Recording Law for Family Law in South Dakota

South Dakota is a one-party-consent state. That means you can legally record any conversation you’re part of without telling the other person. The rule covers in-person talks, phone calls, and electronic messages. The law is in South Dakota Codified Laws § 23A-35A-20, a Class 5 felony statute that prohibits recording without consent. The state Supreme Court spelled out the rule in State v. Braddock, 452 N.W.2d 785 (S.D. 1990), which followed an earlier decision, State v. Woods, 361 N.W.2d 620 (S.D. 1985). Both cases say that when one person in the conversation consents, there is no “justified expectation” of privacy under the law, so the recording is lawful. This applies whether you’re talking face-to-face or on the phone.

The reasonable-expectation-of-privacy language is embedded in the statutory definition of “oral communication” at SDCL 23A-35A-1(10), which requires that the speaker exhibit an expectation that the communication is not subject to interception under circumstances justifying the expectation. The wire and electronic communication definitions at SDCL 23A-35A-1(15) and (16) contain no expectation-of-privacy qualifier, so phone and electronic communications are directly within the one-party-consent regime without passing through a privacy-expectation gate. Braddock extended the one-party-consent outcome to wire communications through statutory-harmony construction, expressly rejecting the argument that wire communications should require court authorization. The felony statute’s structure splits between subsection (1), which covers recording a “communication” (wire/electronic), and subsection (2), which covers recording a “conversation” (oral) via an eavesdropping device. The Woods decision, decided under the then-current subsection numbering, construes the expectation-of-privacy requirement now codified at §23A-35A-1(10) and holds that one party’s consent negates any justified expectation, so no oral communication exists for purposes of the statute once consent is given.

If you secretly record someone’s words without their knowledge and you are not part of the conversation, South Dakota makes that a Class 5 felony under § 23A-35A-20. The law targets “eavesdropping devices” used to intercept “wire, electronic, or oral communication.” The felony penalty is on the person doing the recording, not the person being recorded. The key point for family disputes: if you are part of the conversation, you’re allowed to record it; if you’re not, you’re not allowed to record it without consent. The statute’s reach is triggered by the use of an eavesdropping device to achieve “aural acquisition” of the communication, and it applies regardless of whether the communication is oral, wire, or electronic.

The statute’s exemptions, found in § 23A-35A-21, relate to court-authorized wiretaps and common-carrier operations and do not include any exception for civilian recording of police or others. The one-party-consent rule applies uniformly across all three communication channels—oral, wire, and electronic—due to Braddock’s statutory-harmony construction, even though only oral communications carry the reasonable-expectation-of-privacy qualifier in their definition. This means a participant’s consent is sufficient to lawfully record a phone call or electronic message, just as it is for an in-person conversation, without requiring court authorization.

South Dakota has a separate law, § 22-21-1, that makes it a Class 1 misdemeanor to install or use a hidden device to photograph, record, or observe someone in a private place without their consent. This covers silent video or photos taken where the person has a reasonable expectation of privacy—like inside a home, a bedroom, or a bathroom. The statute was amended to also cover drones used to photograph or record someone in a private place with a reasonable expectation of privacy, as well as a drone-landing provision. If you’re recording in a public place with no expectation of privacy, this law does not apply. The drone-specific provisions were added by 2020 amendment (HB 1065) and criminalize using a drone to photograph or record a person in a private place with a reasonable expectation of privacy, plus a drone-landing-on-others'-land provision, with exceptions for incidental business/government drone use and emergency-management workers.

The law’s reach is not limited to audio; it independently prohibits the installation of any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in a private place without consent. This means even silent video recording in a private space—such as a home, hotel room, or changing area—can violate § 22-21-1 if done without the consent of the person entitled to privacy there. The statute’s private-place limitation does not apply to recordings made in public spaces where there is no reasonable expectation of privacy.

The law does not clearly define “public place” for this purpose. Courts have not decided whether a loud conversation on a sidewalk or in a park counts as public or private under the statute. The reasonable-expectation-of-privacy test in SDCL 23A-35A-1(10) applies only to oral communications and requires that the speaker exhibit an expectation that the communication is not subject to interception under circumstances justifying the expectation. Because the law is unsettled, the safest approach is to treat any conversation as private unless it is clearly in an open outdoor area where the speakers are audible to passersby at normal volume and nothing suggests they are trying to keep the talk private. If there’s any doubt, assume it’s private until a lawyer confirms otherwise.

The Eighth Circuit’s right-to-record precedent, which governs recording police in public, is narrower than in some other circuits and has not squarely held that the First Amendment protects a general right to record on-duty police in public, though it has moved favorably toward recognizing it in cases like Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), which denied qualified immunity to an officer who detained a bystander for merely watching and recording a traffic stop from a public park. The statute’s public-place reasoning follows from the statutory text plus the general reasonable-expectation framework recognized in Braddock, but no South Dakota appellate decision squarely defines the precise boundaries of “public place” for purposes of § 23A-35A-20 or § 22-21-1.

Recording on-duty police officers in public is generally protected under Eighth Circuit precedent, but the court’s rule is narrower than in some other circuits. In Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), the court said officers cannot detain a bystander for merely watching and recording a traffic stop from a public park. But in Akins v. Knight, 872 F.3d 936 (8th Cir. 2017), the court shielded officers who stopped someone from filming inside a police-station lobby, finding the right to record was not “clearly established” in that specific setting. The “robust consensus” language cited in some analyses belongs to Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017), a Third Circuit decision recognizing a First Amendment right to record police, which is persuasive out-of-circuit authority but not part of the Akins opinion.

Because the law is fact-specific and still developing, treat any police recording in a non-public interior space as requiring attorney review before using it. South Dakota sits in the Eighth Circuit, which 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. The Eighth Circuit’s precedent is narrower/less definitive than in circuits that have expressly adopted the right, and qualified immunity can still shield individual officers in edge-case settings such as non-public interior spaces or when recording a civilian rather than police conduct.

Imagine you’re picking up your child at the mall for a scheduled custody exchange. You’re standing in the parking lot near the entrance. Your co-parent arrives and starts arguing loudly about the exchange schedule. You pull out your phone and start recording the conversation. Because you’re part of the conversation and it’s happening in a public parking lot where passersby can hear, this recording is likely lawful under South Dakota’s one-party-consent rule. If you later use the recording in court, it could help show what was said. If the exchange moves into a private area like a car or a secluded corner of the lot where voices are lowered, the situation changes and you should consult a lawyer before relying on the recording.

The reasonable-expectation-of-privacy test in SDCL 23A-35A-1(10) applies only to oral communications and requires circumstances justifying the expectation, so a lowered voice or secluded setting may reintroduce a privacy claim even in an otherwise public space. Separately, if you install a hidden camera in the parking lot to capture the exchange without consent, you could run afoul of § 22-21-1’s misdemeanor prohibition on installing a device in a private place, even if the parking lot itself is generally public, depending on the specific layout and whether the area qualifies as private under the statute.