South Dakota Recording Laws: Consent Rules and Penalties

Quick Answer

South Dakota is a one-party consent state. You can legally record phone calls and in-person conversations as long as you are a party to the conversation or have consent from at least one participant. The South Dakota Supreme Court has confirmed that one party's consent to recording removes it from prohibited wiretap violations. Illegal recording is a Class 5 felony.

Key Point	Answer
Consent Type	One-Party
Can you record your own calls?	Yes
Must you inform others?	No
Primary Statute	S.D. Codified Laws § 23A-35A-20
Criminal Penalty	Class 5 Felony (up to 5 years, $10,000 fine)
Civil Damages	No statutory civil remedy

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Understanding South Dakota's Recording Laws

The Legal Foundation

South Dakota's wiretapping and electronic surveillance laws are found in Chapter 23A-35A of the South Dakota Codified Laws, titled "Interception of Wire, Electronic, or Oral Communications." The key statute is S.D. Codified Laws § 23A-35A-20, which addresses the unlawful interception of communications.

Under this statute, a person who is not a sender or receiver of a communication may not intentionally record that communication without the consent of either a sender or receiver. Likewise, a person who is not present during an in-person conversation may not intentionally record it without the consent of at least one participant. If you are a party to the conversation, your own consent satisfies the requirement.

The South Dakota Supreme Court has affirmed that one party's consent to recording removes the conversation from the type of interception prohibited under the wiretapping statute.

What Communications Are Covered

South Dakota's recording law applies to:

• Wire communications - Phone calls, including landlines, cell phones, and VoIP
• Oral communications - In-person conversations where there is an expectation of privacy
• Electronic communications - Text messages, emails, and video calls

One-Party vs. Two-Party Consent Explained

In a one-party consent state like South Dakota, only one person in the conversation needs to know about and consent to the recording. That person can be you. You do not need to announce "this call is being recorded" or get anyone else's permission before pressing record.

In contrast, two-party (or all-party) consent states like California require everyone in the conversation to agree to be recorded.

Recording Phone Calls in South Dakota

Can You Record Phone Calls in South Dakota?

Yes. Under S.D. Codified Laws § 23A-35A-20, you can record any phone call you participate in without informing the other party. This applies to:

• Landline calls
• Cell phone calls
• VoIP calls (Zoom, Teams, Google Meet, etc.)
• Video calls

Recording Calls Across State Lines

If you are in South Dakota calling someone in a two-party consent state, the stricter law typically applies. States requiring all-party consent include:

• California
• Connecticut
• Florida
• Illinois
• Maryland
• Massachusetts
• Montana (nearby)
• Nevada (for phone calls)
• New Hampshire
• Pennsylvania
• Washington

Best practice: When calling people in two-party consent states, inform them or get explicit consent before recording.

Business Call Recording

South Dakota businesses can record calls for quality assurance, training, or compliance purposes. While state law does not require businesses to notify callers, many choose to provide notice as a best practice. Common methods include:

• Verbal consent before the call begins
• A recorded announcement ("This call may be recorded for quality purposes")
• A periodic beep tone during the call

Federal regulations under the Telephone Consumer Protection Act may also apply to certain business recordings, so companies should review both state and federal requirements.

Recording In-Person Conversations

When Is It Legal?

You can record in-person conversations in South Dakota when:

• You are participating in the conversation
• You are in a public place where there is no reasonable expectation of privacy
• You have consent from at least one party (which can be yourself)

Expectation of Privacy

South Dakota law specifically protects oral communications where a person exhibits an expectation that the communication is not subject to interception. This means:

• Conversations in public places (restaurants, parks, sidewalks) generally carry less privacy protection
• Private conversations in private locations receive the strongest protection
• Context matters when courts assess whether a privacy expectation was reasonable

When Is It Illegal?

Recording becomes illegal in South Dakota when:

• You are not a party to the conversation and do not have consent from any participant
• You record in areas with a reasonable expectation of privacy (bathrooms, changing rooms, bedrooms)
• You disclose or use illegally obtained recordings
• You use hidden cameras or drones to record someone who has a privacy expectation

What About Recording in Your Own Home?

