South Dakota Audio Recording Laws

South Dakota is a one-party consent state for audio recording under SDCL 23A-35A-20, meaning you can legally record any phone call or conversation you participate in without notifying the other parties.

South Dakota is a one-party consent state for audio recording. Under SDCL 23A-35A-20, you can legally record any phone call, in-person conversation, or electronic communication you participate in without notifying or getting permission from other participants. The law requires only that the person doing the recording is a party to the communication or that one party has given prior consent.

This guide covers everything you need to know about audio recording laws in South Dakota, including when you can record, what happens when you call someone in another state, the penalties for violations, and how recordings are treated as evidence.

How South Dakota's One-Party Consent Law Works

The Statutory Framework

South Dakota's audio recording rules are found in Chapter 23A-35A of the South Dakota Codified Laws, titled "Interception of Wire, Electronic, or Oral Communications." The key statute is SDCL 23A-35A-20.

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.

This statute is current through the 2025 South Dakota legislative session, with the 2026 session introducing new protections around deepfake images (SB 41) but no changes to the core audio recording consent provisions.

What "One-Party Consent" Means in Practice

One-party consent means that exactly one person involved in the communication must know about and agree to the recording. That person is typically you, the one pressing the record button. You do not need to announce "this call is being recorded." You do not need a verbal or written agreement from the other parties.

Here are common scenarios where one-party consent protects you:

• Recording a phone call you are on. Whether you use a landline, cell phone, or VoIP service like Zoom, Teams, or Google Meet, you can record the audio without telling the other person.
• Recording an in-person conversation you participate in. If you are having a face-to-face discussion, you can use your phone or a dedicated voice recorder to capture it.
• Authorizing someone else to record on your behalf. If you ask a friend to record a meeting you will attend, that recording is lawful because you, a party to the conversation, gave prior consent.

What One-Party Consent Does NOT Allow

The one-party consent exception has clear boundaries. You cannot:

• Record a conversation you are not part of and have no party's consent for. Placing a hidden recorder in a room to capture other people's private conversations without any participant's knowledge is illegal wiretapping.
• Intercept communications between two other people. Tapping a phone line or using software to capture someone else's calls without their knowledge violates the statute.
• Use an eavesdropping device to overhear jury deliberations. SDCL 23A-35A-20 specifically prohibits intercepting jury deliberations.

Types of Audio Communications Covered

Wire Communications

Wire communications include traditional telephone calls, cell phone calls, and any communication that travels over a wire, cable, or similar connection at some point during transmission. South Dakota's one-party consent rule under SDCL 23A-35A-20 covers all wire communications.

Oral Communications

Oral communications are face-to-face, spoken conversations where one or more parties have a reasonable expectation of privacy. Under SDCL 23A-35A-20, it is unlawful to intercept oral communications without the consent of at least one participant. If you are present and participating, your own consent satisfies the statute.

Conversations in public places where anyone could overhear them generally carry no expectation of privacy and may be recorded without any party's consent.

Electronic Communications

Electronic communications include text messages, emails, instant messages, and data transmissions. South Dakota's wiretapping statute covers the interception of electronic communications. The federal Electronic Communications Privacy Act (18 U.S.C. 2511) provides a parallel framework that also applies in South Dakota.

Recording Phone Calls in South Dakota

Personal Phone Calls

You can record any personal phone call you participate in under South Dakota's one-party consent rule. This applies to:

• Cell phone calls
• Landline calls
• VoIP calls through Zoom, Microsoft Teams, Google Meet, or similar platforms
• Video call audio (FaceTime, WhatsApp video, etc.)
• Calls made through messaging apps like Signal or Telegram

You do not need to play a beep tone, announce the recording, or get permission. Simply being a party to the call satisfies the consent requirement.

Business Phone Calls

South Dakota businesses can record calls for quality assurance, training, compliance, and dispute resolution. An employee who participates in the call provides the necessary one-party consent. Many businesses still announce recording as a best practice, using phrases like "This call may be recorded for quality assurance purposes."

Federal regulations under the Telephone Consumer Protection Act and FCC regulations also apply to business call recording, particularly for telemarketing calls and calls to consumers.

Interstate Phone Calls

When you are in South Dakota calling someone in another state, the recording laws of both states may apply. If the other person is in a two-party consent state, the stricter law typically controls.

States requiring all-party consent:

• California, Florida, Illinois, Maryland, Massachusetts, New Hampshire, Pennsylvania, and Washington
• Nevada, for phone calls specifically
• Montana, where MCA 45-8-213 requires that all parties know a conversation is being recorded, subject to narrow notice-based exceptions
• Connecticut's criminal eavesdropping law is one-party consent; all-party consent there is a civil-liability rule only, under C.G.S. 52-570d

South Dakota does not border any two-party consent states directly, but Montana is nearby. If you regularly record calls with people in two-party consent states, the safest approach is to inform all parties or get explicit consent before recording.

