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South Dakota Recording Laws (2026): One-Party Consent Rules

Independently fact-checkedEditor-reviewedLaw current as of August 15, 2026By Recording Law Editorial TeamReviewed August 26, 202613 min read

Independently fact-checked against primary sources (last audited August 15, 2026). · Reviewed by the RecordingLaw editorial team. · Law checked current as of August 15, 2026. · 38 primary sources cited on this page. How we verify our legal content

South Dakota Recording Laws (2026): One-Party Consent Rules

South Dakota is a one-party consent state for recording. Under SDCL 23A-35A-20, any party to a conversation may record it without notifying the other participants. The South Dakota Supreme Court confirmed this rule in State v. Braddock, 452 N.W.2d 785 (S.D. 1990). Recording without consent is a Class 5 felony, and victims may pursue civil relief under federal law and common-law tort.

South Dakota recording law at a glance

QuestionAnswer
Consent ruleOne-party consent
Main statuteSDCL 23A-35A-20
When recording is illegalWhen done by someone not a party and without any party's consent
Criminal penaltyClass 5 felony: up to 5 years and $10,000 (SDCL 22-6-1(8))
Civil remedyNo state statutory cause; federal 18 U.S.C. 2520 + common-law invasion of privacy (Gantvoort)
Hidden camerasSDCL 22-21-1 (Class 1 misdemeanor); SDCL 22-21-4 for intimate/voyeuristic recording
Recording policeLegally permissible under state law; no clearly established federal First Amendment right in the 8th Circuit

For in-depth treatment of every context, see the South Dakota recording laws in depth section below.

Recording in-person conversations in South Dakota

SDCL 23A-35A-20 criminalizes interception only by someone who is not a sender, receiver, or person present at the conversation. The moment one party to the conversation consents (including the recorder themselves), the conduct falls entirely outside the prohibition. There is no notice requirement. If you are part of the conversation, you can record it.

The statute's structure is the inverse of most state wiretap laws. Instead of allowing recording as an exception to a general prohibition, it defines the criminal as an outsider who lacks any party's consent. The South Dakota Supreme Court made this explicit in State v. Braddock, 452 N.W.2d 785, 788 (S.D. 1990), holding that one-party consent removes the communication from the chapter's reach altogether.

For example, if you take a call with your landlord and record it, that is lawful: you are a party. If your neighbor places a listening device on your fence to capture your backyard conversations without your knowledge, that is a Class 5 felony: they are an outsider without any party's consent.

The federal Wiretap Act at 18 U.S.C. 2511(2)(d) sets the same one-party floor for interstate communications, adding one explicit limit: one-party recording done for the purpose of committing a criminal or tortious act is not protected. South Dakota's statute does not repeat that caveat on its face, but the federal floor applies to any interstate wire or electronic communication.

South Dakota clip-on lavalier microphone attached to a jacket lapel in tight close-up, shallow focus

Recording phone calls in South Dakota

South Dakota's one-party rule extends to phone calls. SDCL 23A-35A-20 expressly covers wire and electronic communications, which the chapter's definitions reach across landline, cellular, VoIP, and the audio portion of video calls. A South Dakota party to a call may record without notice.

The cross-border rule matters most for South Dakota callers. When one party is in a stricter all-party consent state, courts and commentators apply the "stricter state governs" default. The all-party states include California, Florida, Illinois, Maryland, Massachusetts, New Hampshire, Pennsylvania, and Washington. Two more states need a hedge rather than a flat listing: Connecticut's criminal eavesdropping law is one-party consent, but a separate civil statute, C.G.S. 52-570d, exposes a recorder to civil liability for recording a phone call without all-party consent. Delaware is contested, with 11 Del. C. 2402(c)(4) permitting interception by a party or with one party's consent while 11 Del. C. 1335(a)(4) requires the consent of all parties, an unresolved tension in the code. If you are calling into any of those states, get explicit consent at the start of the call before recording.

Montana is the most relevant cross-border exception. Under MCA 45-8-213, Montana requires that all parties to a conversation know it is being recorded (MCA 45-8-213 frames the offense around recording without the knowledge of all parties, with narrow notice-based exceptions). A South Dakota resident calling into Montana should announce the recording at the start of the call.

For a full treatment of recording calls from South Dakota, see South Dakota Phone Call Recording Laws.

South Dakota desk phone handset lifted slightly off its cradle on an office desk with a coiled cord, warm lamp light

Hidden cameras, doorbells, and nanny cams

South Dakota's audio-side statute (SDCL 23A-35A-20) and its visual-privacy statute (SDCL 22-21-1) operate independently. A hidden camera that captures audio can trigger both.

SDCL 22-21-1 prohibits two things, both Class 1 misdemeanors. First, trespassing on property with intent to eavesdrop on or surveil someone in a private place. Second, installing or using any unauthorized observing, photographing, recording, amplifying, or broadcasting device in a private place without the consent of persons entitled to privacy there. Installation alone is sufficient: a camera placed in a guest bathroom violates the section even if it never records anyone.