You can record conversations in your own home as long as you are participating. However, you cannot:

• Plant a hidden device and leave to record others without being present
• Record guests in areas where they have privacy expectations (bathrooms, guest bedrooms)
• Record intimate activities without consent

South Dakota Video Recording Laws

Public Spaces

South Dakota has no general prohibition on video recording in public spaces. You can:

• Film on public streets, parks, and sidewalks
• Record public meetings and government proceedings
• Use dashcams in your vehicle
• Film public protests or demonstrations

Hidden Cameras and Drones (SDCL § 22-21-1)

South Dakota law under SDCL § 22-21-1 has specific restrictions on surveillance devices:

• It is a Class 1 misdemeanor to install any device to observe, photograph, or record a person in a private place without the consent of the person entitled to privacy there
• Using drones to intentionally photograph, record, or observe another person in a private place where they have a reasonable expectation of privacy is also prohibited
• Law enforcement officers acting in the performance of their lawful duties are exempt from these restrictions

A Class 1 misdemeanor carries up to 1 year in jail and a $2,000 fine.

Voyeurism and Non-Consensual Recording (SDCL § 22-21-4)

South Dakota also prohibits visual recording for voyeuristic purposes under SDCL § 22-21-4:

• No person may use any device to photograph or visually record another person without clothing, or under or through their clothing, without the person's consent and with intent to self-gratify, harass, or embarrass
• A first offense is a Class 1 misdemeanor
• If the victim is 17 or younger and the perpetrator is at least 21, it becomes a Class 6 felony

Private Property and Privacy

On private property, the property owner sets the rules for recording. South Dakota law also addresses:

• Non-consensual dissemination of intimate images (commonly called "revenge porn")
• AI-generated deepfake images depicting a person in a state of nudity or in a sexually explicit act (addressed by new 2026 legislation under SB 41)

If you are recording someone's likeness for business purposes, you should ensure that you gain proper consent by having them fill out a photo or video consent form.

Recording in the Workplace

Can Your Employer Record You?

South Dakota employers can generally record in common work areas where employees do not have a privacy expectation. However, employers cannot record in:

• Bathrooms
• Locker rooms
• Changing areas

Can You Record Your Employer?

Yes. As a one-party consent state, you can record conversations with your boss, HR representatives, coworkers, or anyone else at work as long as you are part of the conversation. This can be valuable for:

• Documenting harassment or discrimination
• Recording performance reviews
• Protecting yourself in workplace disputes
• Preserving important instructions or agreements

Caution: Your employer may have internal policies against recording. While recording is legal under South Dakota law, violating company policy could result in disciplinary action or termination. Check your employee handbook before recording at work.

Recording Police and Government Officials

Can You Record Police Officers in South Dakota?

Yes. The First Amendment protects your right to record law enforcement officers performing their duties in public. In South Dakota, you can:

• Film traffic stops (including your own)
• Record arrests happening in public
• Document interactions with police
• Livestream encounters

Important limitations:

• Do not interfere with police operations
• Do not trespass to get a better angle
• Follow lawful orders to step back (within reason)
• Do not obstruct the officer's duties

Recording Government Meetings

South Dakota's Open Meetings Law (S.D. Codified Laws § 1-25) requires most government meetings to be open to the public. Recording of public meetings is generally permitted. You can record:

• City and county commission meetings
• School board meetings
• State legislative proceedings
• Public hearings

Specific Situations

Can I Record My Landlord in South Dakota?

Yes, if you are part of the conversation. Recording interactions with landlords can help document:

• Verbal agreements about repairs
• Harassment or illegal entry complaints
• Disputes about lease terms
• Evidence for tenant rights cases

Can I Record My Doctor in South Dakota?

Yes, you can record medical appointments you attend. This can be helpful for:

• Remembering complex medical instructions
• Documenting informed consent discussions
• Having a record of diagnoses and treatment plans
• Sharing information with family caregivers

Note that while recording is legal, some medical facilities may have their own policies about recording on their premises.

