South Dakota Recording Laws 2026: SDCL 23A-35A-20

October 1, 2017Updated May 16, 202646 min read

South Dakota is a one-party consent state. SDCL 23A-35A-20 permits any party to a wire, electronic, or oral communication to record it without notifying anyone else. The South Dakota Supreme Court grounded that rule in State v. Braddock, 452 N.W.2d 785 (S.D. 1990). Recording without consent is a Class 5 felony.

South Dakota is a one-party consent state for recording. Under SDCL 23A-35A-20, a person who is a sender or receiver of a wire or electronic communication, a person present during an in-person conversation, or anyone acting with the consent of one party may lawfully intercept or record without notifying the other participants. The South Dakota Supreme Court confirmed the rule in State v. Braddock, 452 N.W.2d 785 (S.D. 1990). Illegal interception is a Class 5 felony, punishable by up to 5 years imprisonment and a fine of up to $10,000 under SDCL 22-6-1(7).

This page is the South Dakota recording-law hub on RecordingLaw.com. It walks the operative criminal statute at SDCL 23A-35A-20, the penalty schedule at SDCL 22-6-1, the no-state-civil-cause-of-action gap at SDCL 23A-35A-25, the common-law invasion-of-privacy path through Gantvoort v. Ranschau, the visual-privacy statutes at SDCL 22-21-1, 22-21-3, and 22-21-4, the 2025 and 2026 deepfake enactments at SB 164 and SB 41, the Eighth Circuit record-the-police trio (Chestnut, Robbins, Molina), the body-camera and open-records framework at SDCL 1-27-1.5(5), the workplace overlay including Stericycle plus the GC 25-05 housekeeping correction plus GC 25-07, the federal overlay including the TAKE IT DOWN Act and the IMC v. FCC vacatur of the one-to-one consent rule, and an FAQ block. See also the full list of one-party consent states and the counter-list of all-party consent states.

South Dakota is a one-party consent state. This is also called single-party consent (also called one-party consent in older guides). Under SDCL 23A-35A-20, a single party's consent satisfies the statute. If you are part of the conversation, you can record it without telling the other person. The criminal prohibition reaches the outsider who intercepts by eavesdropping device without the consent of either a sender or receiver of a wire or electronic communication, or without the consent of a party to an in-person conversation. The participant who records the communication they are themselves part of is outside the prohibition.

The textual basis is the statutory carve-out built directly into SDCL 23A-35A-20. The section criminalizes a person who is "not" a sender, receiver, person present, or actor with consent of a party. Once the consent of one party is in play, the conduct falls outside the section's reach altogether. The South Dakota Supreme Court confirmed this reading in State v. Braddock, 452 N.W.2d 785, 788 (S.D. 1990), which holds that one-party consent removes a communication from the scope of SDCL Chapter 23A-35A.

South Dakota's one-party rule mirrors the federal Wiretap Act floor at 18 U.S.C. 2511(2)(d) almost word for word. The federal floor expressly bars one-party recording made "for the purpose of committing any criminal or tortious act"; the South Dakota statute does not carry the same explicit limit on the face of section 23A-35A-20, but the federal floor still applies to interstate wire and electronic communications.

The chapter heading is "Interception of Wire, Electronic, or Oral Communications," not "eavesdropping." Many South Dakota readers search for "eavesdropping law"; that search lands here. The operative South Dakota term is "interception"; the device is statutorily defined as an "eavesdropping device" at SDCL 23A-35A-1.

South Dakota borders five one-party-consent states and one structurally complicated neighbor. Minnesota, Iowa, Nebraska, Wyoming, and North Dakota are all one-party. Montana is bifurcated under MCA 45-8-213: one-party for in-person, all-party with notification for electronic communications. The interstate-call section below covers the rest.

South Dakota law library reading room with brass lamp and books in soft focus

SDCL 23A-35A-20: The South Dakota Interception Statute

SDCL 23A-35A-20 is the operative criminal statute. Its structure criminalizes a person who is "not" one of four protected categories, with the criminalized conduct being intentional interception or recording by means of an eavesdropping device. The four categories are: (1) senders or receivers of a wire or electronic communication (a party to a call is by definition a sender or receiver); (2) persons present during an in-person conversation (participants in face-to-face conversations); (3) persons acting with the consent of either a sender, a receiver, or a party to the conversation (the one-party-consent prong, which allows a non-participant to lawfully record if at least one party gives prior consent); and (4) members of a jury who record their own deliberations (a separate criminal-procedure protection that does not bend on consent).

Anyone outside those four categories who intentionally intercepts or records by eavesdropping device commits the Class 5 felony. The structure is the inverse of most state wiretap statutes: instead of prohibiting interception except where one party consents, South Dakota prohibits interception only by outsiders to the conversation who lack consent.

