Recording Law for Voiceprints & Biometric Data in North Dakota

North Dakota follows a one-party-consent rule for recording conversations, including in-person talks. That means you can record any conversation you’re part of without telling the other people. The rule comes from North Dakota’s wiretap statute, N.D. Cent. Code § 12.1-15-02(3)(c), which applies to both wire communications and oral communications under the one-party-consent defense. It says you can record if you’re a party to the conversation or have the consent of one party, as long as you’re not doing it to commit a crime or cause unlawful harm. There’s no extra step or notice required just because you plan to use the recording for a voiceprint feature like live.law’s system.

North Dakota has no state law that treats voiceprints or other biometric data like fingerprints or face scans as a special category that needs separate consent. The state does not have a law like Illinois’ BIPA or California’s CUBI that forces companies to get written permission before collecting or storing biometric data. The only biometric-related crime in the state is a fraud statute, N.D. Cent. Code § 12.1-23-11, which punishes using someone else’s biometric data to trick others into giving you money or benefits. That law doesn’t stop a company from recording its own users’ voiceprints with their participation. North Dakota also has no law requiring consent or notice for collecting or processing a voiceprint. So if your device captures your own voice to create a voiceprint for identification, North Dakota law doesn’t add any extra hoops to jump through.

North Dakota’s wiretap law only restricts recording if the speaker had a reasonable expectation that the conversation wouldn’t be overheard. That expectation is built into the definition of an "oral communication" in N.D. Cent. Code § 12.1-15-04(5): "'Oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." If someone is talking loudly on a public sidewalk or in a store aisle where others can easily hear them, they don’t have that expectation. But if they step into a quiet hallway or close a door, they might. The law doesn’t create a separate "public place" exception; it just looks at whether the speaker’s actions showed they expected privacy. If the speaker’s expectation isn’t justified by the circumstances, the conversation isn’t protected by the wiretap statute at all, and the one-party-consent rule doesn’t even come into play.

North Dakota sits in the Eighth Circuit, where federal courts have leaned toward protecting the right to record police in public. In Chestnut v. Wallace, No. 18-3472 (8th Cir. Jan. 21, 2020), 947 F.3d 1085, the Eighth Circuit held it was clearly established that a bystander has a right to "watch police-citizen interactions at a distance and without interfering," and it expressly noted "[e]very circuit court to have considered the question has held that a person has the right to record police activity in public," reasoning that if recording is protected, observing (a prerequisite to recording) must be too. But the Eighth Circuit has NOT issued a definitive published holding that there is a First Amendment right to record police. Earlier, some people pointed to Akins v. Knight, No. 16-3555 (8th Cir. 2017) (unpublished, summarily affirmed), as evidence the court rejected a right to record, but the case actually involved a person blocked from filming a private citizen in a police-station lobby—not an officer performing duties in public. So for now, recording on-duty police in open public spaces is very likely allowed, but it’s not a slam-dunk rule in North Dakota.

North Dakota’s wiretap statute only covers the "aural acquisition" of conversations, meaning it regulates audio recording only. The statute defines "intercept" as "the aural acquisition of the contents of any wire or oral communication" in N.D. Cent. Code § 12.1-15-04(4). Silent video with no audio is not covered by the wiretap law at all. The only other law that touches video recording is a narrow sexual-voyeurism statute, N.D. Cent. Code § 12.1-20-12.2, which applies only when someone secretly installs or uses a device to record sounds or events with sexual intent in places like homes, tanning booths, or hotel rooms. That law doesn’t apply to a wearable device capturing public disputes or police interactions.

Imagine you’re a security guard wearing a device that records audio and creates a voiceprint of your own voice for identification. You’re called to a back room where two employees are arguing loudly in an open area near customers. You record the conversation to document what happened. Because you’re part of the conversation and the speakers are talking in a place where others can easily hear them, North Dakota’s one-party-consent rule allows the recording. Since the state has no law requiring separate consent for voiceprints, you can store the voiceprint and use it later to verify your identity when accessing the system. The recording wouldn’t violate the wiretap statute because the speakers didn’t have a reasonable expectation their words wouldn’t be overheard.

North Dakota’s wiretap statute does not create a location-based carve-out for homes. The one-party-consent rule applies uniformly regardless of where the conversation occurs. The only limiting factor is whether the speaker exhibited a reasonable expectation the communication would not be intercepted, which is built into the definition of an "oral communication" in N.D. Cent. Code § 12.1-15-04(5). If someone invites you into their home and you record a conversation where they speak quietly or step into a private room, they have a reasonable expectation of privacy. If they’re talking loudly in the living room with the door open, that expectation may not exist. The one-party-consent rule still applies, but if the speaker’s expectation is justified by the circumstances, the recording could violate the statute.

North Dakota’s wiretap statute sets out two levels of penalties. Under N.D. Cent. Code § 12.1-15-02, intentionally intercepting a wire or oral communication is a Class C felony. Eavesdropping or loitering with the purpose of intercepting communications is a Class A misdemeanor. These penalties apply to both wire and oral communications.

North Dakota has a separate sexual-voyeurism statute, N.D. Cent. Code § 12.1-20-12.2, that criminalizes secretly installing or using a device to observe or record sounds or events with sexual intent in a dwelling or other place with a reasonable expectation of privacy. Trespass is an element only for the two dwelling prongs; the tanning-booth, hotel-room, and other-private-place prongs do not require trespass. This law targets sexual voyeurism and would not apply to a wearable device capturing a dispute or police interaction.