Privacy · Recording Consent
Is It Legal to Record a Call in South Dakota?
Whether you can record a conversation in South Dakota, whether everyone must consent, the exceptions, the criminal penalty, and the trap that catches interstate calls. Cited to the statute.
The rules and exceptions in South Dakota
Whose consent you need, when the rule does not apply, and the penalty for getting it wrong.
| The rule in this state | What it means |
|---|---|
| One participant’s consent is enough | The eavesdropping-device offense turns on the absence of consent from a sender, receiver, or party. Because your own consent as a participant supplies that, recording a conversation you are part of is outside the prohibition. |
| Phone, in-person, and electronic are covered | Clause (1) reaches communications, including "wire communication" as defined in 23A-35A-1, clause (2) reaches an in-person "conversation or discussion," and the chapter was amended to reach "electronic communication" as well. |
| The offense keys on an eavesdropping device | Liability attaches to using an eavesdropping device to overhear or record without consent. A participant openly taking part and recording is not the eavesdropper the statute targets. |
| Jury deliberations are a separate offense | A juror who records deliberations commits a distinct offense under 23A-35A-20(3) with no consent defense, a legacy of the jury-bugging scandals that produced these provisions. |
| When it is different | What it means |
|---|---|
| Party or consent of a sender, receiver, or party | A participant, or anyone with the consent of a sender, receiver, or party, is outside the ban. This is the core one-party exception. |
| Court-ordered and carrier activity | Interception under an ex parte order per SDCL 23A-35A-6, and normal common-carrier service, equipment maintenance, billing, and fraud protection under SDCL 23A-35A-21, are all exempt. |
| Silent video sits under a different statute | Video without audio is not covered by chapter 23A-35A. A surveillance device in a "private place" is instead addressed by SDCL 22-21-1. Adding audio pulls you back into the wiretap chapter. |
What you can do right now
Concrete, neutral steps before you record a conversation in South Dakota. This is legal information, not legal advice.
- Record conversations you take part in
As a participant your own consent satisfies SDCL 23A-35A-20, so you may record your own South Dakota call or conversation without telling the other person.
- Do not plant a device where you are not present
A recorder left in an empty room has no consenting sender, receiver, or party. That is the felony fact pattern, and it can also trigger the private-place misdemeanor.
- Remember the state has no civil damages statute
If you were recorded illegally, the wiretap chapter offers no state damages. Consider the federal claim under 18 U.S.C. §2520 and common-law invasion of privacy.
- Talk to a South Dakota attorney if you are involved
A Class 5 felony is serious, and the civil path runs through federal law. A licensed South Dakota attorney can advise you, and the state attorney general’s office can point you to resources.
Illegal recording can be a felony. If you have been recorded without consent, or are accused of it, this resource can connect you with a licensed attorney.
→ South Dakota Attorney GeneralThis is general legal information, not legal advice. The expectation of privacy, the purpose of a recording, and interstate calls can change the answer, so confirm your situation with a licensed attorney.
What people get wrong about recording in South Dakota
South Dakota is a one-party consent state, so you can record a call or conversation as long as one participant agrees, and that participant can be you. The rule comes from SDCL 23A-35A-20, which punishes using an eavesdropping device to overhear or record without the consent of a sender, receiver, or party. Two features set South Dakota apart. First, it is a one-party state with no civil damages statute at all. The entire chapter 23A-35A remedy is criminal, so a person recorded illegally in South Dakota generally has to sue under federal law, 18 U.S.C. §2520, rather than state law. Second, it is one of the very few wiretap statutes that names jury deliberations as their own offense, a relic of the jury-bugging scandals of the era that produced these provisions. The statute is drafted as an awkward double negative, but its settled effect is one-party consent. Silent video is handled elsewhere, under the "private place" rule of SDCL 22-21-1, and adding audio pulls a recording back into the wiretap chapter. The practical takeaway is to record your own conversations freely, never leave a device recording where you are not present, and remember that your civil remedy if you are the victim is a federal one.
Common questions
Can I record my own phone call in South Dakota?
Yes. One party’s consent, including your own, is enough under SDCL 23A-35A-20, so you may record a conversation you take part in without telling the other person.
Can I sue someone who recorded me illegally in South Dakota?
Not under the state wiretap chapter, which has no damages section. Your realistic route is the federal claim under 18 U.S.C. §2520 plus common-law invasion of privacy.
Is a nanny cam legal in South Dakota?
Silent video sits under SDCL 22-21-1’s "private place" rule rather than the wiretap chapter. Adding audio brings you under SDCL 23A-35A-20, which requires a party’s consent.
Can a juror record deliberations?
No. That is a separate Class 5 felony under 23A-35A-20(3) with no consent defense, unlike the general one-party rule that governs ordinary conversations.
Not legal advicePlainStatute provides plain-language summaries of public law for general information only. This is not legal advice. Statutes change; always confirm current requirements with the official source linked above before acting.