Statutory definitions and the SDCL 23A-35A-21 exemptions

The operative definitions live at SDCL 23A-35A-1. An "eavesdropping device" is "any electronic, mechanical, or other apparatus which is intentionally used to intercept a wire, electronic, or oral communication." The definition excludes (a) common-carrier telephone or telegraph equipment used by a subscriber in the ordinary course of business, (b) equipment used by a law enforcement officer in the ordinary course of duties, and (c) hearing aids used to correct subnormal hearing. The chapter contains no statutory definition of "consent"; that gap is closed by Braddock and ordinary tort principles.

SDCL 23A-35A-21 lists six categorical exemptions from the chapter (wiretap-warrant interceptions under SDCL 23A-35A-6; normal common-carrier service; switchboard operator functions; carrier fraud-protection and tariff-violation prevention; responses to subpoenas; and court-ordered carrier technical support to law enforcement). None of those establish private one-party consent; the private one-party rule is built into the structure of section 23A-35A-20 itself, which criminalizes only outsiders without consent.

State v. Braddock and the South Dakota Supreme Court interpretation

State v. Braddock, 452 N.W.2d 785 (S.D. 1990), is the foundational South Dakota Supreme Court decision interpreting SDCL Chapter 23A-35A. The court held that one party's consent to recording removes the communication from the scope of the chapter's interception prohibition. Braddock remains the controlling judicial interpretation; the South Dakota Attorney General has issued no published opinion that supersedes it. The current Attorney General is Marty Jackley, serving his second non-consecutive term since January 2023.

The chapter contains 34 sections (SDCL 23A-35A-1 through 23A-35A-34), covering definitions, the criminal interception offense, exemptions, the wiretap-warrant procedure, and pen-register and trap-and-trace authority. There is no civil-recovery section within the chapter. Older secondary sources that cite "SDCL 23A-35A-25" as a civil-damages section are misreading the statute: section 23A-35A-25 is titled "Contents of application," and it specifies what must appear in an application for a pen register or trap-and-trace order.

South Dakota lapel microphone clipped to a charcoal blazer

Penalties for Illegal Recording in South Dakota (Class 5 Felony)

A violation of SDCL 23A-35A-20 is a Class 5 felony. Under SDCL 22-6-1(7), a Class 5 felony is punishable by "five years imprisonment in a state correctional facility. In addition, a fine of ten thousand dollars may be imposed." The sentencing court has discretion to impose imprisonment, the fine, or both.

The Class 5 felony grading covers each of the criminal acts reached by section 23A-35A-20: intentional interception by eavesdropping device, aiding or authorizing another to do so, and intentional recording by a juror of jury deliberations. A Class 5 felony is the uniform tier for any non-participant interception without consent. This is the most-misstated element of South Dakota recording law in third-party secondary sources. Several older guides graded the offense at Class 6 (up to 2 years and $4,000), and the prior version of this article carried the same error. The correct grading is Class 5.

The related visual-privacy offenses at SDCL 22-21-1, 22-21-3, and 22-21-4 carry separate, generally lower penalties:

Offense	Statute	Class	Maximum penalty
Eavesdropping interception (audio/wire)	SDCL 23A-35A-20	Class 5 felony	5 years and $10,000
Trespass-to-eavesdrop or installing unauthorized device	SDCL 22-21-1	Class 1 misdemeanor	1 year and $2,000
Window-peeking	SDCL 22-21-3	Class 1 misdemeanor	1 year and $2,000
Voyeuristic recording or use of recording	SDCL 22-21-4	Class 1 misdemeanor	1 year and $2,000
Voyeuristic recording of minor (victim under 18, perpetrator 21+)	SDCL 22-21-4	Class 6 felony	2 years and $4,000
AI-deepfake NCII (effective July 1, 2026 under SB 41)	SDCL 22-21-4 (as amended)	Class 6 felony	2 years and $4,000
Political deepfake within 90 days of election	SB 164 (2025)	Class 1 misdemeanor	1 year and $2,000

The Class 6 felony tier for voyeuristic recording of minors and for SB 41 deepfakes is set at SDCL 22-6-1(8): up to 2 years imprisonment and a $4,000 fine. The Class 1 misdemeanor tier is set at SDCL 22-6-2: up to 1 year in a county jail and a $2,000 fine.

Statute of limitations

The criminal statute of limitations for a Class 5 felony under SDCL 23A-35A-20 is 7 years from the commission of the offense under SDCL 23A-42-2, which sets the catch-all 7-year limitations period for "all other prosecutions for a public offense" not otherwise specified. Section 23A-42-2 is the operative limitations period for South Dakota recording prosecutions; the only categorical extensions are at section 23A-42-3 for designated serious offenses.

