Recording Law for Employers & Businesses in South Dakota

South Dakota lets you record any conversation you’re part of without telling the other person. The law treats this as one-party consent: only the person doing the recording needs to agree. This rule covers audio from phone calls, video calls, and in-person chats, but the mechanism differs by channel. The key statute is South Dakota Codified Laws § 23A-35A-20, which makes it a Class 5 felony to intercept wire, electronic, or oral communications without consent. State v. Woods, 361 N.W.2d 620 (S.D. 1985) first construed the reasonable-expectation-of-privacy language in § 23A-35A-1(10) and held that one party’s consent negates any justified expectation, so no oral communication exists for purposes of the statute once consent is given. State v. Braddock, 452 N.W.2d 785 (S.D. 1990) then extended the one-party-consent outcome to wire communications through statutory-harmony construction of § 23A-35A-20(1) vs. (2), expressly rejecting the argument that wire communications—lacking an expectation-of-privacy element in their own definition—should instead require court authorization. If you’re part of the conversation, you can record it legally under South Dakota law.

Recording someone’s image or video without their consent in a private place is a separate misdemeanor under South Dakota Codified Laws § 22-21-1. This law prohibits installing a device to observe or record in a private place where the person has a reasonable expectation of privacy. For example, placing a hidden camera in a customer’s home or a break room without consent can violate this rule. The penalty is a Class 1 misdemeanor. Unlike audio recording, this rule applies even if no audio is captured. The law also includes drone-specific provisions added in 2020, which separately criminalize using a drone to photograph or record someone in a private place with a reasonable expectation of privacy, as well as landing a drone on another person’s land without consent.

Recording in a public place—like a retail floor, sidewalk, or park—is generally allowed for audio under the one-party consent rule, but the mechanism differs by channel. For oral communications, the reasonable-expectation-of-privacy gate in § 23A-35A-1(10) excludes 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. For wire and electronic communications, the one-party-consent outcome applies without passing through a privacy-expectation gate, based on Braddock’s statutory-harmony construction. For silent video, the same public-place exception applies: recording in a public setting is not restricted by § 22-21-1, which independently restricts video-only conduct in private places. However, South Dakota courts have not defined exactly what counts as a "public place" for these laws. Because of that gap, treat any setting that isn’t clearly open and accessible to the general public as private unless a lawyer confirms otherwise. Employers setting policies for staff wearing smartglasses should make clear where recording is allowed and where it’s not, especially in customer homes or other private spaces.

South Dakota has no law requiring consent or notice before collecting voiceprints or other biometric data like fingerprints or facial scans. The only mentions of "biometric" in state statutes are in the data-breach notification chapter, where biometric data is included as a type of personal information that may trigger breach-notification duties—but only after a breach occurs, and in the identity-theft chapter, where "Biometric data" is listed as a category of identifying information. There is no requirement to get consent or provide notice before capturing a voiceprint, and no private right of action tied directly to biometric collection. The breach-notification chapter is enforced exclusively by the South Dakota Attorney General under SDCL 22-40-25, which authorizes civil penalties of up to $10,000 per day per violation plus attorney's fees and costs, and requires the AG to be notified when a breach affects more than 250 South Dakota residents. Employers using smartglasses with voice or facial recognition should still follow general privacy best practices and any federal or industry-specific rules that may apply.

Imagine a retail employee wearing smartglasses equipped with a camera and microphone. During a customer service interaction on the sales floor, the employee records the conversation to document the exchange. Because the conversation happens in a public area of the store and the employee is part of the discussion, this is legal under South Dakota’s one-party consent rule for oral communications, which excludes conversations conducted in public where there is no reasonable expectation of privacy. If the employee later enters a customer’s home to deliver a large purchase and records the interaction there without the customer’s consent, that silent video recording could violate § 22-21-1, even if no audio is captured. The employer should train staff on when and where recording is allowed to avoid missteps.

Breaking South Dakota’s audio recording law is a Class 5 felony under § 23A-35A-20, while illegal silent video recording in a private place is a Class 1 misdemeanor under § 22-21-1. There is no private right of action—only the state can bring charges. The Attorney General enforces the breach-notification chapter under SDCL 22-40-25, which authorizes civil penalties of up to $10,000 per day per violation plus attorney's fees and costs, and requires the AG to be notified when a breach affects more than 250 South Dakota residents. That law does not impose pre-collection consent or notice duties for biometric data. Employers should document their recording policies and train staff to avoid unintentional violations.