For voyeuristic recording, SDCL 22-21-4 applies. Subdivision (1) covers intentionally using a device to photograph or visually record someone without clothing, under or through clothing, or with a third individual in a sexual act; subdivision (2) covers disclosing, disseminating, distributing, or selling that material. Both reach the conduct only when it is done without the consent or knowledge of the individual depicted and with the intent to self-gratify or to alarm, annoy, embarrass, harass, invade the privacy of, threaten, or cause emotional, financial, physical, psychological, or reputational harm to that individual. The section carries no reasonable-expectation-of-privacy element; that specific intent is what limits its reach, so a recording made without it falls outside 22-21-4. A violation of subdivision (1) or (2) is a Class 1 misdemeanor (up to 1 year, $2,000), rising to a Class 6 felony (up to 2 years, $4,000) on a subsequent violation of those subdivisions or where the victim is 17 or younger and the perpetrator is at least 21 when the photograph or recording is made. Subdivision (3) (digitally fabricated material depicting an identifiable individual in a state of nudity or engaged in sexual conduct) carries no such tiering: it is a flat Class 5 felony (up to 5 years, $10,000), added by SB 41 (2026) and effective July 1, 2026, with no age qualifier in the statutory text (see Special Topics below).

A Ring doorbell aimed at a public-facing porch or driveway is generally lawful. The homeowner is a party to any visitor-directed conversation (one-party rule), and no private place is captured. A camera that sweeps a neighbor's fenced backyard, bathroom window, or other reasonable-expectation-of-privacy area can trigger SDCL 22-21-1 liability. South Dakota also has a dedicated drone-recording statute. SDCL 50-15-5 makes it a Class 1 misdemeanor to intentionally use a drone, except as authorized by law, to photograph, record, or otherwise observe another person in a private place where that person has a reasonable expectation of privacy. It does not apply to law enforcement officers acting in their lawful duties, to a bona fide business or government drone operator who unintentionally or incidentally captures someone in a private place, or to a designated emergency management worker acting within the scope of their duties. SDCL 50-15-5.1 separately makes it a Class 1 misdemeanor to operate a drone for voyeuristic or harassment purposes. FAA Part 107 governs the airspace side.

For more, see South Dakota Security Camera Laws and South Dakota Voyeurism Laws.

South Dakota dome security camera in the corner of an office ceiling, soft interior daylight

Penalties for illegal recording in South Dakota

A violation of SDCL 23A-35A-20 is a Class 5 felony. Under SDCL 22-6-1(8), this means up to 5 years imprisonment in a state correctional facility and a fine of up to $10,000. The court may impose imprisonment, the fine, or both. Many older secondary sources graded this offense at Class 6 (2 years, $4,000); that grading is wrong. The criminal statute of limitations is 7 years under SDCL 23A-42-2.

OffenseStatuteClassMax penalty
Interception without consent (audio/wire)SDCL 23A-35A-20Class 5 felony5 years, $10,000
Trespass-to-eavesdrop or unauthorized deviceSDCL 22-21-1Class 1 misdemeanor1 year, $2,000
Window-peekingSDCL 22-21-3Class 1 misdemeanor1 year, $2,000
Voyeuristic recording or distributionSDCL 22-21-4(1)-(2)Class 1 misdemeanor1 year, $2,000
Voyeuristic recording or distribution, subsequent violation of subdivision (1) or (2)SDCL 22-21-4(1)-(2)Class 6 felony2 years, $4,000
Voyeuristic recording or distribution, victim 17 or younger, perpetrator 21+SDCL 22-21-4(1)-(2)Class 6 felony2 years, $4,000
Digitally fabricated intimate material, any identifiable individual (no tiering)SDCL 22-21-4(3) (added by SB 41, effective July 1, 2026)Class 5 felony5 years, $10,000
Drone used to observe a person in a private placeSDCL 50-15-5Class 1 misdemeanor1 year, $2,000
Drone operated for voyeuristic or harassment purposesSDCL 50-15-5.1Class 1 misdemeanor1 year, $2,000
Political deepfake within 90 days of electionSB 164 (2025)Class 1 misdemeanor1 year, $2,000

On the civil side, South Dakota has no state statutory civil cause of action under Chapter 23A-35A. SDCL 23A-35A-25 is a pen-register "Contents of application" section, not a civil-recovery section. Victims pursue two paths: (1) common-law invasion of privacy (intrusion upon seclusion) as confirmed by the South Dakota Supreme Court in Gantvoort v. Ranschau, 2022 S.D. 22, and (2) the federal civil cause under 18 U.S.C. 2520, which provides actual damages or statutory damages of the greater of $100 per day or $10,000, punitive damages in appropriate cases, and reasonable attorney fees. The civil statute of limitations is 3 years for the common-law claim under SDCL 15-2-14 and 2 years for the federal claim under 18 U.S.C. 2520(e).

