South Dakota AI Meeting Recording Laws (2026)

South Dakota's eavesdropping statute, S.D. Codified Laws Section 23A-35A-20, takes an unusual structural approach to recording consent. South Dakota's statute directly targets non-parties who use eavesdropping devices without consent, and its felony provision opens with an explicit cross-reference to a separate exceptions section, S.D. Codified Laws Section 23A-35A-21. The practical result is a one-party consent framework: a person who participates in a conversation can record it without informing others. For AI meeting recording tools, the key element is consent: a non-party who records commits the felony only if neither a sender nor a receiver consented, so a bot that a participant deliberately invites is generally covered, while a bot that records with no consenting participant is not.

South Dakota's Recording Consent Framework

South Dakota's eavesdropping law is codified at S.D. Codified Laws Section 23A-35A-20. The statute identifies three categories of prohibited conduct, each targeting a specific type of unauthorized eavesdropping.

The operative clause is oddly built, and the wording matters, so it is worth reading as enacted: "Except as provided in § 23A-35A-21, a person is guilty of a Class 5 felony who is not: (1) A sender or receiver of a communication who intentionally and by means of an eavesdropping device overhears or records a communication ... without the consent of either a sender or receiver of the communication; (2) A person present during a conversation or discussion who intentionally and by means of an eavesdropping device overhears or records the conversation or discussion ... without the consent of a party to the conversation or discussion; or (3) A member of a jury who intentionally records or listens to by means of an eavesdropping device the deliberations of the jury."

The opening negation ("who is not") grammatically governs all three subdivisions, and that is where the text becomes genuinely ambiguous. Read with subdivision (1), it describes an outsider: someone who is not a sender or receiver and who uses an eavesdropping device on the communication. Read the same way into subdivision (2), the prefix would reach a person who is not present during the conversation, which is close to the opposite of how the subdivision reads on its own. South Dakota courts have not construed the provision, so the exact reach of subdivision (2) is unsettled. The third subdivision addresses jury members who record deliberations.

One-Party Consent Through Statutory Structure

South Dakota's felony provision at Section 23A-35A-20 begins with an explicit cross-reference to a separate exceptions section, stating "Except as provided in § 23A-35A-21." Independent of that cross-reference, the way the statute defines prohibited conduct also produces a one-party consent result. Because the statute only prohibits non-party interception (and present-party recording without consent), a party to a conversation who records it is simply outside the scope of the prohibited categories. This structural approach means that consent from one party (even the recording party themselves) generally satisfies the statute.

What the Statute Covers

The statute applies to two broad categories. "Communications" includes wire and electronic transmissions such as phone calls, VoIP calls, and digital communications. "Conversations or discussions" covers oral, in-person exchanges. The use of an "eavesdropping device" is a required element; the statute does not apply to overhearing a conversation without a recording device.

The "Present During" Distinction

A non-party who intercepts a communication remotely (such as tapping a phone line) is the clearest target of the statute. Subdivision (2), which speaks of a person "present during a conversation or discussion" who uses an eavesdropping device without the consent of a party, is harder to pin down because of the "who is not" prefix discussed above. On one reading it adds in-person eavesdropping by someone in the room; on the literal reading of the prefix it reaches a person who is not present. Either way, the question is relevant to AI meeting bots that are "present" in virtual meetings as named attendees, and no South Dakota court has answered it.

Federal Law Alignment

Both South Dakota law and the federal Wiretap Act, 18 U.S.C. Section 2511, allow recording with a participant's consent. The difference is the purpose limit. Federal one-party consent does not protect a recording made "for the purpose of committing any criminal or tortious act" (18 U.S.C. Section 2511(2)(d)), and South Dakota's statute has no such limit. So a recording can be lawful under South Dakota law and still create federal exposure.