Can I Record DSS Workers?

Yes. Department of Social Services (DSS) workers are government employees, and you can record your interactions with them as long as you are participating in the conversation.

Can I Record My Ex-Spouse or Co-Parent?

Yes, during conversations you are part of. This is common in custody disputes. However:

• Do not record your children's private conversations without being present
• Do not use children to secretly record the other parent
• Consider how recordings may be viewed by South Dakota family courts
• Courts may weigh the circumstances under which a recording was made

Can I Use a Dashcam in South Dakota?

Yes. Dashcams are legal in South Dakota. There are no specific laws restricting their use, but you should:

• Mount the camera so it does not obstruct your view
• Be aware that audio recording follows one-party consent rules
• Check if your insurance offers dashcam discounts

Using Recordings as Evidence in South Dakota

Are Recordings Admissible in Court?

Recordings made legally under South Dakota's one-party consent law are generally admissible as evidence. The South Dakota Supreme Court has recognized that recordings made with one party's consent can be used in legal proceedings. Courts typically consider:

• Authentication - Can you prove the recording is genuine and unaltered?
• Relevance - Does the recording relate to the issues in the case?
• Hearsay rules - Some statements captured in recordings may be excluded under hearsay rules
• Prejudicial vs. probative value - Does the recording's value as evidence outweigh any potential to unfairly influence the jury?

Criminal Cases vs. Civil Cases

• Criminal cases: Illegally obtained recordings are typically inadmissible and may result in criminal charges against the person who made the recording
• Civil cases: Rules can be more flexible, but illegally obtained evidence may still be excluded and could expose you to criminal liability

Penalties for Illegal Recording in South Dakota

Criminal Penalties

Violating South Dakota's wiretapping and recording laws carries significant criminal penalties:

Offense	Classification	Potential Penalty
Illegal interception (SDCL § 23A-35A-20)	Class 5 Felony	Up to 5 years imprisonment, up to $10,000 fine
Disclosing intercepted communications	Class 5 Felony	Up to 5 years imprisonment, up to $10,000 fine
Using illegally obtained communications	Class 5 Felony	Up to 5 years imprisonment, up to $10,000 fine
Hidden camera/drone surveillance (SDCL § 22-21-1)	Class 1 Misdemeanor	Up to 1 year in jail, up to $2,000 fine
Voyeuristic recording (SDCL § 22-21-4)	Class 1 Misdemeanor	Up to 1 year in jail, up to $2,000 fine
Voyeuristic recording of minor (victim under 18, perpetrator 21+)	Class 6 Felony	Up to 2 years imprisonment, up to $4,000 fine

No Statutory Civil Remedy for Wiretapping

Unlike many other states, South Dakota does not authorize civil lawsuits specifically for violations of its wiretapping statute (Chapter 23A-35A). Victims of illegal wiretapping cannot sue for damages under this statute.

However, victims may still have legal options. Common law claims such as invasion of privacy, intentional infliction of emotional distress, or other tort claims may be available depending on the circumstances. Victims of non-consensual intimate image dissemination do have a civil remedy under separate statutes. Consulting with a South Dakota attorney is recommended for anyone who believes their conversations were illegally recorded.

2026 Legislative Update: Deepfake Laws

The 2026 South Dakota legislative session introduced significant new protections related to digitally manipulated recordings and images:

• SB 41 targets the creation or distribution of AI-generated deepfake images depicting a person in a state of nudity or engaged in a sexually explicit act. Attorney General Marty Jackley proposed this bill, and the State Senate passed it unanimously.
• SB 164, signed by Governor Larry Rhoden, prohibits the use of deepfakes to influence elections within 90 days of an election. Violations are a Class 1 misdemeanor.

During legislative debate, lawmakers noted a gap between penalties for hidden recordings (a misdemeanor) and penalties for digitally fabricated images (a felony under SB 41). Attorney General Jackley indicated openness to addressing this disparity in future sessions.

These developments reflect South Dakota's growing awareness of how digital technology intersects with privacy and recording laws.

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