The civil limitations period for a common-law invasion-of-privacy claim based on unlawful recording is 3 years under SDCL 15-2-14, the general personal-injury limitations period. Civil plaintiffs proceeding under 18 U.S.C. 2520 face a 2-year federal limitations period under 18 U.S.C. 2520(e).

South Dakota three smartphones around a blank document on a wooden desk

Civil Remedies: No State Statute, Common-Law Invasion of Privacy via Gantvoort

South Dakota has NO statutory civil cause of action for unlawful interception. Chapter 23A-35A is a criminal-procedure chapter only. The chapter contains 34 sections, none of which create a private right of recovery for victims of illegal recording. Older guides occasionally cite "SDCL 23A-35A-25" as a civil-damages section; that citation is wrong. SDCL 23A-35A-25 is the pen-register and trap-and-trace "Contents of application" section.

The absence of a state-law civil cause is the defining feature of South Dakota's recording-law civil landscape. Civil plaintiffs in South Dakota have exactly two pathways: a common-law tort claim, or a federal civil cause under 18 U.S.C. 2520.

Gantvoort v. Ranschau and the common-law invasion-of-privacy path

Gantvoort v. Ranschau, 2022 S.D. 22 (Apr. 6, 2022) is the modern South Dakota Supreme Court decision that confirms the common-law invasion-of-privacy path. The facts are striking: during a divorce, ex-wife Mary Ranschau placed a hidden recording device in ex-husband Doug Gantvoort's office. She made 51 recordings over three months in late 2014 and early 2015. Her attorney's paralegal then downloaded the recordings to the law firm's server for use in the divorce proceedings.

The South Dakota Supreme Court reversed the trial court's grant of summary judgment to the attorney on the aiding-and-abetting count. The court held that genuine issues of material fact existed regarding whether the attorney aided or abetted his client's invasion of privacy through the unlawful recording in violation of SDCL 23A-35A-20. The decision is the clearest modern statement that:

South Dakota recognizes the common-law tort of invasion of privacy (intrusion upon seclusion).
An unlawful recording in violation of SDCL 23A-35A-20 can supply the predicate intrusion.
Aiding-and-abetting liability extends to third parties (including attorneys and their staff) who knowingly assist in the interception or its downstream use.

The third holding is the most consequential for practitioners. Gantvoort extends civil liability beyond the recorder to the attorneys, paralegals, investigators, and other third parties who help the recorder use or further process the unlawfully obtained material. A South Dakota lawyer who receives a clearly-unlawful recording from a divorce client and processes it for litigation use is exposed to civil liability for aiding-and-abetting an invasion of privacy, even if the lawyer did not place the device.

Federal civil cause under 18 U.S.C. 2520

The federal Wiretap Act provides the second civil pathway. 18 U.S.C. 2520 authorizes any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of the federal Wiretap Act to recover:

Actual damages, or statutory damages of the greater of $100 per day per violation or $10,000.
Punitive damages in appropriate cases.
Reasonable attorney fees and other litigation costs.

The federal civil cause has a 2-year statute of limitations from the date the plaintiff first had a reasonable opportunity to discover the violation. Federal subject-matter jurisdiction is available because the claim arises under federal law. Most South Dakota wiretap plaintiffs pair a section 2520 claim with a state-law common-law invasion-of-privacy claim to capture both federal statutory damages and any larger compensatory recovery available under tort law.

Practical implications

A South Dakota victim of unlawful recording should file the criminal complaint with local law enforcement (which proceeds under SDCL 23A-35A-20), and separately file a civil action that pairs a common-law invasion-of-privacy claim with a federal 18 U.S.C. 2520 claim. The civil-criminal split matters: a criminal conviction is not a prerequisite to civil recovery, and a civil plaintiff can prevail even where the prosecutor declines to prosecute.

South Dakota glass-walled conference room with figures behind translucent doors

Recording Phone Calls in South Dakota and Across State Lines

South Dakota's one-party rule reaches phone calls because SDCL 23A-35A-20 expressly covers "wire" and "electronic" communications. The chapter's definitions are broad enough to cover landline calls, cellular calls, voice-over-IP audio, and the audio portion of video calls. A South Dakota resident who is a party to a phone call may lawfully record the call without notifying the other parties.

The cross-border case is the most-asked recording-law question in the Northern Plains. When a South Dakota resident calls a resident of a state with stricter recording rules, the federal courts and most state courts apply the "stricter state" default: the more protective state's rule governs. States that require all-party consent include California, Florida, Illinois, Maryland, Massachusetts, New Hampshire, Pennsylvania, Washington, Connecticut, and Delaware. A South Dakota caller into any of those states should obtain affirmative consent at the start of the call before recording.

