Recording Law for Phone & Video Calls in South Dakota

South Dakota lets you record a phone call, Zoom call, FaceTime chat, or any other two-way audio conversation if at least one person in the call knows about the recording. The law treats phone and video calls the same as in-person chats for purposes of consent: if you’re on the call, you can record it without telling the other person. This comes from South Dakota’s wiretapping law, which makes it a Class 5 felony to intercept a “wire, electronic, or oral communication” without consent under South Dakota Codified Laws § 23A-35A-20. The state Supreme Court has said this rule applies whether the call is in person, over the phone, or through an online platform like Zoom or Teams. The key point is that one participant’s knowledge is enough—you don’t need everyone’s permission. The mechanism differs by channel: the statute covers all three types of communications, but the reasonable-expectation-of-privacy language in the "oral communication" definition is textually exclusive to in-person conversations, while the one-party-consent outcome is extended to wire and electronic communications through statutory-construction reasoning in State v. Braddock.

The rule is written in South Dakota Codified Laws § 23A-35A-20, a Class 5 felony statute that prohibits intercepting a "wire, electronic, or oral communication" without consent. The statute defines "intercept" as "aural acquisition ... through the use of any eavesdropping device." The state Supreme Court spelled out what this means in two cases. In State v. Woods, 361 N.W.2d 620 (S.D. 1985), the court said a conversation qualifies as a protected "oral communication" only if the speaker has a "justified expectation" the talk won’t be overheard. In State v. Braddock, 452 N.W.2d 785 (S.D. 1990), the court extended that rule to phone calls, holding that one party’s consent removes any expectation of privacy, so the call can be recorded legally. The statute itself doesn’t single out video calls, but the same one-party rule applies because the law covers "wire, electronic, or oral communication." The reasonable-expectation-of-privacy gate is textually unique to oral/in-person communications; the one-party-consent outcome for wire and electronic communications is a statutory-construction holding, not proof that all three channels independently clear the same privacy-expectation threshold.

South Dakota has a second law that bans secretly filming someone in private without consent. South Dakota Codified Laws § 22-21-1(2) makes it a Class 1 misdemeanor to install a device to “observe, photograph, or record” a person in a private place where they have a reasonable expectation of privacy. This applies even if you don’t record audio—just video or photos. The law is separate from the wiretapping statute and doesn’t require proof of an “intercept.” So if you’re silently recording a video call in a private setting (like your home office), you could run into this rule. The penalty is a Class 1 misdemeanor, which is less serious than the felony wiretapping charge but still a crime. The statute also now includes drone-specific provisions added by a 2020 amendment (HB 1065): it separately criminalizes using a drone to photograph, record, or observe a person in a private place with a reasonable expectation of privacy, plus a drone-landing provision, with exceptions for incidental business/government drone use and emergency-management workers.

The wiretapping law only protects conversations where the speaker has a “justified expectation” the talk won’t be overheard. That phrase comes from the definition of “oral communication” in South Dakota Codified Laws § 23A-35A-1(10). Courts have said one party’s consent removes that expectation, but they haven’t spelled out exactly what counts as a “public place.” A practical way to stay safe is to avoid recording in settings where people typically expect privacy—like a closed office, a private home, or a small meeting room. In truly public spots (a busy sidewalk or an open park), the risk is lower, but the law isn’t crystal clear, so it’s best to treat even those as gray areas unless you’re certain no one expects privacy. The statute’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, which is read as excluding conversations conducted in public where there is no reasonable expectation of privacy. Because no South Dakota appellate decision squarely defines 'public place' for this purpose, the precise boundaries remain textually supported but not confirmed by a directly on-point SD case.

Say you’re on a Zoom call with three coworkers to discuss a project. You’re in South Dakota, and you want to record the meeting to take notes later. Under South Dakota law, you can hit “record” without telling the others because you’re one of the participants. The same rule applies whether it’s a phone call, a FaceTime chat, or a Teams meeting. Just make sure the call isn’t happening in a private space where others might have a reasonable expectation of privacy—like a closed-door conference room at someone’s home. If you’re unsure, it’s safer to ask or to record only after everyone knows. The mechanism differs by channel: the statute covers all three types of communications, but the reasonable-expectation-of-privacy language in the "oral communication" definition is textually exclusive to in-person conversations, while the one-party-consent outcome is extended to wire and electronic communications through statutory-construction reasoning in State v. Braddock.

Breaking South Dakota’s wiretapping law is a Class 5 felony, which can mean up to five years in prison and a fine. The separate law against secret video recording in private places is a Class 1 misdemeanor, punishable by up to a year in jail and a fine. The state hasn’t spelled out every edge case, so if you’re recording in a space where privacy is expected, you could face trouble even if you don’t record audio. Always consider whether the setting feels private and whether others might object. When in doubt, ask or don’t record. The wiretapping statute’s oral-communication trigger only applies where the speaker exhibits a reasonable expectation of privacy, which is read as excluding conversations conducted in public where there is no such expectation.