Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

Montana

Current status

Montana has two statutes regulating wiretapping and eavesdropping. The privacy in communications statute regulates how communications can be intercepted and recorded. The surreptitious visual observation statute addresses unlawful recording of other persons in two separate contexts: in a place of residence and in a public establishment.

Impact of law

Montana law is very brief. The communication privacy statute bars the recording of conversations without the knowledge of all parties to the conversation. Prior to the recording, all parties must be notified, and if one person provides the warning, either party may record. The law uses the term “human conversation” which arguably indicates an oral conversation only. With regard to electronic communication, the law summarizes all in a single phrase: “a person commits the offense of violating privacy in communications if the person purposely intercepts an electronic communication”.

As for the surreptitious surveillance of others, the law prohibits observing or recording other persons in their places of residence, regardless of any nudity or sexual context. In public establishments, the law addresses only places where a person can reasonably be expected to undress, such as restrooms, washrooms, showers, bedrooms, fitting rooms, etc.

References to Physical TSCM

The law clearly mentions hidden electronic or mechanical devices that reproduce a human conversation being used to record private conversations. Almost the same phrase is used to describe recording devices in the hidden camera law.

References to Cyber TSCM

Electronic communication is defined as any transfer between persons of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. Although the phrase “transfer between persons” is somewhat ambiguous, it is our opinion that this definition covers the digital media and consequently any cyber means of intrusion and interception.

Criminal implications

Both statuses hold penalties that increase with each similar conviction. A person convicted of violating privacy in communications can be imprisoned for up to 6 months on a first conviction and up to 5 years on a third and subsequent conviction. Fines also rise from $500 to $10.000. Similar systems of penalties are in place for surreptitious recordation.

Civil implications

Code excerpt

Mont. Code Ann. 45-8-213[1]. Privacy in communications.

(1) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the person knowingly or purposely:

(c) records or causes to be recorded a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation. This subsection (1)(c) does not apply to:

(iii) persons given warning of the transcription or recording, and if one person provides the warning, either party may record

(2) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the person purposely intercepts an electronic communication.

(3) (a) A person convicted of the offense of violating privacy in communications shall be fined an amount not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.

(b) On a second conviction of subsection (1)(a) or (1)(b), a person shall be imprisoned in the county jail for a term not to exceed 1 year or be fined an amount not to exceed $1,000, or both.

(c) On a third or subsequent conviction of subsection (1)(a) or (1)(b), a person shall be imprisoned in the state prison for a term not to exceed 5 years or be fined an amount not to exceed $10,000, or both.

(4) “Electronic communication” means any transfer between persons of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.

Mont. Code Ann. 45-5-223[2]. Surreptitious visual observation or recordation — place of residence — public establishment – exceptions.

(1) A person commits the offense of surreptitious visual observation or recordation in a place of residence if a person purposely or knowingly hides, waits, or otherwise loiters in the vicinity of a private dwelling house, apartment, or other place of residence for the purpose of:

(a) watching, gazing at, or looking upon any occupant in the residence in a surreptitious manner; or

(b) by means of an electronic or mechanical recording device, surreptitiously recording the visual image of any occupant in the residence.

(2) An owner, manager, or employee of a business or a landlord who knowingly surreptitiously records a visual image of a person in a restroom, washroom, shower, bedroom, fitting room, or other room used by a customer, guest, tenant, or member of the public to, with a reasonable expectation of privacy, commits the offense of surreptitious visual recordation in a public establishment.

(4) (a) A person convicted of the offense of surreptitious visual observation or recordation in a place of residence shall be fined an amount not to exceed $500 or be incarcerated in the county jail for a term not to exceed 6 months, or both. Upon a second conviction, a person shall be fined an amount not to exceed $1,000 or be incarcerated for a term not to exceed 1 year, or both. Upon a third or subsequent conviction, a person shall be fined an amount not to exceed $10,000 or be incarcerated for a term not to exceed 5 years, or both.

(b) A person convicted of the offense of surreptitious visual recordation in a public establishment shall be fined an amount not to exceed $1,000 or incarcerated for a term not to exceed 6 months, or both, if the victim was an adult and shall be fined an amount not to exceed $5,000 or incarcerated for a term not to exceed 2 years, or both, if the victim was a minor.

 

 

[1] Source: http://leg.mt.gov/bills/mca/45/8/45-8-213.htm

[2] Source: http://leg.mt.gov/bills/mca/45/5/45-5-223.htm