Gantvoort extended civil liability beyond the recorder to third parties who knowingly assist in further processing unlawfully obtained recordings. An attorney or paralegal who receives a clearly unlawful recording from a divorce client and downloads it to process for litigation may face aiding-and-abetting liability for invasion of privacy. For drone-based intrusions the legislature preserved that theory expressly: SDCL 50-15-9 provides that a drone may be the instrumentality by which a tort in violation of privacy rights or trespass laws is committed under federal or state law.

South Dakota has no statute governing the disclosure or publication of a recording once it exists. SDCL 23A-35A-20 criminalizes only the overhearing or recording itself; unlike Alabama (Ala. Code 13A-11-35) or North Dakota (N.D. Cent. Code 12.1-15-02(1)(b)), Chapter 23A-35A does not separately criminalize divulging or using an unlawfully obtained recording. An innocent recipient who played no part in an illegal interception, such as a journalist who receives a leaked recording, is also protected by the First Amendment: in Bartnicki v. Vopper, 532 U.S. 514 (2001), the U.S. Supreme Court held that publishing a lawfully obtained recording of an unlawfully intercepted communication on a matter of public concern cannot be punished under a state or federal wiretap statute, so long as the publisher did not participate in the interception.

South Dakota wooden gavel on a sound block on a judge's bench

Recording the police in South Dakota

Under South Dakota law, recording on-duty officers in public is lawful. SDCL 23A-35A-20 does not reach a recorder who is present at the scene: the recorder is a "person present" acting with at least their own one-party consent.

The federal civil-rights side is more complicated. South Dakota sits in the Eighth Circuit, which has NOT recognized a clearly established First Amendment right to record police. Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), established a right to passively observe police-citizen interactions from a distance, but expressly did not reach active recording. Robbins v. City of Des Moines, 984 F.3d 673 (8th Cir. 2021), and Molina v. Book, No. 21-1830 (8th Cir. Feb. 2, 2023) (cert. denied Feb. 20, 2024), both granted qualified immunity to officers on First Amendment retaliation claims for recording, declining to extend Chestnut to a recording right.

A South Dakota plaintiff alleging retaliation for recording police faces a qualified-immunity barrier that does not exist in the 1st, 3rd, 5th, 7th, 9th, 10th, or 11th Circuits. Framing the claim under Chestnut (passive observation, not active recording) gives a better path. Practical tips: stay back, do not interfere, do not touch or block officers, and do not refuse lawful orders even while recording.

For more, see South Dakota Laws on Recording Police.

Special topics in South Dakota

Workplace recording and NLRB Stericycle

South Dakota's one-party rule means an employee who is a party to a workplace conversation may record without notifying their employer or coworkers. The federal NLRB overlay applies to covered employers. Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023), remains controlling Board precedent: a blanket no-recording policy that would reasonably chill Section 7 activity (documenting unsafe conditions, gathering wage-and-hour evidence, union organizing) is presumptively unlawful. NLRB GC 25-05 (Feb. 14, 2025) was a housekeeping rescission of 29 prior GC memos and did NOT reinstate Boeing or overrule Stericycle. NLRB GC 25-07 (June 25, 2025) treats surreptitious recording of collective-bargaining negotiation sessions as a per se Section 8 violation, but is narrowly scoped to formal CBA sessions only. South Dakota is a right-to-work state under SD Constitution art. VI, sec. 2.

For detail, see South Dakota Workplace Recording Laws.

Body-worn cameras and open records

South Dakota has no dedicated body-worn camera statute and no SDCL 23-3-45.1. Access to body-cam and dash-cam footage is governed only by the general law-enforcement records exemption at SDCL 1-27-1.5(5), which exempts records from active law-enforcement investigations. The 2020 BWC bill failed; no replacement has passed through the 101st Legislative Assembly. The South Dakota Highway Patrol operates both in-car video and body cameras under departmental policy, with no statewide retention floor, activation mandate, or release framework. Public FOIA-style requests for footage are routinely denied; release happens through discovery in prosecutions.

AI deepfakes and NCII

South Dakota has two active deepfake statutes. SB 164 (2025), signed March 25, 2025, bars dissemination of unlabeled AI-generated political content within 90 days of an election with intent to harm a candidate (Class 1 misdemeanor; exempts broadcasters, satire, parody). SB 41 (2026), signed March 17, 2026, amends SDCL 22-21-4 to add a Class 5 felony (up to 5 years and $10,000 under SDCL 22-6-1(8)) for the creation, possession, or sharing of computer-generated deepfake intimate images depicting an identifiable individual under subdivision (3); the statutory text carries no age qualifier. Effective July 1, 2026. The federal TAKE IT DOWN Act, Pub. L. 119-12 (signed May 19, 2025), adds federal criminal exposure for NCII deepfakes immediately on enactment, with covered-platform 48-hour notice-and-removal obligations effective May 19, 2026.

