This subsection (1)(c) does not apply to:
(i) elected or appointed public officials or to public employees when the transcription or recording is done in the performance of official duty;
This one specifically says that we can record elected, appointed or public employees as they are performing official duties.
DocWalker,
When the MCA states, “This subsection (1)(c) does not apply to:” that means that the people mentioned are EXEMPT from the law. Seems to me you have it backwards.
There are a patchwork of various state laws that govern recording the communications of others, including wiretapping and eavesdropping laws. These laws may impose liability for recording audio of a conversation without the consent of one or more parties, or for making secret audio recordings. Federal laws apply when a call is made across state lines.
MCA 45-8-213 only outlaws SECRET recordings. It is not required that the police give you their permission to record them, only that you give them a “warning of the ... recording.”
First Amendment considerations arise when you are openly recording the activities of police (or other public officials) carrying out their duties in public places. A number of U.S. Courts of Appeals have held that, in such circumstances, the First Amendment protects the right to record audio and video regardless of whether the police/officials consent. This constitutional right would override any state or federal laws that would otherwise prohibit such recording.
Twelve states require the consent of every party to a phone call or conversation in order to make the recording lawful. These "two-party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washington. Although they are referred to as "two-party consent" laws, consent must be obtained from every party to a phone call or conversation if it involves more than two people.
In some of these states, including in Montana, it might be enough if all parties to the call or conversation know that you are recording and proceed with the communication anyway, even if they do not voice explicit consent. So if you are recording one cop and another arrives on scene after you have informed him/her, you are required to inform the newly arrived cop as well.
There have been several public cases of people being charged with violating MCA 45-8-213. All of the cases that I’m aware of involved a violation of subsection (a).
"(a) with the purpose to terrify, intimidate, threaten, harass, annoy, or offend, communicates with a person by electronic communication and uses obscene, lewd, or profane language, suggests a lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of the person. The use of obscene, lewd, or profane language or the making of a threat or lewd or lascivious suggestions is prima facie evidence of an intent to terrify, intimidate, threaten, harass, annoy, or offend."
Most notable of these was that of Jason Christ (an idiot of the highest degree). This medical marijuana advocate threatened employees at Verizon. Another was that Randall Dugan of Belgrade who used a sexual slur with a Gallatin County Victim Assistance Program worker during an October 2009 phone call. I’m not aware of a single case being prosecuted for violating subsection (c).
The important thing is, not so much that you might get busted for secretly recording, but instead that your recording, done illegally, couldn’t be admissible in a court of law for your defense.
So if you do secretly record the police during an OC detention/arrest, it won’t help you in your defense.
AUGustin
