Recording Law for Recording in Public in North Dakota

North Dakota’s wiretap law allows you to record a conversation as long as you are a party to it or have consent from one person in the conversation, and you are not doing so to commit a crime or cause unlawful harm. This one-party-consent rule applies uniformly to both wire communications (phone or electronic) and oral communications (in-person), as set out in North Dakota Century Code section 12.1-15-02(3)(c) and defined in sections 12.1-15-04(5)–(6). The statute does not require you to tell the other person you’re recording. A separate provision in NDCC 12.1-15-02(3)(b) addresses law-enforcement conduct when officers intercept communications while acting under color of law, but it does not create a general defense for police officers.

North Dakota’s wiretap law does not create a separate "public place" exception. Instead, the statute defines an "oral communication" as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." NDCC 12.1-15-04(5). If a speaker is in a genuinely public space and speaks at a volume others can easily hear, they likely do not have a reasonable expectation of privacy and the communication falls outside the statute’s coverage. If the speaker takes steps to keep the conversation private—such as lowering their voice, moving away from others, or using a closed door or booth—the expectation of privacy may still apply even in an otherwise public setting. Because no North Dakota appellate case has squarely applied a "public place" doctrine to this statute, courts would analyze the expectation-of-privacy question on the specific facts of each case.

Federal courts covering North Dakota lean toward protecting the right to record on-duty police officers performing their duties in public, but the Eighth Circuit has not issued a definitive published holding squarely recognizing that right. In Chestnut v. Wallace, No. 18-3472 (8th Cir. Jan. 21, 2020), 947 F.3d 1085, the court noted that every other federal appeals court to have considered the question has held that a person has the right to record police activity in public and that observing (a prerequisite to recording) must be protected as well. However, the Eighth Circuit’s earlier, unpublished decision in Akins v. Knight, No. 16-3555 (8th Cir. 2017), involved a situation where the plaintiff was blocked from filming a private citizen in a police-station lobby, not an officer performing duties in public; the opinion therefore does not squarely address recording on-duty officers in public. Because the Eighth Circuit has not squarely resolved the issue, the protection likely depends on where and how the recording occurs. Recording an officer in a public space such as a street or sidewalk is very likely constitutionally protected and consistent with North Dakota’s one-party-consent wiretap statute, but the circuit’s case law remains more equivocal than the eight circuits that have expressly recognized the right.

North Dakota’s wiretap law restricts only the "aural acquisition" of conversations. NDCC 12.1-15-04(4) defines "intercept" as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device or by secretly overhearing the communication." Because this is an audio-only concept, silent video with no audio component does not fall within the statute’s prohibitions. The only North Dakota statute that touches visual/video recording of another without consent is NDCC 12.1-20-12.2, a sexual-voyeurism statute that requires sexual intent in every prong and applies only in specific settings such as dwellings, tanning booths, or hotel sleeping rooms; it would not reach a wearable device capturing a public dispute or police interaction.

The statute asks whether the speaker exhibited an expectation that the communication would not be intercepted, and whether circumstances justified that expectation. NDCC 12.1-15-04(5). If a person speaks loudly in a busy store where others are nearby, they likely do not have a reasonable expectation of privacy. If they step into a quiet hallway, lower their voice, or otherwise take steps to keep the conversation private, the expectation of privacy may still apply. Because the expectation-of-privacy element is built into the definition of "oral communication," if the gate is not cleared the statute’s prohibition is never triggered at all; the one-party-consent rule in NDCC 12.1-15-02(3)(c) only comes into play if the communication qualifies as an "oral communication."

Imagine you’re shopping in a grocery store and two people are arguing loudly in the cereal aisle at a volume other shoppers can easily hear. Because they are speaking openly in a public space where others can overhear, they likely do not have a reasonable expectation that the conversation will not be intercepted. If you record the argument with your phone, North Dakota’s one-party-consent law allows it because you are part of the conversation and the communication does not meet the statutory definition of an "oral communication" under NDCC 12.1-15-04(5). If, however, one person steps into a quiet corner and whispers, the expectation of privacy may still apply; in that case, recording could implicate the statute unless you are a party to the conversation or have consent from one party under NDCC 12.1-15-02(3)(c).

North Dakota’s wiretap chapter contains no location-based carve-out for private spaces such as homes. The one-party-consent rule in NDCC 12.1-15-02(3)(c) applies uniformly regardless of where the oral communication occurs. The only other North Dakota statute that touches recording in private settings is NDCC 12.1-20-12.2, a sexual-voyeurism law that criminalizes secretly installing or using a device to observe or record sounds or events in a dwelling, tanning booth, hotel sleeping room, or other place with a reasonable expectation of privacy, but only when done with sexual intent. That statute would not apply to a wearable device capturing a dispute or police interaction.