Reporter's Recording Guide
Last updated April 2020Compare
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.Compare
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.Compare
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).Compare
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).Compare
Illegally recording an in-person, telephone or electronic conversation is a felony offense. S.D. Codified Laws § 23A-35A-20.Compare
The law does not authorize civil lawsuits against violators.Compare
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.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Eighth Circuit, which includes South Dakota, has not yet directly addressed the First Amendment right to record, although it has favorably cited the federal courts of appeal that have recognized a right to record police activity in public. Chestnut v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020).Compare