Montana recording consent law for interviews: the knowledge rule and the warning exception

Montana's recording rule is written differently from most all-party states. Under MCA 45-8-213(1)(c), it is an offense to record a conversation "by use of a hidden electronic or mechanical device" without "the knowledge of all parties to the conversation." The statute then exempts "persons given warning of the transcription or recording." For an interviewer, the takeaway is practical: say plainly, at the start, that you are recording or transcribing, and Montana's rule is satisfied. Asking for a yes on top of that covers the stricter states a call may also touch.

Comparing Montana with your own state? The consent checker handles the pairing.

This page covers the statutory wording, why "knowledge" and "warning" matter more here than "consent," how the rule applies to phone, video and in-person interviews, the penalties, cross-state calls, and a warning you can read aloud.

What the statute says

Section 45-8-213 is titled "Privacy in communications" and covers several offenses, most of them about threatening or harassing communications. The part that matters for recording is subsection (1)(c): a person commits the offense if they knowingly or purposely "record[] or cause[] 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."

Subsection (2)(a) lists four groups to which (1)(c) does not apply:

1. elected or appointed public officials or public employees when the transcription or recording is done in the performance of official duty;
2. persons speaking at public meetings;
3. "persons given warning of the transcription or recording. If one person provides the warning, either party may record"; and
4. health care facilities and agencies recording health care emergency calls.

A separate subsection, (3), makes it an offense to purposely intercept "an electronic communication," again excepting persons given warning. Electronic communication is defined broadly in subsection (6) to include sounds and data transmitted by wire, radio, electromagnetic, photoelectronic or photo-optical systems, which reaches phone and video calls.

Three elements that make Montana different

Knowledge, not consent

The offense turns on whether all parties know about the recording. Statutes in states such as Pennsylvania and Maryland require prior consent; Montana's text requires knowledge, and the warning exception confirms that telling people is what takes the recording outside the offense. A candidate who is told and keeps talking has been warned under that reading. We still recommend asking, because the same call may also be governed by a stricter state's law.

The "hidden" device element

Subsection (1)(c) applies to recording "by use of a hidden" device. It is tempting to argue that a recording app on a laptop in plain view is not hidden. We did not find a Montana decision applying that word to recording software, and a candidate on a phone or video call cannot see what is running on your computer at all. Do not rely on visibility. Rely on the warning.

Either party can give the warning

The exception says that "if one person provides the warning, either party may record." That is unusual and useful. If a candidate opens with "I'd like to record this," they have warned you; if you open with the notice, both of you are covered. It also means the warning has to be real: a sentence buried in a careers-site privacy policy is a weak substitute for saying it on the call.

How the rule applies to interview formats

Penalties

Under § 45-8-213(4)(a), a person convicted 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." The escalating penalties in (4)(b) and (4)(c) for second and third convictions apply to the harassment offenses in (1)(a) and (1)(b), not the recording offense.

The criminal exposure is lower than in Florida, Pennsylvania or Maryland, where unconsented recording is a felony. That is not a reason to be casual. A criminal complaint is still a criminal complaint, and a candidate in Montana may be speaking to a recruiter in a state with far heavier penalties.

What it means for recording or transcribing an interview

1. Transcription is covered. The exception refers to "the transcription or recording," so give the warning even if your tool keeps only text.
2. Warn before capture starts. A warning given ten minutes in does not help with the first ten minutes.
3. Make the warning specific. "This call may be recorded" leaves the candidate guessing. "I'm recording and transcribing this interview" tells them.
4. Ask anyway. Montana is satisfied by a warning, but California, Florida, Pennsylvania and others require consent. A sentence that warns and asks covers both.
5. Candidates can record too. If a candidate warns you that they are recording, the statute treats them as entitled to. Decide in advance how you will respond and be consistent.

What a good warning contains

The statute does not script the warning, so make it do the job a warning should do. Say what is happening (recording, transcription or both), when it starts (now, before the substance of the interview), and what the candidate can do about it (say no and continue with handwritten notes). Put the same information in the calendar invitation so the spoken warning is not a surprise, and note in your records that it was given. A warning that is specific, timely and repeated in writing is hard to dispute later.

Calls that cross the Montana line

The federal statute, 18 U.S.C. § 2511(2)(d), lets a party record with only their own consent, and most states follow it. Montana's knowledge rule is stricter than that baseline, and courts in all-party states have applied their own law to calls with their residents, as California's Supreme Court did in Kearney v. Salomon Smith Barney (2006). Two consequences follow:

• A recruiter in a one-party state calling a Montana candidate should give the warning, because Montana's rule may be applied to protect the person in Montana.
• A recruiter in Montana calling a candidate in California, Washington or Florida should go further than a warning and get an explicit yes, because those states require consent.

The broader framework is in recording calls across state lines.

A warning line to read in Montana

"Before we get started, I want to let you know I'm [recording /
transcribing] this interview so I have accurate notes for the [role]
position. It's kept for [period] and seen by [who]. If you'd rather I
didn't, tell me now and I'll switch it off and take notes by hand;
that won't affect your application. Is that OK?"

[Give the warning before capture starts. If they object, stop.]

This version both warns and asks, so it works in Montana and in the all-consent states. For phone-specific wording, see how to record a phone screen, and for written notices and a log, the interview recording consent script.

Checklist for interviews with a Montana end

1. Give a specific, spoken warning at the start of every interview, in every format.
2. Ask for a yes as well, so the same words work in consent states.
3. Do not rely on the "hidden" element or on a privacy policy the candidate may not have read.
4. Make sure every panel member knows the interview is being captured.
5. Treat transcripts the same as recordings.
6. Date your policy and review it when the Montana Code is updated.

Montana appears in its own row of the two-party consent states table because its rule is knowledge plus a warning exception, not all-party consent in the usual sense.