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 statute's focus on non-party interception raises pointed questions about whether autonomous AI bots qualify as the type of third-party eavesdropper the law was written to address.

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

South Dakota's one-party consent framework aligns with the federal standard under 18 U.S.C. Section 2511. Recordings that satisfy South Dakota law generally comply with federal requirements. When a South Dakota participant records a call with someone in a two-party consent state like California or Illinois, the stricter state's law typically governs.

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. This language maps closely onto the operational model of third-party AI recording services.

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.

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, which turns on not being a sender or receiver, is the more predictable source of exposure for a third-party bot.

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. The complaint describes conduct that, under South Dakota's statute, would closely resemble non-party eavesdropping: a third-party entity using a device to record communications without consent from either a sender or receiver.

The Ambriz "Capability Test"

The Ambriz v. Google LLC decision (N.D. Cal. 2025) held that an AI system's technical capability to use recorded data for its own benefit (model training, product improvement) is sufficient to classify it as a third-party interceptor, regardless of whether the data was actually used that way. Under South Dakota's framework, this reasoning reinforces the argument that AI vendors with data-use capabilities are non-party eavesdroppers under Section 23A-35A-20.

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.

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, victims can recover the greater of actual damages (plus any profits the violator made) or statutory damages, whichever is greater between $100 per day of violation and $10,000, plus 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. Activating a third-party AI service that independently processes the recording raises the non-party eavesdropper concerns discussed above.

No State Privacy Statute

South Dakota has not enacted a comprehensive consumer data privacy law as of April 2026. 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 regulate AI meeting recording as of April 2026.

Deepfake Election Protections

SB 164, signed by the Governor on March 25, 2025, prohibits the use of deepfakes to influence elections. The law demonstrates South Dakota's willingness to apply criminal penalties to 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. South Dakota's one-party consent standard does not protect recordings involving participants in stricter jurisdictions like 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 is current as of April 2026.

More South Dakota Laws

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