Recording Law for Recording at Home in South Dakota

South Dakota lets you record any conversation you are part of without telling the other person. This is true whether you’re recording in your own home or someone else’s private home. The rule comes from South Dakota’s felony eavesdropping statute, which makes it a felony to intercept a "wire, electronic, or oral communication" without consent. State v. Braddock, 452 N.W.2d 785 (S.D. 1990) extended this one‑party consent rule to phone calls and other wire communications. The key point: if you are part of the conversation, you can record it without notice. The statute’s definition of "oral communication" includes an expectation-of-privacy test, but a participant’s consent removes that expectation under State v. Woods, 361 N.W.2d 620 (S.D. 1985), which held that one party’s consent negates any 'justified expectation,' so 'no oral communication exists for purposes of this statute' once one party consents. The reasonable-expectation-of-privacy 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.

South Dakota makes it a misdemeanor to secretly install any device to observe, photograph, or record events or sounds in a private place without the consent of the person entitled to privacy there. This is a separate offense from the audio eavesdropping statute and applies even if you record no audio. The law covers hidden cameras and phones left running in a bedroom, bathroom, or any other private room. The statute also separately criminalizes using a drone to photograph, record, or observe a person in a private place with a reasonable expectation of privacy, as well as a drone-landing provision. South Dakota Codified Laws § 22-21-1(2).

A private place includes any area where someone has a reasonable expectation of privacy. That covers bedrooms, bathrooms, changing rooms, and any room in a home that is not open to the general public. It also includes private offices, hotel rooms, and similar spaces. The statute does not single out a person’s own home as different from another person’s home; both are treated the same way. If you set up a hidden camera in someone else’s private home without their consent, you violate the law whether it’s their house or yours. South Dakota Codified Laws § 22-21-1(2).

If you record video without audio in an open, public setting—like a park, sidewalk, or store aisle where people do not expect privacy—South Dakota’s video-recording law does not apply. The statute only bans secretly filming in a private place. Recording openly in public is not covered by either the audio eavesdropping statute or the video-recording statute. Just be sure the setting is truly public and you are not using the recording to intrude on someone’s private affairs. The felony interception statute (23A-35A-20) only reaches the 'aural acquisition' of communications via an 'eavesdropping device'—i.e., it is audio-triggered and does not by its terms restrict silent, audio-free video recording of a conversation or scene. However, SDCL 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.

South Dakota has no statutory law-enforcement exception that would immunize a civilian recording of 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).

Imagine you are hosting a friend for dinner in your living room. You decide to record the conversation on your phone because you want to remember the details later. Under South Dakota law, this is allowed because you are a participant in the conversation and you did not secretly install any device to capture video in a private place. If, instead, you secretly placed a hidden camera in the guest bathroom to record your roommate, that would violate the law even if you captured no audio. The difference is consent and the nature of the space.

Recording someone’s audio without consent in South Dakota is a Class 5 felony under SDCL 23A-35A-20. Secretly filming someone in a private place without consent is a Class 1 misdemeanor under SDCL 22-21-1. There is no private right of action under either statute, so you cannot be sued for damages by the person you recorded. The state prosecutes these offenses, not private individuals.