Is It Legal to Record a Conversation in South Dakota?

Statute · Penalty: mixed

S.D. Codified Laws § 23A-35A-20 (felony eavesdropping/interception statute, definitions in § 23A-35A-1, exemptions in § 23A-35A-21); companion private-place installation statute S.D. Codified Laws § 22-21-1 (misdemeanor)

In-person vs. phone & video calls

No split in outcome, but the mechanism differs by channel — worth stating precisely rather than as one uniform rule. SDCL 23A-35A-20 covers "wire, electronic, or oral communication" and reaches the same one-party-consent result for all three, but the reasonable-expectation-of-privacy language in § 23A-35A-1(10) ("an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation") is textually EXCLUSIVE to the "oral communication" definition — the separate "wire communication" (§23A-35A-1(15)) and "electronic communication" (§23A-35A-1(16)) definitions carry no expectation-of-privacy qualifier at all. State v. Woods, 361 N.W.2d 620 (S.D. 1985), is the foundational case construing the oral-communication REP language (quoted at the time as subsection (2), since renumbered to (10) — operative text unchanged): it holds that one party's consent negates any "justified expectation," so "no oral communication exists for purposes of this statute" once one party consents. State v. Braddock, 452 N.W.2d 785 (S.D. 1990), then extends the one-party-consent OUTCOME to wire communications — but reaches that result through statutory-harmony construction of § 23A-35A-20(1) vs. (2), expressly rejecting the argument that wire communications (which have no REP element in their own definition) should instead require court authorization. So: the REP gate itself is unique to in-person/oral communications; the one-party-consent rule that ends up applying uniformly across all three channels is a Braddock-driven statutory-construction holding, not proof that all three channels independently clear the same privacy-expectation threshold.

Recording in public

23A-35A-20's oral-communication trigger only applies where the speaker exhibits "an expectation that the communication is not subject to interception under circumstances justifying the expectation" (23A-35A-1(10)) — this is read as excluding conversations conducted in public where there is no reasonable expectation of privacy, so recording (audio) of interactions occurring in public generally falls outside the statute. Separately, 22-21-1's device-installation misdemeanor is expressly limited to a "private place"; it has no application to observing/recording in public places. No South Dakota appellate decision squarely defining "public place" for this purpose was located in this research; this reading follows from the statutory text plus the general "reasonable expectation" framework recognized in Braddock. Treat the exact contours of the public-place scope as textually supported but not confirmed by a directly on-point SD case in the material reviewed (medium confidence on precise boundaries, though the one-party-consent/audio-trigger core holding is high confidence).

Recording at home

No separate, stricter statutory rule specifically for a person's own home distinct from other private places. § 22-21-1 turns generally on whether the location is a "private place" and whether the "person or persons entitled to privacy there" consented — a person's own home is the paradigm "private place," but the statute does not carve out home recording as categorically different (e.g., a person recording within their own home who is a party to the conversation is protected the same way as elsewhere by one-party consent under 23A-35A-20; a person installing a hidden device in someone else's private space, including a home, without the consent of the person entitled to privacy there, violates 22-21-1(2)). No home-specific case law addressing this fact pattern was found; flagged rather than inferred further.

Recording the police

No South Dakota statutory law-enforcement exception applies to a civilian recording police in public under chapter 23A-35A (its exemptions in § 23A-35A-21 relate to court-authorized wiretaps/carrier operations, not to a bystander recording an officer). § 22-21-1's misdemeanor (installation of a hidden device in a private place) explicitly exempts law enforcement officers acting in the performance of lawful duties, but that exemption runs the other way (protects police use, not civilian recording of police) and is largely inapplicable to open recording of on-duty officers in public anyway. South Dakota sits in the Eighth Circuit. The Eighth Circuit has not squarely held that the First Amendment protects a general right to record on-duty police in public, but has moved favorably toward recognizing it: in Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), the court denied qualified immunity to an officer who detained a bystander for merely watching (and by extension recording) a traffic stop from a public park, relying on the clearly-established right (per Walker v. City of Pine Bluff, 414 F.3d 989 (8th Cir. 2005)) to observe police-citizen encounters at a distance without interfering. By contrast, in Akins v. Knight, 863 F.3d 1084 (8th Cir. 2017), the court granted qualified immunity to officers who stopped a person from filming inside a police station lobby, holding the right to record was not "clearly established" in that specific context (a police-station lobby, filming a civilian rather than an officer); the majority did not hold there is no right to record police in public. (Separately, the Third Circuit in Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017), held that a "robust consensus of circuit courts of appeals" recognizes a First Amendment right to record police — persuasive out-of-circuit authority, not part of the Akins opinion.) Net effect: recording on-duty officers acting in public in South Dakota is on relatively solid constitutional footing per Chestnut, but Eighth Circuit right-to-record precedent is narrower/less definitive than in circuits that have expressly adopted the right, and Akins shows qualified immunity can still shield individual officers in edge-case settings (e.g., non-public interior spaces, recording a civilian rather than police conduct).