Montana: the local exception

Montana borders South Dakota and uses a bifurcated rule under MCA 45-8-213. For in-person conversations, Montana is one-party. For electronic communications (which Montana courts read to include cellular and wire calls), Montana requires that "knowledge is given to all parties to the communication" before recording. The safer path for a Pierre or Sioux Falls resident calling a Billings or Bozeman resident is to announce the recording at the start of the call.

Federal floor and DOJ consensual monitoring

The federal Wiretap Act at 18 U.S.C. 2511(2)(d) is congruent with South Dakota's one-party rule for civilian recording. Federal investigators may engage in consensual monitoring under 18 U.S.C. 2511(2)(c) without judicial authorization. DOJ Justice Manual section 9-7.302 governs the internal-approval framework: sensitive-category monitoring (Members of Congress, federal judiciary, foreign officials) requires written DOJ Criminal Division or higher approval before monitoring begins.

Business call recording

South Dakota businesses can record calls for quality assurance, training, fraud prevention, or compliance because the business is a party to the call. State law does not require notice. Most businesses provide notice anyway, because it supports the affirmative-defense posture in cross-border calls. The FCC TCPA framework governs robocall and telemarketing recording separately under 47 U.S.C. 227.

South Dakota Wi-Fi router with status lights on a wooden side table

Hidden Cameras, Ring Doorbells, and SDCL 22-21-1

South Dakota's audio-side criminal statute (SDCL 23A-35A-20) is paired with a separate visual-and-physical-trespass statute at SDCL 22-21-1. The two statutes operate independently: an audio capture of a private conversation triggers 23A-35A-20, and a visual capture in a private place triggers 22-21-1.

SDCL 22-21-1: trespass-to-eavesdrop and unauthorized device installation

SDCL 22-21-1 prohibits two distinct acts, both Class 1 misdemeanors. The first is trespass-to-eavesdrop: trespassing on property with intent to subject anyone to eavesdropping or other surveillance in a private place. The intent element matters; an inadvertent trespass during which someone happens to overhear a conversation does not violate the section. The second is installing or using an unauthorized observation, photographing, recording, amplifying, or broadcasting device in a private place without the consent of the persons entitled to privacy there. Installation alone is sufficient; the section does not require that the device actually be used. A property owner who installs a camera in a guest bathroom violates the section even if the camera never records anyone. A law enforcement officer performing lawful duties is exempt.

SDCL 22-21-2: REPEALED in 1976. SDCL 22-21-3: window-peeking

SDCL 22-21-2 was repealed by SL 1976, ch 158, section 21-3, fifty years ago. It is not active law and must not be cited as a current voyeurism or eavesdropping provision. Some older recording-law guides still reference 22-21-2 as a standalone hidden-camera statute; that reference is wrong. SDCL 22-21-3 prohibits entering the private property of another and peeking in the door or window of any inhabited building or structure without lawful purpose; it is a Class 1 misdemeanor and the second pillar of South Dakota's general privacy-trespass framework.

Ring doorbells and other home-security cameras

A Ring doorbell or other home-security camera that captures audio in addition to video creates two overlapping questions. On the audio side under SDCL 23A-35A-20, the homeowner is a party to any conversation directed at the doorbell (the visitor speaking toward the door is communicating with the household), so the one-party rule generally supports the audio recording. A doorbell that captures audio from sidewalk conversations between people not addressing the household is in a grayer zone. On the visual side under SDCL 22-21-1, camera coverage of a public-facing porch, driveway, or sidewalk does not capture anyone in a "private place." Camera coverage that includes the neighbor's bathroom window, fenced backyard, or other reasonable-expectation-of-privacy area is at risk of section 22-21-1 liability, even if the recorder owns the camera.

Drones

South Dakota has no dedicated drone-recording statute. Drone capture of someone in a private place falls under SDCL 22-21-1's general device-installation prohibition; the drone is the "device" and the operator is the installer. FAA Part 107 governs the airspace and operator-licensing side; SDCL 22-21-1 governs the privacy-criminal overlay.

South Dakota wireless earbuds in their open charging case on a white desk

Workplace Recording in South Dakota (NLRB Stericycle)

South Dakota's one-party rule means that an employee who is a party to a workplace conversation may record without notifying the employer or coworkers. The state-law side of workplace recording is straightforward; the federal NLRB overlay is where most of the 2025-2026 confusion lives.

Stericycle remains binding

Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023) is the controlling Board precedent on facially neutral workplace rules, including no-recording rules. Under Stericycle, the General Counsel must show that a challenged rule has a reasonable tendency to chill employees' Section 7 rights, viewed from the perspective of a reasonable economically-dependent employee. Once that showing is made, the rule is presumptively unlawful.