Recording In-Person Conversations

When Audio Recording Is Legal

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

• You are a direct participant in the conversation
• You are in a public place where no reasonable expectation of privacy exists
• One of the parties to the conversation has given you prior consent to record

Public spaces like sidewalks, parks, government buildings, retail stores, and restaurants generally carry no expectation of privacy for conversations held at normal volume.

When Audio Recording Is Illegal

Recording becomes illegal when:

• You are not a party to the conversation and have no participant's consent
• You are planting a hidden device and leaving the room to capture others' conversations
• You are intercepting jury deliberations
• You are using intercepted communications for blackmail or extortion

Recording in Your Own Home

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

• Plant a hidden recorder and leave it to capture conversations between guests you are not part of
• Record guests in areas where they have a reasonable expectation of privacy, such as bathrooms or guest bedrooms
• Record intimate activities without consent from all participants

Audio Recording and South Dakota's Hidden Camera Law

South Dakota's hidden camera statute SDCL 22-21-1 creates additional restrictions that affect audio recording. This law prohibits installing or using any device to observe, photograph, or record a person in a private place without their consent. Because many hidden cameras also capture audio, this statute effectively creates a dual layer of protection.

If you install a device that records both video and audio in a private place without consent, you could face charges under both SDCL 22-21-1 (Class 1 misdemeanor) and SDCL 23A-35A-20 (Class 5 felony) if you are not a party to any conversation recorded.

The use of drones with audio recording capability to capture conversations in private places is also covered by SDCL 22-21-1.

Penalties for Illegal Audio Recording in South Dakota

Criminal Penalties

Illegal interception of audio communications is a serious offense in South Dakota:

SDCL 23A-35A-20 criminalizes only the act of intercepting, overhearing, or recording a communication; South Dakota has no statute that separately criminalizes disclosing or using a recording once it exists. Class 5 felonies in South Dakota are serious criminal offenses. A conviction carries a permanent criminal record and potential collateral consequences including loss of professional licenses and firearm rights.

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 (see Gantvoort v. Ranschau, 2022 S.D. 22, decided April 6, 2022), intentional infliction of emotional distress, or other tort claims may be available depending on the circumstances. The federal Wiretap Act (18 U.S.C. 2520) also provides a civil remedy allowing recovery of actual damages, statutory damages of $10,000 per violation (whichever is greater), punitive damages, and attorney fees.

Using Audio Recordings as Evidence in South Dakota

Admissibility Standards

Recordings made lawfully under South Dakota's one-party consent law are generally admissible as evidence in both criminal and civil courts. The South Dakota Supreme Court has recognized that recordings made with one party's consent can be used in legal proceedings. See State v. Braddock, 452 N.W.2d 785 (S.D. 1990). Courts typically consider:

• Authentication: Can you prove the recording is genuine and unaltered?
• Relevance: Does the recording relate to an issue in the case?
• Hearsay rules: Some statements may be excluded under the South Dakota Rules of Evidence
• Prejudicial vs. probative value: Does the recording's value outweigh any unfair prejudice?

Best Practices for Preserving Audio Recordings

To maximize the evidentiary value of your audio recordings:

1. Use a reliable recording device or app. Smartphone voice memo apps and dedicated digital recorders both work well.
2. Do not edit the recording. Preserve the original file in its entirety.
3. Back up the recording immediately. Save copies to cloud storage and a separate device.
4. Note the date, time, location, and participants. Write this information down as soon as possible after recording.
5. Store the recording securely. Protect it from accidental deletion or unauthorized access.

Illegally Obtained Recordings

Recordings made in violation of South Dakota's wiretapping law are generally inadmissible in court. Using an illegally obtained recording can also expose you to criminal prosecution and civil liability, regardless of what the recording reveals.

Common Audio Recording Scenarios in South Dakota

Can I Record a Conversation With My Landlord?

Yes. If you are participating in a face-to-face or phone conversation with your landlord, South Dakota's one-party consent law permits you to record the audio. This is useful for documenting verbal agreements about repairs, disputes about lease terms, or instances of harassment.

Can I Record My Doctor?

Yes. As a participant in the conversation, you can audio record your medical appointment. Many patients find this helpful for remembering complex treatment instructions or documenting informed consent discussions.

Can I Record My Boss at Work?

Yes. Under one-party consent, you can record workplace conversations you participate in, including meetings with your supervisor, HR representatives, or coworkers. Be aware that employer policies may prohibit recording, and violating those policies could result in disciplinary action or termination even though the recording itself is legal.

Can I Record a Government Official?

Yes. You can audio record conversations with government employees you participate in. South Dakota's Open Meetings Law (SDCL 1-25) also permits recording of public government meetings. Under SDCL 1-25-11, no public body may prevent a person from recording a public meeting as long as the recording is reasonable, obvious, and not disruptive.

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, and do not use children to secretly record the other parent. South Dakota family courts will consider the circumstances under which recordings were made.

More South Dakota Recording Laws

Audio Recording | Video Recording | Voyeurism & Hidden Cameras | Workplace Recording | Recording Police | Phone Call Recording | Security Cameras | Recording in Public | Landlord-Tenant | Dashcam Laws | Schools | Medical Recording

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