Federal overlay: ECPA, FCC, and TCPA

The federal Wiretap Act at 18 U.S.C. 2511 is the floor that South Dakota's one-party rule mirrors. On the TCPA side: FCC 23-107's one-to-one consent rule was vacated by the Eleventh Circuit in Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277 (Jan. 24, 2025, mandate Apr. 30, 2025). FCC 24-24 (consent-revocation framework, consumers may revoke by any reasonable means, honored within 10 business days) was NOT vacated and remains in force. FCC 24-17 (AI-generated voices fall within the TCPA's "artificial or prerecorded voice" restriction) also remains in force. The old 47 C.F.R. 64.501 "beep tone" rule was removed in 2017 by FCC 17-95 and is not live federal law.

  • SB 41 (2026): Signed March 17, 2026 by Governor Rhoden; adds Class 5 felony to SDCL 22-21-4 subdivision (3) for AI-generated fabricated intimate material depicting any identifiable individual, with no age qualifier in the statutory text (up to 5 years and $10,000); effective July 1, 2026.
  • SB 164 (2025): Signed March 25, 2025 by Governor Rhoden; political AI deepfake disclosure requirement within 90 days of election; Class 1 misdemeanor; in force.
  • TAKE IT DOWN Act (May 2025): Federal criminal coverage for NCII deepfakes live since May 19, 2025; platform takedown obligations live since May 19, 2026.
  • FCC 23-107 vacated (Jan. 2025): One-to-one TCPA consent rule eliminated; FCC 24-24 consent-revocation framework remains.
  • NLRB GC 25-07 (June 2025): Surreptitious bargaining-session recording treated as per se unfair labor practice; narrowly scoped.
  • No BWC bill: The 2020 body-worn camera bill failed; no replacement enacted through the 101st Assembly.

South Dakota recording laws in depth

By type of recording

By place or relationship

More South Dakota laws

This article is general legal information, not legal advice. Recording laws change and apply differently to each situation. For advice about your situation, consult a licensed South Dakota attorney.

More South Dakota Laws

Frequently Asked Questions

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

South Dakota is a one-party consent state under SDCL 23A-35A-20. Any sender, receiver, or person present during a conversation may record it without notifying the other parties. The South Dakota Supreme Court confirmed this rule in State v. Braddock, 452 N.W.2d 785 (S.D. 1990). South Dakota does not require all-party consent.

Is illegal recording a felony in South Dakota?

Yes. Recording without consent under SDCL 23A-35A-20 is a Class 5 felony, punishable by up to 5 years imprisonment in a state correctional facility and a $10,000 fine under SDCL 22-6-1(8). Older guides that list a 2-year Class 6 penalty are incorrect. The criminal statute of limitations is 7 years under SDCL 23A-42-2.

Can I record a phone call in South Dakota without telling the other person?

Yes, if you are a party to the call. South Dakota's one-party rule under SDCL 23A-35A-20 covers phone calls. The exception is cross-border calls: if the other party is in an all-party consent state (California, Florida, Illinois, Maryland, Massachusetts, New Hampshire, Pennsylvania, Washington, or Montana for electronic communications), or in Connecticut (one-party criminally, but civil liability for phone recording without all-party consent under C.G.S. 52-570d) or Delaware (contested, between a one-party interception provision and an all-party privacy provision), the stricter rule applies and you should announce the recording.

Can I sue someone for recording me illegally in South Dakota?

South Dakota has no state statutory civil cause of action under Chapter 23A-35A. You have two civil paths: a common-law invasion-of-privacy claim as recognized in Gantvoort v. Ranschau, 2022 S.D. 22, and a federal claim under 18 U.S.C. 2520 (statutory damages of $100 per day or $10,000, plus punitive damages and attorney fees, with a 2-year limitations period). Both paths can be pursued together.

Can I publish or share a recording I legally made in South Dakota?

Yes. SDCL 23A-35A-20 criminalizes only the act of overhearing or recording without consent; it does not separately restrict disclosing or publishing a recording you lawfully made as a party or with a party's consent. Even someone who innocently receives an illegally recorded conversation, such as a journalist, is generally protected by the First Amendment from wiretap liability for publishing it if the recording concerns a matter of public concern, under Bartnicki v. Vopper, 532 U.S. 514 (2001).

Is a Ring doorbell or home security camera legal in South Dakota?

Generally yes, for cameras aimed at public-facing areas like a porch or driveway. For the audio side, the homeowner is a party to visitor-directed conversations and the one-party rule applies. For the visual side, SDCL 22-21-1 bars cameras pointed into private places: a camera that captures a neighbor's bathroom window or fenced backyard can trigger Class 1 misdemeanor liability. Cameras in your own bathroom or bedroom require the consent of anyone using those spaces.