No single rule decides which state's law governs a call or meeting that crosses state lines, and courts have not settled the question. Some courts apply the law of the place where the recording is made. In Kearney v. Salomon Smith Barney (2006), California's Supreme Court held that California's all-party rule governs a business's future recording of calls with California residents from another state, but it applied Georgia law to the past recordings and allowed no damages for them. When a participant is in an all-party consent state such as California or Illinois, the safe practice is to get everyone's consent.

How South Dakota Law Applies to AI Meeting Recorders

South Dakota's statute is particularly direct in its relevance to AI meeting bots. The law targets "a person who is not a sender or receiver" of a communication who uses a device to record without consent. That language describes a third-party AI service's position, but the consent element decides the outcome: the recording is a felony only if neither a sender nor a receiver consented.

AI Bots as Non-Party Eavesdroppers

Under Section 23A-35A-20, the first prohibited category covers a person who is not a sender or receiver of a communication and who uses an eavesdropping device to record without consent. When a participant activates a third-party AI service that joins a meeting independently, the AI vendor receives and records communication content through its own infrastructure. The vendor is not a sender or receiver of the communication in any substantive sense; it is a third party capturing the exchange. But subdivision (1) applies only when the recording is made "without the consent of either a sender or receiver of the communication." When a participant (a receiver) deliberately invites the bot, that consent generally exists, so non-party status alone does not make the recording a felony. If a bot auto-joins a meeting its account holder does not attend, the account holder is not a party, so unless another participant consents, the recording can fall within Section 23A-35A-20(1). Two questions are undecided: whether participants who see a named bot or a recording notice and keep talking have impliedly consented (federal courts accept implied consent, as in Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990), but South Dakota courts have not ruled), and whether the user or the vendor is the one intentionally recording.

The second subdivision speaks of a person "present during a conversation or discussion" who uses an eavesdropping device without the consent of a party. AI bots that join virtual meetings as named attendees are arguably "present during" the conversation. Whether that places them inside or outside subdivision (2) depends on how the statute's "who is not" prefix is read, and no South Dakota court has decided the point. The first subdivision is the more predictable framework for a third-party bot, and under it the deciding question is whether a sender or receiver consented.

The Otter.ai Class Action

The In re Otter.AI Privacy Litigation proceeding (N.D. Cal., No. 5:25-cv-06911, filed August 15, 2025) alleges that Otter.ai's notetaker bot autonomously joins meetings, records conversations, and transmits audio to Otter's servers without meaningful consent from non-user participants. In August 2026 the court let the core federal Wiretap Act, California privacy and Illinois biometric claims proceed past a motion to dismiss. On the federal claim, the court held at the pleading stage that using meeting audio without consent to train Otter's own AI models could be a tortious purpose that defeats the one-party consent exception, even if Otter counted as a party. The case is now in discovery, and no court has decided whether Otter actually broke the law. The surviving claims include the federal Wiretap Act claim under that purpose limit, a California wiretap claim and Illinois biometric privacy claims. South Dakota's statute has no purpose limit, so the federal claim is the part of the case most relevant here.

The Ambriz "Capability Test"

In Ambriz v. Google (N.D. Cal., Feb. 10, 2025), a federal judge refused to dismiss California wiretapping claims over Google's contact-center AI. On whether a software vendor is a "third party" eavesdropper under California Penal Code 631, the court noted that trial courts are split between requiring actual use of the recordings and asking only whether the vendor is capable of using them, and it applied the broader capability approach first used in Javier v. Assurance IQ (N.D. Cal. 2023). The ruling bound no other court, and in October 2026 the same judge dismissed the remaining plaintiffs' claims on consent and intent grounds (with leave to amend) and sent others to arbitration. Under South Dakota's Section 23A-35A-20(1), third-party status is not the deciding element in any event; the consent of a sender or receiver is.

Popular AI Meeting Tools and South Dakota Compliance

South Dakota's statute, with its focus on non-party eavesdropping, creates a straightforward compliance analysis for AI recording tools.

