Recording Law for Recording in Public in South Dakota

South Dakota is a one-party consent state. That means you can legally record any conversation you are part of without telling the other people. The law covers in-person chats, phone calls, and electronic messages. The key rule is in South Dakota Codified Laws § 23A-35A-20, which makes it a felony to intercept a “wire, electronic, or oral communication” without consent. The state Supreme Court has said that one party’s consent removes any expectation of privacy, so the recording is allowed. State v. Woods, 361 N.W.2d 620 (S.D. 1985) construes the reasonable-expectation-of-privacy language now codified at SDCL 23A-35A-1(10), holding that one party’s consent negates any justified expectation, and State v. Braddock, 452 N.W.2d 785 (S.D. 1990) extends the one-party-consent outcome to wire communications through statutory-harmony construction rather than an independently cleared privacy-expectation gate.

Even in public, a conversation can still be protected if the speaker shows they expect it won’t be overheard. South Dakota’s law defines an “oral communication” as one where the speaker has “an expectation that the communication is not subject to interception under circumstances justifying the expectation.” S.D. Codified Laws § 23A-35A-1(10). If someone lowers their voice, steps aside, or speaks in a way that isn’t audible to passersby, they may still have a reasonable expectation of privacy. The courts have not set a clear line for every public setting, so you should assume the speaker might have a privacy claim unless the conversation is clearly loud and open to anyone nearby. The expectation-of-privacy gate is textually unique to oral communications; the separate definitions of “wire communication” (§23A-35A-1(15)) and “electronic communication” (§23A-35A-1(16)) carry no expectation-of-privacy qualifier at all, so phone/electronic communications are directly within SDCL 23A-35A-20’s one-party-consent regime without passing through any privacy-expectation threshold. Braddock’s extension of the one-party-consent rule to wire communications was reached through statutory-harmony construction of §23A-35A-20(1) vs. (2), expressly rejecting the argument that wire communications should instead require court authorization.

South Dakota has a separate law for video-only recording. Under S.D. Codified Laws § 22-21-1(2), it’s a misdemeanor to install or use a device to observe, photograph, or record someone in a private place without the consent of the person entitled to privacy there. This covers hidden cameras in bathrooms, changing rooms, or someone else’s home. The law also includes drone-specific rules added in 2020 by HB 1065, making it illegal to use a drone to photograph or record a person in a private place with a reasonable expectation of privacy, and separately criminalizes landing a drone on another person’s land without consent. If you’re filming in a public park or on a sidewalk, this law does not apply.

Federal courts in the Eighth Circuit, which covers South Dakota, have moved toward protecting the right to record on-duty police officers in public. In Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), the court denied qualified immunity to an officer who detained a bystander for watching a traffic stop from a public park. The court relied on a clearly established right to observe police-citizen encounters at a distance. However, the Eighth Circuit’s rule is narrower than in some other circuits, and officers may still claim qualified immunity in edge cases, such as inside a police station lobby. So, recording police in an open public space is on solid ground, but recording inside a government building or after an officer tells you to stop may carry legal risk. The Eighth Circuit has not squarely held that the First Amendment protects a general right to record on-duty police in public, and its precedent is narrower/less definitive than in circuits that have expressly adopted the right, as illustrated by Akins v. Knight, 872 F.3d 936 (8th Cir. 2017), where qualified immunity shielded officers who stopped filming in a police-station lobby. The 'robust consensus' language cited in some analyses belongs to Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017), a different circuit’s case, and is cited here as persuasive out-of-circuit authority, not as part of Akins itself.

South Dakota has no law that requires consent before collecting biometric data such as voiceprints or facial images in public. The state’s breach-notification law mentions biometric data only after a breach, not before collection, and it does not create a duty to get consent. There is no dedicated biometric privacy statute like Illinois’ BIPA or Texas’ CUBI. The only statutory appearances of 'biometric' bearing on this topic are in SDCL 22-40-19(4)(e) (data-breach-notification chapter’s definition of 'personal information') and SDCL 22-40-9(10) (identity-theft chapter’s definition of 'identifying information'), neither of which conditions the act of collecting a voiceprint on consent or notice. Enforcement of the breach-notification chapter is via SDCL 22-40-25, which authorizes the Attorney General to bring an action for civil penalties of up to $10,000 per day per violation plus attorney’s fees and costs; entities must also notify the Attorney General when a breach affects more than 250 South Dakota residents. So, if you’re recording your own voice or capturing someone else’s face in public, South Dakota law does not impose a biometric consent requirement.

Imagine you’re at a busy farmers market and a vendor starts yelling at a customer. The argument is loud enough that nearby shoppers can hear every word. You decide to record the exchange on your phone. Under South Dakota law, this recording is allowed because the conversation is happening in a public place and is clearly audible to others. The vendor has no reasonable expectation that the chat won’t be overheard. If the vendor had stepped behind a stall and spoken in a hushed tone, the analysis could change, because the speaker might have shown an expectation of privacy even in a public area. The expectation-of-privacy gate is textually unique to oral communications; the separate definitions of “wire communication” (§23A-35A-1(15)) and “electronic communication” (§23A-35A-1(16)) carry no expectation-of-privacy qualifier at all, so phone/electronic communications are directly within the one-party-consent regime without passing through any privacy-expectation threshold.

South Dakota’s video-recording statute, S.D. Codified Laws § 22-21-1, was amended in 2020 (HB 1065) to add drone-specific restrictions. It is now a misdemeanor to use a drone to photograph, record, or observe a person in a private place with a reasonable expectation of privacy, and to land a drone on another person’s land without consent. These provisions operate alongside the general device-installation ban in § 22-21-1(2), which already prohibited installing or using any device to observe, photograph, or record someone in a private place without consent. The drone-specific rules explicitly reach silent, audio-free video recording, so even recording without sound in a private outdoor space via drone can violate the law if the person filmed has a reasonable expectation of privacy there.