Recording Law for Streamers & Creators 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. This applies to in-person chats, phone calls, and online voice chats. The key rule comes from South Dakota’s eavesdropping law, which makes it a Class 5 felony to secretly record a conversation where the speaker has a reasonable expectation of privacy. But if you are one of the people talking, your consent removes that expectation. State v. Woods, 361 N.W.2d 620 (S.D. 1985) first spelled this out for in-person talks, and State v. Braddock, 452 N.W.2d 785 (S.D. 1990) extended the same result to phone calls. The expectation-of-privacy gate is textually unique to oral/in-person communications; wire and electronic communications are covered by the statute without passing through any privacy-expectation threshold, and Braddock’s extension of the one-party-consent rule to wire communications was reached via statutory-harmony construction, not by holding that wire communications must independently clear an expectation-of-privacy gate.

South Dakota’s felony eavesdropping statute, S.D. Codified Laws § 23A-35A-20, makes it a Class 5 felony to use an “eavesdropping device” to intercept a “wire, electronic, or oral communication” without the consent of at least one party. The statute only applies where the speaker has a reasonable expectation of privacy. That expectation is defined in the statute itself: “any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation.” State v. Woods, 361 N.W.2d 620 (S.D. 1985) held that when one party consents, there is no such justified expectation, so no “oral communication” exists for the statute’s purposes. The reasonable-expectation-of-privacy language appears only in the “oral communication” definition; the separate “wire communication” and “electronic communication” definitions carry no expectation-of-privacy qualifier at all.

A separate South Dakota law, S.D. Codified Laws § 22-21-1, makes it a Class 1 misdemeanor to install a hidden device to photograph, record, or observe someone in a private place without the consent of the person entitled to privacy there. This covers silent video or photos taken inside homes, backyards, changing rooms, or any other space where someone reasonably expects privacy. The law was updated to include drones: using a drone to photograph or record a person in a private place with a reasonable expectation of privacy is also prohibited, with limited exceptions for business, government, or emergency use. The drone-specific provisions were added by 2020’s HB 1065 and are now codified alongside the original text.

In a public place where people have no reasonable expectation of privacy, South Dakota’s audio-recording rule does not apply. The statute’s “expectation of privacy” test is built into the definition of an “oral communication,” and South Dakota courts have not defined exactly what counts as a public place. Because of that gap, treat a conversation as public only if it happens outdoors in an open area like a sidewalk or park, is audible to passersby at normal volume, and shows no signs the speakers sought privacy. If any of those points are unclear, keep the conversation protected until you can confirm. The Eighth Circuit’s right-to-record precedent is narrower than circuits that have squarely adopted the right, and its own case law includes a loss on nearly this exact fact pattern (Akins v. Knight, 872 F.3d 936 (8th Cir. 2017)), where qualified immunity shielded officers who stopped filming in a police-station lobby.

There is no separate, stricter statutory rule specifically for a person’s own home distinct from other private places. Section 22-21-1 turns generally on whether the location is a “private place” and whether the “person or persons entitled to privacy there” consented — a person’s own home is the paradigm “private place,” but the statute does not carve out home recording as categorically different. A person recording within their own home who is a party to the conversation is protected the same way as elsewhere by one-party consent under 23A-35A-20; a person installing a hidden device in someone else’s private space, including a home, without the consent of the person entitled to privacy there, violates 22-21-1(2). No South Dakota appellate decision was found addressing a home-specific fact pattern; the rule follows directly from the statutory text.

Imagine you’re streaming from a busy downtown park. You and a friend chat loudly while others walk by. Because the chat is outdoors, audible to anyone nearby, and there’s no sign you sought privacy, South Dakota’s one-party consent rule allows you to record without telling your friend. Now imagine you’re in a store’s dressing room filming a try-on haul. Even if you’re part of the conversation, the dressing room is a private place. Installing a hidden camera there without consent would violate S.D. Codified Laws § 22-21-1 and could be a Class 1 misdemeanor. The same would hold true if you used a drone to record someone in that private space.

The Eighth Circuit, which covers South Dakota, has not squarely held that the First Amendment protects a general right to record on-duty police in public, but it has moved in that direction. 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. In Akins v. Knight, 872 F.3d 936 (8th Cir. 2017), the same court granted qualified immunity to officers who stopped someone from filming inside a police-station lobby. Because of these rulings, treat recording an on-duty police interaction as permitted only if it happens in an open outdoor space like a street or public park, and you have not been told to stop or leave. The court’s reasoning in Chestnut relied 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; the majority in Akins did not hold there is no right to record police in public.

A “private place” under S.D. Codified Laws § 22-21-1 is any location where a person has a recognized expectation of privacy. This includes homes, backyards, changing rooms, and any other space where someone reasonably expects seclusion from public view. The statute expressly reaches installation of a device to observe, photograph, record, amplify, or broadcast events in such a place without the consent of the person entitled to privacy there. Silent video or photography in a non-private/public setting is not restricted by either the felony eavesdropping statute or the private-place installation statute.