South Dakota

Date: 
August 1, 2012

Summary of statute(s): An individual who is a party to either an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record it. S.D. Codified Laws § 23A-35A-20 (2012).

In-person conversations: The consent of at least one party to a conversation is required to record an “oral communication,” which is defined as “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. Thus, a journalist does not need consent to record conversations in public where there is no reasonable expectation of privacy.

Electronic communications: The consent of at least one party to a telephone communication is required to record it. But because the prohibition is limited to “wire communications,” a journalist does not need consent to record conversations between two people using cell phones or other wireless devices, or to disclose the contents of text messages sent between wireless devices. Id.

The state Supreme Court has held that the consent of one participant to any communication, whether in person or by telephone, to the recording removes it from the type of interception prohibited by the state wiretap statute. South Dakota v. Braddock, 452 N.W.2d 785 (S.D. 1990).

Hidden cameras: It is a misdemeanor to use a hidden camera in a place where one may reasonably expect to be safe from intrusion or surveillance. S.D. Codified Laws §§ 22-21-1, 22-1-2. The law, however, does not criminalize the use of such recording devices in areas to which the public has access or there is no reasonable expectation of privacy (i.e., filming conversations on public streets or a hotel lobby).

Criminal penalties: Illegally recording an in-person conversation or electronic communication is a felony offense. S.D. Codified Laws § 23A-35A-20.