and Notice

While Montana does not have a specific statute requiring signage for video surveillance, posting visible signs serves several purposes:

• It may satisfy the "knowledge" requirement under MCA 45-8-213 if the cameras also capture audio
• It reduces the risk of civil liability for invasion of privacy claims
• It aligns with Montana's constitutional privacy values by providing transparency

Non-Consensual Intimate Images: 2025 Amendment

The 2025 amendment to MCA 45-8-213 added important provisions addressing video recordings of an intimate nature.

What the Amendment Covers

Under new subsections (1)(d) and (1)(e), it is a criminal offense to:

• Publish, distribute, or disclose real or digitally fabricated (including AI-generated) photographs, images, or videos of an identifiable person without consent, with the purpose to terrify, intimidate, threaten, harass, or injure, if the images show intimate body parts or sexual activity.
• Possess and threaten to disclose such images to obtain money or other valuable consideration.

AI-Generated Content

The statute specifically defines "digitally fabricated" to include media created using artificial intelligence that realistically misrepresents a person as engaging in conduct they did not actually engage in. This places Montana among the growing number of states addressing deepfake pornography.

Penalties

• First offense: Misdemeanor
• Second or subsequent offense: Felony, up to 5 years in prison and a $25,000 fine

Exceptions

The law includes exceptions for voluntary public exposure, disclosures in the public interest (including reporting unlawful conduct), law enforcement activities, legal proceedings, medical treatment, and educational or scientific materials.

Drone Video Recording

Montana addresses drone (unmanned aerial vehicle) recording through two separate statutes: MCA 46-5-109, which limits how drone-gathered evidence can be used in court, and MCA 45-6-210, which makes it a criminal offense to fly a drone low over another person's property without authorization.

Drone Surveillance Restrictions

Under Montana law:

• Knowingly flying a drone 200 feet or lower over another person's property or residence without that person's authorization is criminal trespass by unmanned aerial vehicle under MCA 45-6-210, punishable by a $500 fine.
• Information gathered by a drone is not admissible in a Montana prosecution or other proceeding unless it was obtained under a search warrant, a judicially recognized exception to the warrant requirement, or during the investigation of a public-roadway crash (MCA 46-5-109).
• Drone-obtained information also cannot be used in a probable cause affidavit to obtain a search warrant unless it meets one of those same conditions.
• MCA 45-6-210's trespass offense exempts government agencies acting for public safety, environmental protection, firefighting, law enforcement, or emergency response, along with certain licensed utility and business operations.

Federal Aviation Administration Rules

Drone operators in Montana must also comply with Federal Aviation Administration (FAA) regulations, including registration requirements, altitude restrictions, and airspace rules. These federal rules apply in addition to Montana's state-level trespass and evidence restrictions.

Recording in the Workplace

Video recording in Montana workplaces raises issues under both state recording law and employment law.

Employer Video Surveillance

Employers may generally install visible security cameras in common areas of the workplace (hallways, lobbies, production floors). However:

• A camera capturing an employee's sexual or intimate parts in restrooms, locker rooms, or changing areas violates MCA 45-5-223's public-place prong, though the statute's text does not clearly reach a camera in those areas that captures no intimate footage
• Audio-enabled cameras trigger MCA 45-8-213, requiring employee knowledge or warning
• Montana is the only state with the Wrongful Discharge from Employment Act (WDEA), codified at MCA 39-2-901 through 39-2-915, which may be relevant if recording disputes lead to termination

Employee Video Recording

Employees who wish to record in the workplace should:

• Provide a clear warning if capturing audio
• Be aware that employer policies may prohibit recording even when state law permits it
• Understand that violating a workplace recording policy may result in discipline, though Montana's WDEA provides more protections against wrongful termination than most states

Admissibility of Video Evidence

Video recordings are generally admissible in Montana courts if they were obtained lawfully. Key considerations include:

• Video obtained in violation of MCA 45-8-213 (hidden audio recording without knowledge) is inadmissible
• Video obtained in violation of MCA 45-5-223 (surreptitious visual observation) may face admissibility challenges
• Properly obtained video evidence must still satisfy rules of authentication and relevance under the Montana Rules of Evidence

TAKE IT DOWN Act (Federal, May 19 2025)

The TAKE IT DOWN Act, signed May 19, 2025 (Pub. L. 119-12), criminalizes publishing non-consensual intimate images (NCII) online, including AI-generated deepfakes, without the subject's consent. The Act's one-year platform-compliance deadline of May 19, 2026 has now passed. Online platforms must remove flagged content within 48 hours of a valid takedown request. The Act creates federal criminal liability and a civil enforcement mechanism.

For video recordings, the TAKE IT DOWN Act provides a federal takedown and enforcement layer that works alongside Montana's MCA 45-8-213(1)(d)/(1)(e) intimate-image provisions and MCA 45-5-223. Where a video recording is used to create or distribute NCII, all three frameworks may apply simultaneously in Montana.

More Montana Recording Laws

Audio Recording | Video Recording | Voyeurism & Hidden Cameras | Workplace Recording | Recording Police | Phone Call Recording | Security Cameras | Recording in Public | Landlord-Tenant | Dashcam Laws | Schools | Medical Recording

Back to Montana Recording Laws

More Montana Recording Topics

• Montana Biometric Privacy Laws
• Surveillance Camera Laws

More Montana Laws

• Montana AI Meeting Recording Laws
• Montana Dashcam Laws
• Montana Data Privacy Laws
• Montana Deepfake Laws
• Montana Employee Monitoring Laws
• Montana GPS Tracking Laws
• Montana Police Bodycam Laws
• Montana Smart Glasses Recording Laws