Police calls: Shotgun-wielding camper walking to town (Whitefish)

[Augustin]

Deal,

I make it to Spokane three or four times a year (wife's family), it will give me an excuse to escape.

Oough. Its a 4 hour 240 mile drive from Spokane to the Flathead Valley. Probably not worth it just to get high on gun powder. I thought if you were in the neighborhood anyway...

Aug

 

[DocWalker]

Oough. Its a 4 hour 240 mile drive from Spokane to the Flathead Valley. Probably not worth it just to get high on gun powder. I thought if you were in the neighborhood anyway...

Aug

You don't know my wifes family.....lol

 

[onus]

Right. That is my interpretation of the code. If the device is "hidden" the recording is being made secretly. Although it probably depends on the circumstances.

I think your interpretation of the law is wrong.

The code you cited is for telephone calls. In addition, there is a clear exemption for cases when communicating with government officials.

Secondly, there is NO state or federal law that prohibits "secret" audio recordings in public spaces where a person has no expectation of privacy.

 

[Augustin]

I think your interpretation of the law is wrong.

The code you cited is for telephone calls. In addition, there is a clear exemption for cases when communicating with government officials.

Secondly, there is NO state or federal law that prohibits "secret" audio recordings in public spaces where a person has no expectation of privacy.

onus, Sir,

I do appreciate folks with contrary opinions. One can learn a lot by reading other's opinions on this and other forums, myself included. I may very well be wrong, but I don't think so.


MCA 45-8-213 doesn't specifically apply to JUST telephone use, but instead is more broad in that it covers all types of "electronic communication(s)."

So this includes not just phones, but also HAM radios, walkie-talkies, faxes, e-mails, teleconferencing, instant messaging, bulletin boards, threads, social networking, Skype, text messaging, video conferencing, discussion groups, etc. - any "electronic communication."

That is found in section (a) and (b).


Section (c) - the part of the law I'm discussing - has nothing to do with sections (a) and (b).

The law reads:

"45-8-213. 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:"

and then it lists the 3 sections (a), (b), and (c).

A violation of any one of these sections is a violation of 45-8-213.

In other words, one can violate section (c) without violating either section (a) or (b).

Try reading the code WITHOUT section (a) or (b):

"45-8-213. Privacy in communications.(1)... , 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."


Next, your statement "In addition, there is a clear exemption for cases when communicating with government officials" is not right.

What that means is that the persons or organizations listed are EXEMPT. Many laws exempt certain individuals. This is very common. Cops, in particular, are exempt from many laws.

A good example of this can be found in Montana's concealed carry laws, which do not apply to:

"any peace officer of the state of Montana or of another state who has the power to make arrests; any officer of the United States government authorized to carry a concealed weapon; a person in actual service as a member of the national guard; a person summoned to the aid of any of the persons named in subsections (1)(a) through (1)(c); a civil officer or the officer's deputy engaged in the discharge of official business; a probation and parole officer authorized to carry a firearm under 46-23-1002; a person issued a permit under 45-8-321 or a person with a permit recognized under 45-8-329; an agent of the department of justice or a criminal investigator in a county attorney's office; a person who is outside the official boundaries of a city or town or the confines of a logging, lumbering, mining, or railroad camp or who is lawfully engaged in hunting, fishing, trapping, camping, hiking, backpacking, farming, ranching, or other outdoor activity in which weapons are often carried for recreation or protection; or the carrying of arms on one's own premises or at one's home or place of business."

MCA 45-8-213 has a similar list of people who are exempt from the law. It "does not apply to" "elected or appointed public officials or to public employees when the transcription or recording is done in the performance of official duty; persons speaking at public meetings; persons given warning of the transcription or recording, and if one person provides the warning, either party may record; or a health care facility, or a government agency that deals with health care if the recording is of a health care emergency telephone communication made to the facility or agency."

AND THESE EXEMPTIONS SPECIFICALLY AND ONLY APPLY TO "subsection (1)(c)".

Take a closer look at the verbiage:

"(i) elected or appointed public officials or to public employees when the transcription or recording is done in the performance of official duty;"

This says that the officials are exempt when the recording THEY make is done in their official capacity - "in the performance of official duty".