The Section 7 activity that no-recording rules most often chill includes documenting unsafe conditions, gathering wage-and-hour evidence, recording union-organizing meetings, and preserving evidence of discrimination or harassment. A blanket employer no-recording policy that reaches all of those activities is presumptively unlawful under Stericycle. Narrowly drawn rules tied to legitimate interests (trade secrets, HIPAA in a clinical setting, classified information) may survive.

GC 25-05 is a housekeeping rescission, not a Boeing reinstatement

NLRB GC 25-05 (Feb. 14, 2025, signed by Acting General Counsel William B. Cowen) rescinded 29 prior General Counsel memoranda. GC 25-05 is a housekeeping rescission of prosecution-priority and advisory guidance only. It does not and cannot overturn Board law. Stericycle remains binding. The Boeing (365 NLRB No. 154 (2017)) framework is NOT reinstated by GC 25-05. Only the Board itself, in a precedential decision, can overturn Stericycle. Several employer-side advisories in early 2025 incorrectly framed GC 25-05 as a "Boeing reinstatement"; those framings are wrong.

GC 25-07 is narrow: bargaining-session recording only

NLRB GC 25-07 (June 26, 2025) treats surreptitious recording of collective-bargaining negotiation sessions as a per se violation of NLRA sections 8(a)(5) (employer) and 8(b)(3) (union). The memo is narrowly scoped: it applies only to formal CBA negotiation sessions, and does NOT reach one-on-one supervisor conversations, safety meetings, disciplinary interviews, or general workplace recording. South Dakota is a right-to-work state under SD Constitution article VI, section 2, and private-sector unionization is concentrated in meatpacking (Smithfield Sioux Falls), construction, and certain Sanford and Avera healthcare units, so GC 25-07's reach is limited.

Employer handbook policies

A South Dakota employer that prohibits workplace recording in its handbook is enforcing a policy, not a statute. The handbook prohibition is enforceable through ordinary discipline or termination in South Dakota's at-will employment framework, subject to two limits. The handbook policy cannot violate the Stericycle standard if the employer is covered by the NLRA. And it cannot be used to retaliate against an employee for engaging in protected activity (Section 7 activity under the NLRA, EEOC-protected activity under Title VII, OSHA-protected activity under the OSH Act). South Dakota employers should narrow their no-recording rules to specifically articulated legitimate interests (privacy of customer health information, trade secrets, classified or proprietary information) rather than blanket prohibitions.

South Dakota hands typing on a mechanical keyboard from above

Recording Police in South Dakota: The 8th Circuit Divergence

South Dakota sits in the Eighth Circuit. The Eighth Circuit has NOT recognized a clearly established First Amendment right to record police. This is a material divergence from the First, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits, all of which have recognized a clearly established right to record on-duty officers in public.

Chestnut v. Wallace: passive observation only

Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. Jan. 21, 2020), is the Eighth Circuit case most often cited for a right-to-record holding. Chestnut actually holds something narrower. Kevin Chestnut was jogging through a St. Louis park, stopped to watch a traffic stop from a distance, and was detained and handcuffed by Officer Wallace. The Eighth Circuit affirmed denial of qualified immunity and held that the First Amendment clearly establishes "the right to watch police-citizen interactions at a distance and without interfering."

Chestnut did not hold that the right to RECORD is clearly established. The decision is a passive-observation case, not a recording case. Later Eighth Circuit panels in Robbins and Molina expressly declined to extend Chestnut to a recording right.

Robbins v. City of Des Moines and Molina v. Book

Robbins v. City of Des Moines, 984 F.3d 673 (8th Cir. Jan. 5, 2021), is the first post-Chestnut Eighth Circuit decision squarely addressing a recording claim. The plaintiff was recording illegally parked cars from a public sidewalk outside the Des Moines police station and was briefly detained. The court held officers were entitled to qualified immunity on the First Amendment retaliation claim, assuming without deciding that a right to record exists but holding that the right was not clearly established in the Eighth Circuit.

Molina v. Book, No. 21-1830 (8th Cir. Feb. 2, 2023), is the most recent Eighth Circuit decision. The plaintiffs were National Lawyers Guild legal observers tear-gassed by St. Louis police after returning to private property blocks from a 2020 racial-justice protest. The Eighth Circuit held officers were entitled to qualified immunity because it was NOT clearly established that people have a constitutional right to unobtrusively observe and record police in public. En banc rehearing was denied April 24, 2023; the U.S. Supreme Court denied certiorari February 20, 2024 (No. 23-227).

The practical consequence for South Dakota

A South Dakota citizen who is arrested, detained, or has a phone seized while recording police has no clearly-established-right basis for a section 1983 First Amendment retaliation claim. The qualified-immunity barrier is substantial. South Dakota plaintiffs who can frame their claim under Chestnut (passive observation, no active recording) have a clearer path; plaintiffs whose conduct was active recording must surmount Robbins and Molina.

