South Dakota Recording Law Summary:
Is South Dakota a One Party Consent State?
South Dakota recording law stipulates that it is a one-party consent state. In South Dakota, it is a criminal offense to use any device to record or share use communications, whether they are wire, oral or electronic, without the consent of at least one person taking part in the communication. This means that in South Dakota, you are legally allowed to record a conversation if you are a contributor, or with prior consent from one of the involved parties, barring any criminal intentions. S.D. Codified Laws § 23A-35A-20 (2012).
However, while the consent of one party is required to record a telephone conversation, this only applies to conversations that take place entirely or partially through “wire communications”. Therefore, conversations where all parties are using a cell phone, as well as messages exchanged between cell phones, can be lawfully intercepted.
You may not record or share conversations that you are not a part of without the consent of at least one party.
However, South Dakota law does make an exception in cases where the person or people communicating are doing so in an environment where they should not be under the expectation of privacy. S.D. Codified Laws § 23A-35A-1.
If you are a third-party and require consent from the parties taking part in the conversation, the Federal Communications Commission (FCC) states that you may gain consent to make a recording by:
- Getting verbal or written consent prior to the recording being made.
- A verbal notification being played before the conversation begins. (For example: “This phone call is being recorded for quality control purposes…”).
- An audible beep tone being repeated at steady intervals during the duration of the conversation.
South Dakota Video Recording Laws
Unless authorized by law, it is illegal to:
- Trespass on private property with the intention of subjecting another person to eavesdropping or other surveillance.
- Install or use in any private place any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in such place without the consent of person(s) entitled to privacy there. For example, you are not allowed to point your security camera at your neighbor’s backyard because that is place in which he or she is entitled to privacy.
- Use a drone to photograph, record, or otherwise observe another person in a private place where the person has a reasonable expectation of privacy.
- Land a drone on the lands or waters of another resident provided the resident owns the land beneath the water body in its entirety, without the owner’s consent, except in the case of forced landing and the owner or lessee of the drone will be liable for any damage resulting from a forced landing.
S.D. Codified Laws § 22‐21‐1
S.D. Codified Laws § 23A-35A-20: Recording a conversation in violation of South Dakota law is considered a felony.
S.D. Codified Laws § 22‐21‐1: Violating South Dakota’s video recording laws is a Class 1 misdemeanor punishable by imprisonment not exceeding 1 year or a fine not exceeding $2000, or both.