If you record a cop during an OC detention/arrest, you are not functioning in an official capacity, only the cop is.

Stated oppositely, cops and the others listed are not exempt from the law when they are not functioning in an official capacity.

So if your are, for example, giving a public speech, you are allowed to record the speech using a hidden device without notifying anyone. Similarly, if you are a nurse or doctor working in an emergency room, you are allowed to use a hidden recorder without notifying the patients, family members, etc. Next time you go to an ER you'll likely notice that most all staff members are wearing a pendant recorder. The docs and nurses routinely record the conversations for their legal protection. They are exempt from Montana's Privacy in Communications law. But they are not exempt while off-duty and not working.

I hope this helps. I'll welcome yours and others further discussion.

Augustin

 

[onus]

onus, Sir,

I do appreciate folks with contrary opinions. One can learn a lot by reading other's opinions on this and other forums, myself included. I may very well be wrong, but I don't think so.


MCA 45-8-213 doesn't specifically apply to JUST telephone use, but instead is more broad in that it covers all types of "electronic communication(s)."

So this includes not just phones, but also HAM radios, walkie-talkies, faxes, e-mails, teleconferencing, instant messaging, bulletin boards, threads, social networking, Skype, text messaging, video conferencing, discussion groups, etc. - any "electronic communication."

I am only talking about subsection (c)....

There is a wealth of case law that says most communications other than phone calls have no expectation of privacy.

No matter what Montana law says or what the intent is, "secretly" recording a conversation in public is protected.

 

[DocWalker]

There is a wealth of case law that says most communications other than phone calls have no expectation of privacy.

This is what I understand to be true also. That it involves the "expectation of privacy".

As in a "Public" official on a "Public" street has no expectation of privacy. It doesn't matter if you have a 1980's VHS camera or a spy-cam. It has to do with the "Expectation" of privacy.

 

[MontanaResident]

This is what I understand to be true also. That it involves the "expectation of privacy".

As in a "Public" official on a "Public" street has no expectation of privacy. It doesn't matter if you have a 1980's VHS camera or a spy-cam. It has to do with the "Expectation" of privacy.

I once had "Expectation" of privacy that my emails to my friends are not being read by the NSA. :uhoh:

Laws and their interpretation are subject to the whims of those in charge. If you are not in charge, be happy that you can still find your arse with both hands.

 

[Augustin]

I am only talking about subsection (c)....

There is a wealth of case law that says most communications other than phone calls have no expectation of privacy.

No matter what Montana law says or what the intent is, "secretly" recording a conversation in public is protected.

onus and all,

I know two attorneys here in the Flathead Valley of Montana that I'll ask about this issue when I get the chance.

One is Tim Baldwin, the son of well known pastor Chuck Baldwin, and co-author of the book, "To Keep of Not to Keep, Why Christians Should Not Give Up Their Guns."

The other is Stewart Rhoads, the President and Founder of Oath Keepers. He is a Yale-educated Constitutional attorney.

I see them both VERY infrequently around town, at church, at the local gun shows, shooting ranges, etc. But there is good chance I'll run into one or the other sometime within the next 3 to 6 months.

When I do see one of them I'll ask them about MCA 45-8-213, and post their reply here.

I know 3 to 6 months is a terminally long time out, but that's the best I can do.

Augustin

 

[DocWalker]

onus and all,

I know two attorneys here in the Flathead Valley of Montana that I'll ask about this issue when I get the chance.

One is Tim Baldwin, the son of well known pastor Chuck Baldwin, and co-author of the book, "To Keep of Not to Keep, Why Christians Should Not Give Up Their Guns."

The other is Stewart Rhoads, the President and Founder of Oath Keepers. He is a Yale-educated Constitutional attorney.

I see them both VERY infrequently around town, at church, at the local gun shows, shooting ranges, etc. But there is good chance I'll run into one or the other sometime within the next 3 to 6 months.

When I do see one of them I'll ask them about MCA 45-8-213, and post their reply here.

I know 3 to 6 months is a terminally long time out, but that's the best I can do.

Augustin

I appriciate your efforts.

I also don't think 6 months is very long; but I guess I'm jaded from multiple deployments overseas.