Recording Law for Video-Only Recording in South Dakota

South Dakota law does not restrict recording silent video or taking photos in public places where people do not have a reasonable expectation of privacy. If you are in a park, on a sidewalk, or in any other public area where people objectively do not expect privacy, you can record or photograph without anyone’s consent, provided you are not trespassing or violating other laws. This includes filming people, buildings, or events as long as the setting is indisputably public and people do not expect privacy there. For example, filming a protest in a public park is allowed, but filming inside someone’s home without permission is not. South Dakota’s felony eavesdropping statute, S.D. Codified Laws § 23A-35A-20, only prohibits the aural acquisition of communications via an eavesdropping device, so silent video recording in public is not covered by that chapter. Separately, the misdemeanor statute at S.D. Codified Laws § 22-21-1(2) expressly limits its reach to a 'private place,' which the statute does not define but which courts interpret through the lens of reasonable expectation of privacy. The reasonable-expectation-of-privacy gate for oral communications is textually exclusive to in-person/oral communications under S.D. Codified Laws § 23A-35A-1(10), and no South Dakota appellate decision squarely defines 'public place' for purposes of § 22-21-1(2). Because the statute does not define 'public place' and no South Dakota appellate decision squarely defines it for this purpose, the safer approach is to treat any setting where people objectively expect privacy as off-limits to secret video recording, even if the location is nominally accessible to the public.

South Dakota makes it a crime to secretly install or use a device to photograph, record, or observe someone in a private place without their consent. This is a Class 1 misdemeanor under South Dakota Codified Laws § 22-21-1(2). The law covers any device used to capture images or video, including hidden cameras or phones left in a room. It does not matter if the device records audio or not — the crime is the secret filming itself in a private space. A private place is anywhere someone has a reasonable expectation of privacy, such as a home, hotel room, bathroom, or backyard surrounded by a fence that objectively signals an expectation of privacy. The statute does not create a separate rule for someone’s own home; a person’s home is the paradigm private place, and recording there without the consent of the person entitled to privacy is prohibited. The law also reaches drone-specific conduct: under the 2020 amendment (HB 1065), it is illegal to use a drone to photograph or record someone in a private place without their consent, and it separately prohibits using a drone to land on someone else’s property without permission. Exceptions exist for incidental business, government, and emergency-management drone use, but those do not apply to private individuals recording others without consent. Violations are Class 1 misdemeanors. The drone-specific provisions operate alongside the general misdemeanor statute and do not displace it; they add an additional layer of regulation for drone-based surveillance.

South Dakota requires only one person’s consent to record a conversation, including phone calls. This is called one-party consent. Under South Dakota Codified Laws § 23A-35A-20, it is a Class 5 felony to use an eavesdropping device to aurally acquire someone’s communication without their consent if they have a reasonable expectation of privacy in the conversation. But if you are part of the conversation, you can record it without telling the others. The law defines 'oral communication' as any spoken words made with a reasonable expectation the conversation won’t be intercepted, and this expectation-of-privacy gate is textually exclusive to in-person/oral communications under S.D. Codified Laws § 23A-35A-1(10). State v. Woods, 361 N.W.2d 620 (S.D. 1985), explains that if one person consents, there is no reasonable expectation of privacy left to protect, 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, even though wire communications lack an expectation-of-privacy qualifier in their own definition. The statute’s reach is triggered by the use of an eavesdropping device to aurally acquire the communication, not by the mere act of recording audio.

Imagine you fly a drone over your neighbor’s backyard to film their patio and pool area. Your neighbor has a reasonable expectation of privacy in their backyard, even though it is outdoors. Under South Dakota law, using a drone to record or photograph someone in a private place without their consent is a misdemeanor under S.D. Codified Laws § 22-21-1(2) and the 2020 drone-specific amendments (HB 1065). Even if your drone does not record audio, the video-only recording is still illegal in this setting. This is true whether you are recording for personal reasons or posting the video online. The drone-specific amendments make this conduct independently unlawful, in addition to any potential liability under the general misdemeanor statute.

A private place is anywhere a person has a reasonable expectation of privacy. This includes homes, hotel rooms, bathrooms, changing rooms, and backyards surrounded by fences where the enclosure objectively signals an expectation of privacy. It can also include offices or other spaces where people expect to be alone. The law does not create a separate rule for someone’s own home — it treats all private places the same. If you are unsure whether a place is private, assume it is unless it is clearly open to the public, like a park or sidewalk. The statutory text does not define 'private place,' and no South Dakota appellate decision squarely defines it for purposes of § 22-21-1(2); courts therefore apply the general reasonable-expectation-of-privacy framework recognized in State v. Braddock, 452 N.W.2d 785 (S.D. 1990).

Recording on-duty police officers acting in public in South Dakota is on relatively solid constitutional footing, but Eighth Circuit precedent is narrower than in circuits that have expressly adopted a First Amendment right to record police. In Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), the court denied qualified immunity to an officer who detained a bystander for merely watching (and by extension recording) a traffic stop from a public park, relying 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. By contrast, in Akins v. Knight, 863 F.3d 1084 (8th Cir. 2017), the court granted qualified immunity to officers who stopped a person from filming inside a police station lobby, holding the right to record was not 'clearly established' in that specific context (a police-station lobby, filming a civilian rather than an officer). The majority did not hold there is no right to record police in public. 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 includes a loss on nearly this exact fact pattern (Akins, station lobby, qualified immunity granted). Because the contours of the right remain unsettled in the Eighth Circuit, treat capture of an on-duty police interaction as permitted only if the encounter is occurring in an outdoor, unambiguously open-access public space (public street, sidewalk, park, or similar area with no doors, checkpoints, or access control separating the wearer from the general public) and the wearer has not been ordered by an officer to leave, step back, stop recording, or otherwise disperse. If the encounter is inside any building, in any space with restricted or controlled public access, or if an officer has given the wearer any such order, hold capture for attorney review before any escalation.