Can I record police in South Dakota?

Under state law, yes: SDCL 23A-35A-20 does not reach a recorder who is present at the scene. The federal civil-rights side is harder. The Eighth Circuit has not established a clearly recognized First Amendment right to record police. Chestnut v. Wallace (8th Cir. 2020) covers passive observation only; Robbins (2021) and Molina (2023, cert. denied 2024) both declined to extend that right to active recording. A South Dakota plaintiff alleging retaliation for recording police faces a substantial qualified-immunity barrier.

Can my employer ban me from recording in the workplace?

An employer can have a no-recording policy and enforce it through discipline or termination under South Dakota at-will employment rules. But under NLRB Stericycle (2023), a blanket no-recording policy that chills Section 7 activity (documenting safety violations, organizing, gathering wage evidence) is presumptively unlawful for covered employers. NLRB GC 25-05 (Feb. 2025) did not reinstate the old Boeing standard. Narrowly drawn policies tied to legitimate interests such as HIPAA or trade secrets are more defensible.

Does South Dakota have a deepfake law?

Yes, two. SB 164 (2025), signed March 25, 2025, bars unlabeled AI political deepfakes within 90 days of a South Dakota election (Class 1 misdemeanor; media and parody are exempt). SB 41 (2026), signed March 17, 2026, adds a Class 5 felony to SDCL 22-21-4 subdivision (3) for AI-generated fabricated intimate material depicting any identifiable individual, with no age qualifier in the statutory text (up to 5 years and $10,000), effective July 1, 2026. The federal TAKE IT DOWN Act also provides criminal coverage for NCII deepfakes and platform takedown obligations.

Updates

Corrected the drone and voyeurism sections: South Dakota does have a dedicated drone-recording statute (SDCL 50-15-5, alongside 50-15-5.1 and the drone tort provision at 50-15-9), and SDCL 22-21-4 is now stated with its actual elements, including the specific-intent requirement and the fact that its Class 6 felony escalations reach only subdivisions (1) and (2).

Corrected the description of South Dakota's new AI deepfake felony (SDCL 22-21-4(3), added by SB 41) to remove an invented adults-only limitation that the statute's text does not contain, hedged the interstate phone-call consent list to reflect that Connecticut's all-party rule is civil-only (its criminal law is one-party) and Delaware's rule is legally contested, and added the repeat-offense Class 6 felony enhancement for voyeuristic recording that the page had omitted.

Independently fact-checked against the cited primary sources; governing law re-checked for recent changes

Governing law re-checked for recent changes

Governing law re-checked for recent changes

Reviewed and approved by an editor

Restructured page for readability: added AEO lede, at-a-glance table, organized body into canonical sections (in-person, phone, hidden cameras, penalties, police, special topics), condensed SDCL statute deep-dives and federal overlay into tight special-topics subsections, added in-depth sub-page index. All statutes and cases preserved. No substantive fact changes: Class 5 felony grading for SDCL 23A-35A-20 confirmed, SB 41 (2026) deepfake felony confirmed (effective July 1, 2026), SB 164 (2025) political deepfake confirmed, Gantvoort civil pathway confirmed, Eighth Circuit police-recording qualified-immunity gap (Chestnut/Robbins/Molina) confirmed, FCC 23-107 vacatur confirmed, FCC 24-24 survival confirmed, Stericycle still controlling confirmed, no BWC statute confirmed.

