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South Dakota

Reporter's Recording Guide

Last updated April 2020

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Summary

An individual who is a party to an in-person, telephone or electronic conversation, or who has the consent of one of the parties to the conversation, can lawfully record it. S.D. Codified Laws § 23A-35A-20.

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In-person conversations

The consent of at least one party to a conversation is required to record “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” S.D. Codified Laws §§ 23A-35A-1, 23A-35A-20. Thus, consent is not required to record conversations in public where there is no reasonable expectation of privacy.

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Telephone and electronic communications

The consent of at least one party to a telephone conversation is required to record it. S.D. Codified Laws § 23A-35A-20. And because the provision of the law dealing with electronic communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. S.D. Codified Laws §§ 23A-35A-1. The South Dakota Supreme Court has also held that the consent of one participant to the recording of a telephone or electronic conversation removes it from the type of interception prohibited by the state wiretap law. South Dakota v. Braddock, 452 N.W.2d 785, 788 (S.D. 1990).

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Hidden cameras

It is a misdemeanor to install a device or employ a drone to photograph or record a person where that person has a reasonable expectation of privacy. S.D. Codified Laws § 22-21-1. The law, however, does not criminalize the use of recording devices in areas where there is no reasonable expectation of privacy (e.g., filming conversations on public streets or in a hotel lobby).

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Criminal penalties

Illegally recording an in-person, telephone or electronic conversation is a felony offense. S.D. Codified Laws § 23A-35A-20.

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Civil suits

The law does not authorize civil lawsuits against violators.

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Disclosing recordings

The law does not specifically address the disclosure of recordings. However, because it is lawful to record an in-person, telephone or electronic conversation if at least one party to the conversation has provided consent, disclosure of that conversation should also be permitted under the law.

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