Otter.ai OtterPilot

Otter.ai's OtterPilot joins calls as a named bot, records audio, generates transcripts, and produces meeting summaries. Under South Dakota law, OtterPilot is not a sender or receiver of the communication. It is a third-party service that captures communication content through its own infrastructure. If no party to the communication has consented to Otter's recording, the conduct falls within the first prohibition of Section 23A-35A-20. When the host deliberately turns OtterPilot on, the host's consent generally takes the recording outside that prohibition under state law.

Fireflies.ai Fred

Fireflies.ai's "Fred" bot follows the same operational model: joining meetings as a visible attendee, recording audio, and processing it on external servers. The Cruz v. Fireflies.AI Corp. lawsuit (C.D. Ill., Dec. 2025) raised biometric data concerns, alleging that Fireflies captured voiceprint data without consent; the plaintiff voluntarily dismissed the case without prejudice in March 2026. South Dakota does not have a biometric privacy statute, but voiceprint collection could still implicate common law privacy protections.

Zoom AI Companion and Platform-Integrated Tools

Zoom's AI Companion operates within the Zoom platform rather than as a separate third-party service. Under South Dakota law, this integration matters because the AI processing occurs within the same platform participants are already using. Microsoft Teams Copilot and Google Gemini function similarly within their respective host platforms, reducing the non-party eavesdropper argument.

Penalties for Violations in South Dakota

South Dakota classifies eavesdropping violations as felonies, though the state's penalty scale is moderate compared to some jurisdictions.

Criminal Penalties

Under S.D. Codified Laws Section 23A-35A-20, violating the eavesdropping prohibition is a Class 5 felony. South Dakota's sentencing framework under Section 22-6-1 sets the maximum penalty for a Class 5 felony at 5 years imprisonment in a state correctional facility. A fine of up to $10,000 may also be imposed.

The felony classification applies to anyone who intentionally uses an eavesdropping device to overhear or record a communication or conversation without the required consent, and to anyone who aids, authorizes, employs, procures, or permits another to do so.

Federal Criminal and Civil Exposure

Violations that also implicate 18 U.S.C. Section 2511 carry federal penalties of up to 5 years in prison. Under 18 U.S.C. Section 2520, a court may award the greater of actual damages (plus any profits the violator made) or statutory damages of $100 per day of violation or $10,000, whichever is greater, and may also award attorney fees and costs.

Employer and Workplace Considerations

South Dakota employers deploying AI meeting recording tools face compliance obligations under both state and federal law.

Employer Recording Authority

Under South Dakota's one-party consent framework, an employer who participates in a meeting can record it without informing other participants. A manager on a team call could lawfully use a personal recording device. A third-party AI service the manager deliberately activates generally records with that consent too; the non-party concern arises mainly when a bot auto-joins a meeting with no consenting participant present.

No State Privacy Statute

South Dakota has not enacted a comprehensive consumer data privacy law. This distinguishes the state from a growing number of jurisdictions that impose additional data processing requirements on businesses. The absence of a state privacy statute means that AI meeting recording vendors operating in South Dakota face fewer state-level regulatory obligations beyond the wiretapping statute itself.

Workplace Policy Requirements

Effective South Dakota workplace AI recording policies should specify approved AI tools, require advance notice to meeting participants, define data retention and access controls, establish opt-out procedures, and address multi-state compliance for calls involving participants in two-party consent states.

South Dakota's AI Legislative Activity

South Dakota's legislature has addressed AI through targeted measures, though none directly regulates AI meeting recording.

Deepfake Election Protections

SB 164, signed by the Governor on March 25, 2025, bars distributing a deepfake of a candidate with intent to injure the candidate within 90 days of an election unless it carries the required disclosure; satire, parody and qualifying news coverage are exempt. The law shows South Dakota's willingness to penalize specific AI-generated content, though it does not address AI meeting recording.