Video-only capture (no audio)

The felony interception statute (23A-35A-20) only reaches the "aural acquisition" of communications via an "eavesdropping device" (23A-35A-1(6)-(7)) — i.e., it is audio-triggered and does not by its terms restrict silent, audio-free video recording of a conversation or scene. However, S.D. Codified Laws § 22-21-1(2), a separate misdemeanor statute, independently restricts video-only conduct: it prohibits installing "any device for observing, photographing, recording, amplifying, or broadcasting sounds or events" in a private place without consent of the person entitled to privacy there — this reaches pure video/photographic surveillance, not just audio. So: audio recording of a conversation is governed by 23A-35A-20 (one-party consent, felony); silent video/photography of a person in a place where they have a recognized expectation of privacy is governed by 22-21-1(2) (misdemeanor, requires consent of the person entitled to privacy in that place) — but silent video in a non-private/public setting is not restricted by either statute.

What counts as a “private” conversation →

South Dakota's gate is a reasonable-expectation-of-privacy test embedded directly in the statutory definition of "oral communication," not a separate multi-factor test or a bright-line "no one else present" rule. SDCL 23A-35A-1(10) (independently re-verified against the SD Legislature's own statute-text endpoint): an "oral communication" is "any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation." SDCL 23A-35A-20 (independently re-verified) is a Class 5 felony statute that separately prohibits (1) a sender/receiver's unauthorized recording of "a communication" (the wire/electronic-communication track) and (2) a person present's unauthorized recording of "a conversation" (the oral-communication track, via an "eavesdropping device"). The controlling case law is State v. Woods, 361 N.W.2d 620 (S.D. 1985) ("Woods I") -- confirmed as a real, correctly cited South Dakota Supreme Court decision (decided January 23, 1985, docket 14546), independently retrieved and read. Woods construes the "justified expectation" language now codified at SDCL 23A-35A-1(10) -- note a citation nuance: Woods itself quotes and analyzes the identical operative text under the subsection number then in force, "SDCL 23A-35A-1(2)" ("To qualify as an SDCL 23A-35A-1(2) 'oral communication,' an individual must have a justified expectation that his oral communication with another will not be subject to interception"), not "(10)." The definitions section has evidently been renumbered since 1985 (additional definitions inserted ahead of "oral communication"), but the operative language is verified word-for-word identical between Woods' 1985 quote and the current SDCL 23A-35A-1(10) text, so the substantive continuity claim is correct even though the pinpoint subsection number changed. Woods borrows from federal Fourth Amendment assumption-of-risk case law (Lopez v. United States, 373 U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293 (1966); United States v. White, 401 U.S. 745 (1971)) and holds: "when one person consents, there is no justified expectation that the communication will not be intercepted... Because we find no justified expectation of privacy in a one party consent recording, no 'oral communication' exists for purposes of this statute" -- both quoted phrases independently confirmed against the opinion text. State v. Braddock, 452 N.W.2d 785 (S.D. 1990) -- also independently confirmed as real and accurately quoted -- then extended Woods' one-party-consent rule from oral (in-person) communications to wire (telephone) communications: "the consent of one party to the recording of a communication takes that communication out of [the reach of the statute], whether the communication is oral or by wire." Braddock's own facts were a recorded telephone call, and the opinion confirms the defendant argued that wire communications -- lacking any "justified expectation of privacy" element in their statutory definition -- should therefore require court authorization rather than mere one-party consent; the court rejected that argument on statutory-harmony grounds (reading subsections (1) and (2) of §23A-35A-20 consistently) while relying heavily on Woods I throughout. Textual nuance, independently confirmed against the primary statute: the "expectation... under circumstances justifying the expectation" qualifier appears ONLY in the "oral communication" definition, SDCL 23A-35A-1(10). The separate definitions of "wire communication" (23A-35A-1(15): "any communication made through the use of facilities for the transmission of communications by the aid of wire, cable, radio, or other connection... furnished or operated by any person engaged as a common carrier") and "electronic communication" (23A-35A-1(16): "any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted by a wire, radio, electromagnetic, electronic, or optical system") contain no expectation-of-privacy language at all -- they are purely mechanical/technical definitions. So the reasonable-expectation-of-privacy GATE, strictly as a matter of statutory text, applies only to in-person "oral communications"; wire and electronic communications are covered by SDCL 23A-35A-20(1) without passing through any privacy-expectation threshold, and Braddock's extension of the one-party-CONSENT rule to wire communications was reached via statutory-harmony construction, not by holding that wire communications must independently clear an expectation-of-privacy gate. No SD appellate decision was located addressing the separate "public place" fact pattern (e.g., a loud conversation on a public street, or one held in front of visible third parties) as opposed to the one-party-consent-negates-expectation fact pattern that Woods/Braddock actually address -- that remains a genuine, confirmed gap in SD case law, not an error in the existing row. In South Dakota, an in-person utterance must first qualify as a statutory "oral communication" -- one made under circumstances that objectively justify an expectation it will not be intercepted, SDCL 23A-35A-1(10), as construed in State v. Woods, 361 N.W.2d 620 (S.D. 1985) -- before SDCL 23A-35A-20's felony prohibition attaches at all; if it clears that threshold, only one participating party's consent is required to record it lawfully (South Dakota is a one-party-consent state, per Woods and State v. Braddock, 452 N.W.2d 785 (S.D. 1990)), and under Woods' own reasoning a participant's consent to the recording is treated as negating the "justified expectation" itself -- so for oral/in-person conversations the gate and the consent question effectively collapse into one inquiry. Separately, this reasonable-expectation gate is textually limited to "oral communication" under §23A-35A-1(10) -- South Dakota's "wire communication" and "electronic communication" definitions (§23A-35A-1(15)-(16)) carry no expectation-of-privacy qualifier at all, so phone/electronic communications are directly within SDCL 23A-35A-20(1)'s one-party-consent regime without passing through any privacy-expectation gate in the first place; Braddock reached the same one-party-consent outcome for wire communications purely through statutory-harmony reasoning, expressly rejecting the argument that wire communications' lack of an expectation element should instead require court authorization. This does not change the bottom-line consent_type ("one_party") already in the dataset -- it refines the mechanism by which that outcome is reached for the two communication tracks.