This is the single largest material divergence between South Dakota recording law and the law of most other one-party-consent states. A citizen in Massachusetts (1st Cir.), Pennsylvania (3rd Cir.), Louisiana (5th Cir.), Illinois (7th Cir.), California (9th Cir.), Colorado (10th Cir.), or Florida (11th Cir.) has a clearly-established right to record on-duty police in public. A citizen in South Dakota does not. The state-law side is more permissive: SDCL 23A-35A-20 does not criminalize recording police because the recorder is a person present or acting with the consent of one party (typically themselves). The civil-rights side is where the Eighth Circuit framework bites.

South Dakota broadcast camcorder on a tripod in an empty studio

Body-Worn Cameras: SD Has No Dedicated Statute

South Dakota has NO dedicated body-worn camera statute. There is no SDCL 23-3-45.1. The South Dakota Legislative Research Council statute database returns no result for that citation; older guides that include it are wrong.

The general law-enforcement records exemption at SDCL 1-27-1.5(5)

Access to body-cam and dash-cam footage is governed only by SDCL 1-27-1.5(5), the general law-enforcement records exemption to the South Dakota open-records framework. The section exempts:

"Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions, or businesses, if the records constitute a part of the examination, investigation, intelligence information, citizen complaint or inquiry, informant identification, or strategic or tactical information used in law enforcement training."

Body-worn camera footage, in-car dash-cam footage, and other audiovisual records from active investigations are exempt from disclosure under section 1-27-1.5(5) absent a court order. Release in connection with prosecution (as part of discovery, at trial, or post-conviction) is the most common public-disclosure vector. Direct FOIA-style requests from the public are routinely denied.

South Dakota Highway Patrol, local police, and open meetings

The South Dakota Highway Patrol uses in-car video and, in varying deployment, body-worn cameras under departmental policy. Footage is exempt under SDCL 1-27-1.5(5). The 2020 BWC bill (Sen. Reynold Nesiba) failed, and no replacement has passed the 99th, 100th, or 101st Legislative Assemblies. Local police departments (Sioux Falls, Rapid City, Aberdeen) operate body-worn camera programs under their own policies, with no statewide retention floor, activation policy, or release framework. South Dakota's Open Meetings Law (SDCL Chapter 1-25) does not contain an express recording right (unlike, for example, North Dakota's section 44-04-19), but the practical operation of the chapter has long been that members of the public may record open portions of meetings.

Non-Consensual Intimate Imagery and SDCL 22-21-4

SDCL 22-21-4 is South Dakota's nonconsensual-intimate-imagery (NCII) statute. The section is titled "Record--Privacy--Manipulated image--Violation" and prohibits three categories of conduct. Category 1 is photographing or visually recording another person without clothing or in sexual acts without consent, with intent to self-gratify, harass, or invade privacy, under circumstances where the victim has a reasonable expectation of privacy. Category 2 is using, disclosing, or disseminating recordings made in violation of Category 1 for the same self-gratification, harassment, or embarrassment purpose. Category 3 is knowingly and intentionally disseminating or selling any image or recording of another person that has been intentionally manipulated to create a realistic but false image depicting nudity or sexual acts without consent, with harmful intent. Category 3 is a 2018 addition that reaches digitally-manipulated images and now reaches AI-generated deepfakes under the 2026 SB 41 amendment described below.

A standard SDCL 22-21-4 violation is a Class 1 misdemeanor under SDCL 22-6-2(1): up to 1 year in a county jail and a $2,000 fine. The penalty escalates to a Class 6 felony under SDCL 22-6-1(8) (up to 2 years and $4,000) when the victim is under 18 and the perpetrator is 21 or older. SDCL 22-21-4 does not contain a private right of action on its face; NCII victims proceed under common-law tort theories (invasion of privacy, intentional infliction of emotional distress, public disclosure of private facts) and, for AI-generated deepfakes, under the federal TAKE IT DOWN Act covered below.

2025-2026 Deepfake Laws: SB 164 and SB 41

South Dakota enacted two deepfake statutes in consecutive legislative sessions. The 2025 statute targets political deepfakes; the 2026 statute targets nonconsensual intimate deepfakes.

SB 164 (2025): political deepfake statute

Senate Bill 164 (2025, 100th Legislative Assembly), signed by Governor Larry Rhoden on March 25, 2025, prohibits the dissemination of unlabeled AI deepfakes of South Dakota politicians within 90 days of an election with intent to harm a candidate. The statute requires a specific disclosure on AI-generated political content:

For video: "This (image/video/audio) has been manipulated or generated by artificial intelligence," legible, no smaller than the largest font size of apparent text, superimposed over each deepfake.
For audio: clearly spoken in audible pitch at the beginning and end.