Refreshed for 2026. Corrected the SDCL 23A-35A-20 grading to a Class 5 felony (5 years imprisonment and a fine of up to $10,000 under SDCL 22-6-1(7)); the prior Class 6 framing was wrong. Anchored the consent framework on the foundational decision in State v. Braddock, 452 N.W.2d 785 (S.D. 1990), which holds that one-party consent removes a communication from the interception prohibition. Surfaced the load-bearing differentiator that South Dakota has NO state-law statutory civil cause of action under SDCL Chapter 23A-35A; SDCL 23A-35A-25 is the pen-register and trap-and-trace 'Contents of application' section, not a civil-recovery section. The civil pathway is common-law invasion of privacy via Gantvoort v. Ranschau, 2022 S.D. 22, plus federal 18 U.S.C. 2520. Removed any active citation to SDCL 22-21-2, which was repealed by SL 1976, ch 158, section 21-3 and is not active law. Removed any reference to SDCL 23-3-45.1 (does not exist on sdlegislature.gov) and any inherited 'South Dakota body-worn camera statute' framing; access to body-cam and dash-cam footage is governed only by the general law-enforcement records exemption at SDCL 1-27-1.5(5). Dropped the unverified State v. Krebs, State v. Sanchez, and State v. McKnight references that prior copies of this article carried. Added Senate Bill 164 (2025), signed by Governor Larry Rhoden on March 25, 2025, prohibiting unlabeled political AI deepfakes within 90 days of a South Dakota election with intent to harm a candidate (Class 1 misdemeanor). Added Senate Bill 41 (2026), signed by Governor Larry Rhoden on March 17, 2026 and effective July 1, 2026, amending SDCL 22-21-4 to add a Class 6 felony tier for AI-generated NCII deepfakes of non-consenting adults. Reframed the Eighth Circuit record-the-police trio: Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), clearly established the right of passive observation only; Robbins v. City of Des Moines, 984 F.3d 673 (8th Cir. 2021), and Molina v. Book, No. 21-1830 (8th Cir. 2023, cert. denied Feb. 20, 2024), both expressly declined to extend Chestnut to a clearly-established right to record police. South Dakota plaintiffs alleging First Amendment retaliation for recording police face a qualified-immunity barrier that does not exist in the 1st, 3rd, 5th, 7th, 9th, 10th, or 11th Circuits. Corrected the federal TCPA overlay: FCC 23-107 (one-to-one consent rule) was VACATED by the 11th Circuit in Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277 (Jan. 24, 2025, mandate Apr. 30, 2025); FCC 24-24 (consent-revocation rules) was NOT vacated and REMAINS IN FORCE, with one subsection partially delayed to April 11, 2026. Reframed NLRB GC 25-05 (Feb. 14, 2025) as a housekeeping rescission of 29 prior General Counsel memoranda, NOT a Boeing reinstatement; Stericycle, 372 NLRB No. 113 (Aug. 2, 2023), remains binding Board precedent. Added NLRB GC 25-07 (June 26, 2025) narrowly scoped to surreptitious recording of collective-bargaining sessions as a per se Section 8(a)(5) or 8(b)(3) violation; it does not reach general workplace audio. Updated federal overlay to include 47 C.F.R. 64.501 (REMOVED effective Nov. 20, 2017 by FCC 17-95) and the TAKE IT DOWN Act, Pub. L. 119-12 (signed May 19, 2025; covered-platform 48-hour notice-and-removal duty effective May 19, 2026). Replaced commercial-codifier URLs with sdlegislature.gov, ujs.sd.gov, ecf.ca8.uscourts.gov, media.ca11.uscourts.gov, uscode.house.gov, fcc.gov, docs.fcc.gov, congress.gov, nlrb.gov, federalregister.gov, atg.sd.gov, puc.sd.gov, dps.sd.gov, and justice.gov primaries.

Refreshed for 2026. Corrected the SDCL 23A-35A-20 grading to a Class 5 felony (5 years imprisonment and a fine of up to $10,000 under SDCL 22-6-1(8)); the prior Class 6 framing was wrong. Anchored the consent framework on the foundational decision in State v. Braddock, 452 N.W.2d 785 (S.D. 1990), which holds that one-party consent removes a communication from the interception prohibition. Surfaced the load-bearing differentiator that South Dakota has NO state-law statutory civil cause of action under SDCL Chapter 23A-35A; SDCL 23A-35A-25 is the pen-register and trap-and-trace 'Contents of application' section, not a civil-recovery section. The civil pathway is common-law invasion of privacy via Gantvoort v. Ranschau, 2022 S.D. 22, plus federal 18 U.S.C. 2520. Removed any active citation to SDCL 22-21-2, which was repealed by SL 1976, ch 158, section 21-3 and is not active law. Removed any reference to SDCL 23-3-45.1 (does not exist on sdlegislature.gov) and any inherited 'South Dakota body-worn camera statute' framing; access to body-cam and dash-cam footage is governed only by the general law-enforcement records exemption at SDCL 1-27-1.5(5). Dropped the unverified State v. Krebs, State v. Sanchez, and State v. McKnight references that prior copies of this article carried. Added Senate Bill 164 (2025), signed by Governor Larry Rhoden on March 25, 2025, prohibiting unlabeled political AI deepfakes within 90 days of a South Dakota election with intent to harm a candidate (Class 1 misdemeanor). Added Senate Bill 41 (2026), signed by Governor Larry Rhoden on March 16, 2026 and effective July 1, 2026, amending SDCL 22-21-4 to add a Class 5 felony tier for AI-generated NCII deepfakes, with no age qualifier in the statute. Reframed the Eighth Circuit record-the-police trio: Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), clearly established the right of passive observation only; Robbins v. City of Des Moines, 984 F.3d 673 (8th Cir. 2021), and Molina v. Book, No. 21-1830 (8th Cir. 2023, cert. denied Feb. 20, 2024), both expressly declined to extend Chestnut to a clearly-established right to record police. South Dakota plaintiffs alleging First Amendment retaliation for recording police face a qualified-immunity barrier that does not exist in the 1st, 3rd, 5th, 7th, 9th, 10th, or 11th Circuits. Corrected the federal TCPA overlay: FCC 23-107 (one-to-one consent rule) was VACATED by the 11th Circuit in Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277 (Jan. 24, 2025, mandate Apr. 30, 2025); FCC 24-24 (consent-revocation rules) was NOT vacated and REMAINS IN FORCE, with one subsection partially delayed to April 11, 2026. Reframed NLRB GC 25-05 (Feb. 14, 2025) as a housekeeping rescission of 29 prior General Counsel memoranda, NOT a Boeing reinstatement; Stericycle, 372 NLRB No. 113 (Aug. 2, 2023), remains binding Board precedent. Added NLRB GC 25-07 (June 25, 2025) narrowly scoped to surreptitious recording of collective-bargaining sessions as a per se Section 8(a)(5) or 8(b)(3) violation; it does not reach general workplace audio. Updated federal overlay to include 47 C.F.R. 64.501 (REMOVED effective Nov. 20, 2017 by FCC 17-95) and the TAKE IT DOWN Act, Pub. L. 119-12 (signed May 19, 2025; covered-platform 48-hour notice-and-removal duty effective May 19, 2026). Replaced commercial-codifier URLs with sdlegislature.gov, ujs.sd.gov, ecf.ca8.uscourts.gov, media.ca11.uscourts.gov, uscode.house.gov, fcc.gov, docs.fcc.gov, congress.gov, nlrb.gov, federalregister.gov, atg.sd.gov, puc.sd.gov, dps.sd.gov, and justice.gov primaries.