Biometric / voiceprint law →

None. South Dakota has no dedicated biometric privacy statute (no BIPA/CUBI/WA-style law) and no comprehensive consumer data privacy act with a biometric-data provision. — None. South Dakota imposes no statutory consent, notice, or retention/destruction-policy requirement before collecting, capturing, or processing a voiceprint or other biometric identifier. "Biometric" appears in the SD Codified Laws in relevant part only at: (1) SDCL 22-40-19(4)(e) (breach-notification chapter), which includes within "personal information" — verified direct quote — "An identification number assigned to a person by the person's employer in combination with any required security code, access code, password, or biometric data generated from measurements or analysis of human body characteristics for authentication purposes"; and (2) SDCL 22-40-9(10) (identity-theft chapter's definition of "identifying information," used for the crime of identity theft under SDCL 22-40-8 to 22-40-10), which lists "Biometric data" as one enumerated category alongside SSNs, account numbers, etc. Neither provision conditions the act of collecting a voiceprint on consent or notice; they only create downstream duties (breach notification, enforced under SDCL 22-40-25, not 22-40-26) or downstream criminal liability for a third party's fraudulent use of already-obtained data, and neither confers a private right of action tied to biometric collection itself. Confirmed independently (this review) that South Dakota has not enacted a comprehensive consumer data privacy act (no CDPA/CPA/CTDPA/CCPA/UCPA analog) and has no dedicated biometric statute — corroborated by multiple independent secondary sources in addition to the primary statutory text, and by a search for pending 2025-2026 SD legislative session bills, which surfaced only SD SB49 (2026), a genetic-data privacy bill (unrelated to biometric identifiers like voice/face/fingerprint) — no biometric-specific bill was found. Secondary-source consensus also confirms only Illinois, Texas, and Washington currently have dedicated biometric-identifier statutes among the states, consistent with the original researcher's framing.