State Government AI Guidance

The South Dakota Bureau of Information and Telecommunications has published AI guidance standards for state government agencies. These standards address responsible AI use within government operations but do not impose requirements on private-sector AI meeting recording.

Practical Compliance Steps for South Dakota Users

Before the meeting: Notify all participants in writing (via calendar invitation or email) that AI recording and transcription will be used. Identify the specific AI tool by name.

At the meeting start: Announce that AI recording is active and provide a brief opportunity for objections. Most platforms display a visual recording indicator; supplement this with a verbal statement.

During the meeting: Honor opt-out requests promptly. Pause or disable the AI recorder for participants who object. Document the opt-out for compliance records.

After the meeting: Store recordings securely with appropriate access controls. Follow your data retention policy for deletion timelines. Restrict transcript access to authorized personnel.

For multi-state calls: Default to all-party consent when participants are in different states. Courts have not settled which state's law governs a cross-border call, so South Dakota's one-party rule may not protect a recording of a participant in an all-party consent state such as Illinois, California, or Washington.

Related South Dakota Recording Guides

• South Dakota Recording Laws: Complete guide to South Dakota's recording consent framework
• South Dakota Phone Call Recording Laws: Rules for recording phone calls in South Dakota

Consult an attorney for advice specific to your situation. This article provides general legal information about South Dakota's recording laws as they apply to AI meeting tools, not legal advice. Laws and their interpretations evolve; the information here was last reviewed in November 2026.

More South Dakota Laws

• South Dakota Data Privacy Laws
• South Dakota Deepfake Laws
• South Dakota Employee Monitoring Laws
• South Dakota Recording Laws

Frequently Asked Questions

Is South Dakota a one-party or two-party consent state for recording?

South Dakota is a one-party consent state. S.D. Codified Laws Section 23A-35A-20 prohibits non-party eavesdropping without consent but does not restrict a party to a conversation from recording it. This means one participant can record a conversation without informing other participants.

Can AI meeting bots legally record my South Dakota meetings without everyone's consent?

Under Section 23A-35A-20(1), a person who is not a sender or receiver commits the felony only if the recording is made without the consent of either a sender or a receiver. So an AI service that a participant deliberately invites into a meeting generally records with that participant's consent. If a bot auto-joins a meeting its account holder does not attend, then unless another participant consents, the recording can fall within Section 23A-35A-20(1); whether participants who see a named bot and keep talking have impliedly consented, and whether the user or the vendor is the one recording, are undecided. Separately, the federal Wiretap Act withdraws one-party consent if the vendor records for a criminal or tortious purpose. No South Dakota court has ruled on this specific issue.

What are the penalties for illegal eavesdropping in South Dakota?

Under S.D. Codified Laws Section 23A-35A-20, illegal eavesdropping is a Class 5 felony carrying up to 5 years imprisonment and a fine of up to $10,000. Federal violations under 18 U.S.C. Section 2511 add up to 5 years imprisonment, and under 18 U.S.C. Section 2520 a court may award statutory damages of $100 per day of violation or $10,000, whichever is greater (or actual damages plus profits if larger), plus attorney fees.

Does my employer in South Dakota need to tell me about AI meeting recording?

Under South Dakota's one-party consent framework, an employer participating in a meeting can technically record without notice. A third-party AI service the employer deliberately activates generally records with that consent too; the non-party question arises mainly when a bot records a meeting with no consenting participant. Best practices call for clear workplace policies that disclose AI recording tools and give advance notice.

How does South Dakota law handle recordings when participants are in different states?

Courts have not settled which state's law governs when participants are in different states. Some courts apply the law of the place where the recording is made. In Kearney v. Salomon Smith Barney (2006), California's Supreme Court held that California's all-party rule governs a business's future recording of calls with California residents from another state, but it applied Georgia law to the past recordings and allowed no damages for them. When any participant is in an all-party consent state such as California, Illinois, or Washington, the safe practice is to get everyone's consent.