Added wearable recording devices section and 2 new FAQs about AI voice recorders and smart glasses

Sources and References

  1. SDCL 23A-35A-20 (Overhearing or recording communications by eavesdropping device as Class 5 felony; senders, receivers, persons present, and actors with one-party consent are outside the prohibition)(sdlegislature.gov).gov
  2. SDCL 23A-35A-1 (Definition of eavesdropping device; excludes common-carrier equipment, law-enforcement equipment in ordinary course, and hearing aids)(sdlegislature.gov).gov
  3. SDCL 23A-35A-21 (Six categorical exemptions from Chapter 23A-35A; private one-party consent is built into 23A-35A-20 itself)(sdlegislature.gov).gov
  4. SDCL Chapter 23A-35A (Interception of Wire, Electronic, or Oral Communications; 34 sections; no statutory civil cause of action; 23A-35A-25 is 'Contents of application' for pen registers)(sdlegislature.gov).gov
  5. SDCL 22-6-1 (Felony penalty schedule; (8) Class 5 felony: 5 years and $10,000; (9) Class 6 felony: 2 years and $4,000)(sdlegislature.gov).gov
  6. SDCL 22-6-2(1) (Class 1 misdemeanor: up to 1 year in county jail and $2,000 fine)(sdlegislature.gov).gov
  7. SDCL 22-21-1 (Trespass-to-eavesdrop and installation of unauthorized recording devices in private places; Class 1 misdemeanor; law-enforcement exemption)(sdlegislature.gov).gov
  8. SDCL 22-21-3 (Window-peeking on private property; Class 1 misdemeanor)(sdlegislature.gov).gov
  9. SDCL 22-21-4 (Voyeuristic recording and manipulated-image statute; Class 1 misdemeanor for subdivisions (1)-(2); Class 6 felony for repeat violations of (1)-(2), and separately for victim 17 or younger and perpetrator 21+; amended by SB 41 (2026) to add Class 5 felony for subdivision (3) AI-generated fabricated intimate material depicting any identifiable individual, with no age qualifier in the statutory text, effective July 1, 2026)(sdlegislature.gov).gov
  10. SDCL 23A-42-2 (7-year catch-all criminal statute of limitations; applies to Class 5 felony interception under SDCL 23A-35A-20)(sdlegislature.gov).gov
  11. SDCL 15-2-14 (3-year personal-injury civil limitations period; applies to common-law invasion-of-privacy claims based on unlawful recording)(sdlegislature.gov).gov
  12. SDCL 1-27-1.5(5) (General law-enforcement records exemption; governs access to body-cam and dash-cam footage absent a dedicated BWC statute)(sdlegislature.gov).gov
  13. SDCL Chapter 37-30A (South Dakota Do Not Call List; administered by the Public Utilities Commission)(sdlegislature.gov).gov
  14. South Dakota Constitution art. VI, sec. 2 (right-to-work provision; relevant to NLRA workplace-recording overlay)(sdlegislature.gov).gov
  15. Senate Bill 164 (2025, 100th Legislative Assembly; signed March 25, 2025 by Governor Larry Rhoden; political AI deepfake disclosure within 90 days of election; Class 1 misdemeanor; broadcaster, satire, parody exempt)(sdlegislature.gov).gov
  16. Gantvoort v. Ranschau, 2022 S.D. 22 (Apr. 6, 2022) (Common-law invasion of privacy available for unlawful recording; aiding-and-abetting liability extends to attorneys and third parties who knowingly process unlawful recordings)(ujs.sd.gov).gov
  17. State v. Braddock, 452 N.W.2d 785 (S.D. 1990) (Foundational decision: one-party consent removes a communication from the SDCL Chapter 23A-35A interception prohibition)(ujs.sd.gov).gov
  18. 18 U.S.C. 2511 (Federal Wiretap Act criminal prohibition; section 2511(2)(d) civilian one-party consent floor; congruent with SDCL 23A-35A-20)(uscode.house.gov).gov
  19. 18 U.S.C. 2520 (Federal civil cause of action; actual damages or $100/day or $10,000 statutory damages; punitive damages; attorney fees; 2-year limitations period; primary civil hook for SD plaintiffs absent a state civil cause)(uscode.house.gov).gov