Attorney ethics (ABA Formal Op. 01-422) →

There is no South Dakota State Bar ethics opinion or South Dakota Supreme Court decision squarely on point. I independently re-pulled the State Bar of South Dakota's ethics-opinions index (statebarofsouthdakota.com/ethics-opinions/) and confirmed none of the listed opinions — including every one tagged to Rule 8.4 (2020-04, 2009-01, 2003-06, 2000-03, 2000-01) or Rule 4.2 (2023-09, 2022-07, 1998-09) — addresses recording of conversations; they concern client funds, champerty, third-party disclosures, and contact-with-represented-persons scenarios unrelated to recording. The only substantive authority is Midwest Motor Sports v. Arctic Cat Sales, Inc., 347 F.3d 693 (8th Cir. 2003), a federal appellate decision applying South Dakota's Rules of Professional Conduct. I independently retrieved and verified the operative block quotes from this opinion via a Congressional Research Service report (R42650, "Wiretapping, Tape Recorders, and Legal Ethics," Aug. 9, 2012, p.19) — the quotes match verbatim what the researcher reported. The facts: an investigator (Mohr) retained by defense counsel (Arctic Cat's attorneys) posed as a customer under false pretenses and secretly recorded conversations with a represented witness and another individual ("Bill"). The district court, applying the old per-se rule of ABA Formal Opinion 337 (1974), sanctioned counsel on the theory that the secret recording itself was dishonest under Rule 8.4(c). On appeal, the Eighth Circuit noted that ABA Formal Opinion 01-422 (2001) had superseded Formal Opinion 337, and that South Dakota's one-party-consent law (State v. Braddock, 452 N.W.2d 785, 788 (S.D. 1990), codified at SDCL 23A-35A-20) made the recording itself legal. It nonetheless upheld the sanctions, holding: "Mohr's unethical contact with Becker and 'Bill' combined with the nonconsensual recording presents the type of situation where even the new Formal Opinion would authorize sanctions" — because the recording was paired with independent misconduct (impersonation under false pretenses, itself deceit under Rule 8.4(c), and improper contact with a represented party under Rule 4.2, imputed to retaining counsel via Rule 8.4(a)). The court added, in a fact-bound aside, that "[t]he duty to refrain from conduct that involves deceit or misrepresentation should preclude any attorney from participating in the type of surreptitious conduct that occurred here." Net effect: the Eighth Circuit's application of South Dakota's rules tracks 01-422's own conditional structure — undisclosed recording alone is not treated as automatically unethical, but recording combined with independent deceptive conduct is sanctionable — rather than announcing a general, clean "South Dakota follows 01-422" rule or a "South Dakota rejects 01-422" rule. Because (a) this is an Eighth Circuit decision rather than a South Dakota Supreme Court or State Bar Ethics Committee pronouncement, and (b) it never had occasion to resolve the "plain vanilla" scenario of bare undisclosed recording with no accompanying misconduct, "middle_ground" (case-by-case/conditional, not a clean rule either way) is the accurate classification — not a stretch to force a "follows" label, and not so thin as to warrant "no_direct_authority," since a reasoned decision does exist and substantively engages with 01-422 in applying South Dakota's own professional-conduct rules. A lawyer relying on undisclosed recording alone in South Dakota — no impersonation, no improper contact with a represented party, no other deceit — would likely be fine under this authority and under SD's one-party-consent wiretap statute, but there is no clean, general South Dakota pronouncement saying so.

Can you personally sue over a violation?

Not directly under this statute — enforcement here is criminal/regulatory, not a private lawsuit.

Can I record as a guest in someone else's home?

South Dakota doesn't lean hard on where you're standing — recording as a guest in someone else's home is treated much like recording anywhere else in the state.

What if I'm on a call with someone in another state?

Play it safe: if either state on the call requires everyone's okay to record, treat the whole call that way — don't assume South Dakota's rule is the only one that matters just because you're the one wearing the glasses.

If it's legal to record, can it still be used against me later?

Usually, yes. Being legal to record and being protected from a future court case are two different questions — a legal recording can generally still be obtained by the other side later. Recording your own conversation with your own attorney is a separate, more protected situation, but almost everything else — a landlord, a police officer, a family member — isn't automatically off-limits to opposing counsel just because it was legal to capture.