Violation is a Class 1 misdemeanor (up to 1 year in jail and a $2,000 fine under SDCL 22-6-2(1)). Broadcasters, newspapers, websites, radio stations, satire, and parody are exempt.

SB 41 (2026): NCII deepfake felony

Senate Bill 41 (2026, 101st Legislative Assembly), signed by Governor Larry Rhoden on March 17, 2026 and effective July 1, 2026, amends SDCL 22-21-4 to create a Class 6 felony tier for the creation, possession, or sharing of computer-generated deepfake images of non-consenting adults in states of nudity or pornographic acts. The Class 6 felony tier under SDCL 22-6-1(8) authorizes up to 2 years imprisonment in a state correctional facility and a $4,000 fine.

The SB 41 amendment fills the gap that existed in pre-2026 South Dakota law. Before July 1, 2026, an AI-generated intimate deepfake of an adult fell under the SDCL 22-21-4 standard Class 1 misdemeanor tier (Category 3 manipulated-image prohibition). After July 1, 2026, the same conduct is a Class 6 felony.

During the 2026 legislative debate, lawmakers noted a residual disparity between penalties for hidden recordings of actual people (Class 1 misdemeanor under SDCL 22-21-1) and penalties for digitally fabricated images of those same people (Class 6 felony under amended SDCL 22-21-4). Attorney General Marty Jackley indicated openness to addressing the disparity in future sessions.

Federal TAKE IT DOWN Act overlay

The federal TAKE IT DOWN Act, Pub. L. 119-12 (signed May 19, 2025), criminalizes knowing publication of nonconsensual intimate visual depictions of identifiable individuals, including AI-generated digital forgeries (deepfakes) intended to cause harm. Criminal provisions were effective immediately on signing. Covered platforms have until May 19, 2026 to establish notice-and-removal processes:

Platforms must remove validly reported content (and known identical copies) within 48 hours of receipt of a valid notice.
Platforms must act in good faith to remove copies that come to their attention through other means.

The TAKE IT DOWN Act timeline interacts with South Dakota law as follows. Federal criminal exposure under the Act has been live since May 19, 2025. Federal platform notice-and-takedown obligations go live May 19, 2026. SD state felony exposure under amended SDCL 22-21-4 (via SB 41) goes live July 1, 2026. Before July 1, 2026, South Dakota victims rely on the federal TAKE IT DOWN Act criminal provisions plus Gantvoort common-law invasion-of-privacy plus pre-amendment SDCL 22-21-4 (Category 3 misdemeanor). After July 1, 2026, the full Class 6 felony plus federal platform takedown is available.

Federal Overlay: ECPA, FCC, NLRB, and the TAKE IT DOWN Act

Several federal frameworks overlay South Dakota recording law. The most consequential 2025-2026 developments are at the FCC.

18 U.S.C. 2511 and 2520: the federal floor

18 U.S.C. 2511 is the federal Wiretap Act criminal prohibition. Section 2511(2)(d) is the civilian one-party-consent floor; section 2511(2)(c) is the federal-investigator floor. The federal floor is congruent with SDCL 23A-35A-20. 18 U.S.C. 2520 is the federal civil cause of action, and it applies independently of any state-law civil cause, which matters in South Dakota because no state-law civil cause exists.

FCC 24-17: AI-generated voice calls under the TCPA

FCC 24-17 (Declaratory Ruling adopted Feb. 2, 2024, 39 FCC Rcd 1783) is a unanimous declaratory ruling confirming that AI-generated voices fall within the TCPA's definition of "artificial or prerecorded voice." Calls using voice cloning or AI-generated voices to consumers require prior express written consent for telemarketing or prior express consent for non-telemarketing informational calls. The ruling is in force.

FCC 23-107 was VACATED; FCC 24-24 remains in force

This is the most-misreported federal development in 2025. Two separate FCC orders have to be distinguished.

FCC 23-107 (Second Report and Order, released Dec. 18, 2023, published 89 Fed. Reg. 5098, Jan. 26, 2024) contained the "one-to-one consent" rule for TCPA lead-generation comparison shopping. That rule was VACATED by the Eleventh Circuit in Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277, decided Jan. 24, 2025, with the mandate issuing April 30, 2025. TCPA consent for lead-generation comparison shopping reverts to the pre-2023 common-law "prior express written consent" definition.

FCC 24-24 (Report and Order released Feb. 16, 2024, published 89 Fed. Reg. 15756, Mar. 5, 2024) is a separate order on TCPA consent-revocation rights. FCC 24-24 clarifies and strengthens consumer revocation rights: a consumer may revoke prior express consent by any reasonable means; revocation applies to both robocalls and robotexts; senders must honor revocation within a reasonable time not to exceed 10 business days. FCC 24-24 was NOT vacated by IMC v. FCC. It remains in force, with one subsection (revocation across all marketing categories of an entity) partially delayed to April 11, 2026.