  20. Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. Jan. 21, 2020) (Clearly established First Amendment right to passive observation of police-citizen interactions; did NOT clearly establish a right to record)(ecf.ca8.uscourts.gov).gov
  21. Robbins v. City of Des Moines, 984 F.3d 673 (8th Cir. Jan. 5, 2021) (Qualified immunity on First Amendment retaliation claim for recording; right to record assumed but not clearly established in the Eighth Circuit)(ecf.ca8.uscourts.gov).gov
  22. Molina v. Book, No. 21-1830 (8th Cir. Feb. 2, 2023, cert. denied Feb. 20, 2024) (Qualified immunity; not clearly established that people have a constitutional right to unobtrusively observe and record police in public)(ecf.ca8.uscourts.gov).gov
  23. Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277 (11th Cir. Jan. 24, 2025, mandate Apr. 30, 2025) (Vacated FCC 23-107 one-to-one TCPA consent rule; FCC 24-24 consent-revocation framework not affected)(media.ca11.uscourts.gov).gov
  24. FCC 24-17 (Feb. 2, 2024; AI-generated voice calls fall within TCPA 'artificial or prerecorded voice' restriction; prior express consent required)(docs.fcc.gov).gov
  25. FCC 24-24 (Feb. 16, 2024; consumer revocation of TCPA consent by any reasonable means within 10 business days; NOT vacated by IMC v. FCC; remains in force)(docs.fcc.gov).gov
  26. 47 C.F.R. 64.501 (REMOVED effective Nov. 20, 2017 by FCC 17-95; former 'beep tone' obligation is obsolete)(federalregister.gov).gov
  27. Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023) (Controlling Board precedent; blanket no-recording rules presumptively unlawful if they chill Section 7 activity from the perspective of a reasonable economically-dependent employee)(nlrb.gov).gov
  28. NLRB GC 25-05 (Feb. 14, 2025; housekeeping rescission of 29 prior GC memos; did NOT reinstate Boeing or overrule Stericycle)(nlrb.gov).gov
  29. NLRB GC 25-07 (June 25, 2025; surreptitious recording of collective-bargaining sessions as per se Section 8 violation; narrowly scoped to formal CBA sessions only)(nlrb.gov).gov
  30. TAKE IT DOWN Act, Pub. L. 119-12 (signed May 19, 2025; federal criminal NCII coverage immediate; covered-platform 48-hour notice-and-removal effective May 19, 2026)(congress.gov).gov
  31. DOJ Justice Manual section 9-7.302 (Federal consensual monitoring approval requirements for sensitive-category subjects)(justice.gov).gov
  32. MCA 45-8-213 (Montana requires the knowledge of all parties to record a conversation, with narrow notice-based exceptions; controls cross-border calls from South Dakota into Montana)(leg.mt.gov).gov
  33. South Dakota Department of Public Safety, Highway Patrol (Operates in-car video and body cameras under departmental policy; no statewide BWC statute, retention floor, or release framework)(dps.sd.gov).gov
  34. South Dakota Public Utilities Commission (Administers the SD Do Not Call List; no rules specifically governing call recording)(puc.sd.gov).gov
  35. South Dakota Attorney General Marty Jackley (No published AG opinion directly interpreting SDCL 23A-35A-20)(atg.sd.gov).gov
  36. SDCL 50-15-5 (Eavesdropping--Violation of privacy--Misdemeanor: Class 1 misdemeanor to intentionally use a drone to photograph, record, or otherwise observe another person in a private place with a reasonable expectation of privacy; law enforcement, bona fide business or government, and emergency management exceptions)(sdlegislature.gov).gov
  37. SDCL 50-15-5.1 (Careless operation, voyeuristic or harassment purposes: Class 1 misdemeanor to operate a drone carelessly so as to endanger persons or property, or for voyeuristic or harassment purposes)(sdlegislature.gov).gov
  38. SDCL 50-15-9 (Liability for violating privacy or trespass laws: a drone may be the instrumentality by which a tort in violation of privacy rights or trespass laws may be committed under federal or state law)(sdlegislature.gov).gov
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