Recording Law for Employers & Businesses in North Dakota

North Dakota allows you to record any conversation you are part of without telling the other person. The state follows a one‑party consent rule for audio capture, found in North Dakota Century Code § 12.1‑15‑02(3)(c). That section permits intercepting a wire or oral communication if you are a party to it or have the consent of one party, and you are not doing it to commit a crime or other unlawful harm. The same code section defines an “oral communication” in North Dakota Century Code § 12.1‑15‑04(5) as any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. If the speaker does not have that expectation—such as yelling in a crowded store—the exchange does not qualify as an “oral communication” under the statute at all, so the wiretap law does not restrict recording it. Video‑only recording has no restriction in North Dakota because the wiretap law only covers audio interception. Silent video without audio is not treated as an “intercept” under North Dakota Century Code § 12.1‑15‑04(4), which defines “intercept” as the aural acquisition of the contents of any wire or oral communication or by secretly overhearing the communication—an audio-only concept. Therefore, § 12.1‑15‑02 does not reach video-only recording.

Federal courts covering North Dakota lean toward protecting the right to record police in public, but the Eighth Circuit has not issued a definitive published ruling squarely recognizing a First Amendment right to record on-duty officers. 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 that every 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. The court relied on Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005), which had articulated a similar position. However, the Eighth Circuit’s case law remains more equivocal and less squarely on-point than the eight circuits (1st, 3rd, 5th, 7th, 9th, 10th, 11th, D.C.) that have expressly held there is such a right. North Dakota sits in the Eighth Circuit, so the law here is unsettled. For now, recording an on‑duty officer in a genuinely public space like a street or sidewalk is very likely constitutionally protected and consistent with the one‑party‑consent wiretap statute, but the Eighth Circuit’s case law is more nuanced than circuits with definitive holdings. Inside a police station lobby or similar controlled area, the Eighth Circuit’s decision in Akins v. Knight, No. 16-3555 (8th Cir. 2017), which is sometimes mischaracterized, actually involved blocking someone from filming a private citizen/protester in a station lobby rather than an officer performing duties in public, so it does not squarely contradict Chestnut/Walker. Because the right is not definitively settled in the Eighth Circuit, treat police recordings as fact‑specific and obtain legal confirmation before relying on them.

North Dakota’s wiretap law has no location-based carve-out for homes or private offices. The one‑party consent rule in North Dakota Century Code § 12.1‑15‑02(3)(c) applies uniformly regardless of where the oral communication occurs. The only home‑specific crime in the statutes is North Dakota Century Code § 12.1‑20‑12.2, titled “Surreptitious intrusion,” which criminalizes secretly installing or using a device to observe or record sounds or events from a house or place of dwelling when the actor enters upon another’s property, or to secretly observe or record in a tanning booth, hotel sleeping room, or other place with a reasonable expectation of privacy. Crucially, every prong of that statute requires sexual intent—to arouse, appeal to, or gratify lust, passions, or sexual desires—and it would not apply to a wearable device capturing a workplace dispute or police interaction. Therefore, being in a private home or workplace does not add any additional restriction for this use case beyond the one‑party consent rule.

There is no separately labeled “public place exception” in the North Dakota wiretap statute. Instead, the functional equivalent is built into the definition of “oral communication” in North Dakota Century Code § 12.1‑15‑04(5): it means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. Communications made openly in public with no reasonable expectation of privacy generally fall outside this definition, so recording them (audio or video) is not restricted by the statute at all, independent of the one‑party‑consent defense. However, no North Dakota appellate court has squarely applied a “public place” doctrine to this statute, so this interpretation is an inference from the statutory text rather than a bright‑line rule. When assessing whether a conversation in a public space qualifies, consider whether the speaker’s conduct affirmatively shows no attempt to keep the communication from being overheard—such as speaking at a conversational volume audible to bystanders without technological enhancement, or the absence of visible steps to seclude the conversation (e.g., no closed door, no moving away from others, no noticeable drop in voice). If the speakers took any steps to seclude themselves or the location is ambiguous, the safer course is to treat the conversation as potentially protected and seek legal review before recording.

Imagine an employee wearing smartglasses steps in to calm a loud argument between a customer and a coworker in a retail store. The employee joins the conversation and records it to document what happened. Under North Dakota law, this is allowed. The employee is a party to the conversation, so the one‑party consent rule in North Dakota Century Code § 12.1‑15‑02(3)(c) is satisfied. The store is open to the public, and the speakers are not taking steps to keep the conversation private—such as moving to a quiet corner, lowering their voices, or closing a door—so the recording is not restricted by the wiretap statute. The same would hold if the dispute moved outside to the store’s parking lot, which is a public thoroughfare. The key is that the employee is part of the exchange and the setting does not give the speakers a reasonable expectation of privacy under North Dakota Century Code § 12.1‑15‑04(5). If the conversation had occurred in a manager’s closed office with the door shut, the speakers’ conduct would suggest a reasonable expectation of non‑interception, bringing the exchange within the statute’s coverage and requiring compliance with the one‑party consent rule. If the employee were not part of the conversation, the recording would not satisfy the statute’s consent requirement unless the employee had obtained prior consent from a party to the communication. In all cases, the recording must not be for the purpose of committing a crime or other unlawful harm under North Dakota Century Code § 12.1‑15‑02(3)(c).

North Dakota has no dedicated biometric privacy statute and no statutory requirement to obtain consent, provide notice, or publish a retention or destruction schedule before collecting or processing a voiceprint. The state’s identity‑theft statute, North Dakota Century Code § 12.1‑23‑11, criminalizes the unauthorized use of someone else’s biometric data to fraudulently obtain value, but it does not regulate a company’s own collection or enrollment of a user’s own voiceprint with that user’s participation. Subsection (1)(r) of that statute defines “personal identifying information” to include “[a]n individual’s biometric data,” and subsection (2) makes it a crime to obtain, transfer, record, or use such information without authorization to obtain credit, money, goods, services, or anything else of value. The offense is tiered: a class B felony if the value obtained exceeds $1,000, a class C felony if the value is $1,000 or less, and a class A felony for a second or subsequent offense. There is no private right of action for biometric privacy claims in North Dakota. If your smartglasses enroll the wearer’s voice to distinguish it from bystanders, that activity is not restricted by state biometric privacy rules because it involves the wearer’s own voiceprint with their participation and does not implicate the unauthorized-use provisions of § 12.1‑23‑11. The only other North Dakota statute with a private right of action touching on data handling is North Dakota Century Code ch. 51‑22 (Data Processing Information Confidentiality), which bars a fee‑charging data‑processing business entity from disclosing “any record” about an individual without written consent and provides a private right of action with minimum statutory damages of $500 and a two‑year limitation period. However, this statute applies only to disclosure by entities that charge a fee for data‑processing services and does not regulate a company’s own collection or internal use of biometric data, so it is unlikely to reach a direct‑to‑consumer voice‑enrollment feature.

North Dakota has no ethics opinion or disciplinary decision that squarely addresses a lawyer’s undisclosed recording of a conversation. The operative rule is North Dakota Rule of Professional Conduct 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer. Because no North Dakota authority follows, rejects, or stakes a middle-ground position on ABA Formal Opinion 01‑422, lawyers should treat undisclosed recording as fact‑specific and obtain guidance from the State Bar Association of North Dakota or legal counsel before relying on it. The absence of direct authority means there is no clear ethical safe harbor for undisclosed recording in North Dakota, so caution and consultation are warranted.