The two orders are commonly conflated. The correct framing is: the one-to-one consent rule (23-107) is gone; the consent-revocation framework (24-24) remains.

47 C.F.R. 64.501 REMOVED in 2017; South Dakota PUC

47 C.F.R. 64.501 (formerly the "recordation of telephone conversations" rule that older sites still cite as a "beep tone" obligation) was REMOVED and reserved effective November 20, 2017, by FCC 17-95. It is not live federal law. The South Dakota Public Utilities Commission has no rules specifically governing call recording; its primary call-related regulatory activity is administering the South Dakota Do Not Call List under SDCL Chapter 37-30A. PUC complaints route to PUCConsumerinfo@state.sd.us or 1-800-332-1782, with referrals to the FCC, FTC, and SD AG Consumer Protection Division.

2026 Legislative and Regulatory Updates

Three South Dakota developments in 2025 and 2026 reshape the recording-law framework. SB 164 (2025), signed March 25, 2025 by Governor Larry Rhoden, criminalizes unlabeled political AI deepfakes within 90 days of an election as a Class 1 misdemeanor. SB 41 (2026), signed March 17, 2026 by Governor Rhoden, amends SDCL 22-21-4 to add a Class 6 felony for AI-generated NCII deepfakes of non-consenting adults, effective July 1, 2026. No body-worn camera bill has passed; access to body-cam footage remains governed only by SDCL 1-27-1.5(5).

Two federal developments also matter. The TAKE IT DOWN Act (Pub. L. 119-12, signed May 19, 2025) creates federal criminal exposure for AI-generated NCII immediately upon enactment, with platform notice-and-takedown obligations effective May 19, 2026. The Eleventh Circuit's vacatur of FCC 23-107 (Jan. 24, 2025, mandate Apr. 30, 2025) eliminates the one-to-one consent rule for TCPA lead-generation comparison shopping; the consent-revocation framework at FCC 24-24 remains in force.

This article was last verified on May 14, 2026. South Dakota recording law is fact-specific and subject to ongoing legislative and judicial development.

South Dakota Recording Laws by Topic

Each of the 12 pages below covers a specific South Dakota recording-law context in greater depth than this hub can. Use them to drill into the rule that applies to your situation.

South Dakota Audio Recording Laws
[South Dakota Dashcam Laws](/united-states-recording-laws/one-party-consent-states/south-dakota-recording-laws/dashcam/)
South Dakota Landlord-Tenant Recording Laws
South Dakota Medical Recording Laws
South Dakota Phone Call Recording Laws
South Dakota Laws on Recording Police
South Dakota Laws on Recording in Public
South Dakota School Recording Laws
South Dakota Security Camera Laws
South Dakota Video Recording Laws
South Dakota Voyeurism Laws
South Dakota Workplace Recording Laws

Frequently Asked Questions

More South Dakota Laws

South Dakota Recording Laws
South Dakota Recording Laws
South Dakota Recording Laws
[South Dakota Data Privacy Laws](/us-laws/data-privacy-laws/south-dakota-data-privacy-laws/data-breach-notification)
South Dakota Data Privacy Laws
South Dakota Dog Bite Laws
South Dakota Recording Laws
South Dakota Recording Laws

Disclaimer

This page presents general legal information about South Dakota recording laws as of May 14, 2026, including SDCL 23A-35A-20, 23A-35A-1, 23A-35A-21, 22-21-1, 22-21-3, 22-21-4, 22-6-1, 22-6-2, 23A-42-2, 15-2-14, 1-27-1.5, and Chapter 1-25, plus Senate Bill 164 (2025), Senate Bill 41 (2026), the controlling South Dakota Supreme Court decisions in State v. Braddock and Gantvoort v. Ranschau, the Eighth Circuit record-the-police trio (Chestnut, Robbins, Molina), and the federal overlay (ECPA, FCC, NLRB, and the TAKE IT DOWN Act). It does not constitute legal advice. South Dakota recording law is fact-specific and subject to ongoing case-law and legislative development. Federal developments (TAKE IT DOWN Act platform deadlines, FCC actions, NLRB guidance) and any post-publication South Dakota legislation may change the framework. If you face a specific legal situation involving recording in South Dakota, consult an attorney licensed in South Dakota.

Last updated: 2026-05-14. Statutes cited reflect their in-force version as of 2026-05-14.

Sources and References

()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()
()

Quick Answer: Is South Dakota a One-Party Consent State?

SDCL 23A-35A-20: The South Dakota Interception Statute

Statutory definitions and the SDCL 23A-35A-21 exemptions

State v. Braddock and the South Dakota Supreme Court interpretation

Penalties for Illegal Recording in South Dakota (Class 5 Felony)