South Dakota: Call and Conversation Recording Consent Requirements

Requirements one by one

Governing law and covered recording

South Dakota's interception chapter is SDCL ch. 23A-35A. Its participant-facing offense, § 23A-35A-20, uses an eavesdropping device and intentional recording as the operative elements. The device definition in § 23A-35A-1 reaches equipment intentionally used to acquire wire, electronic, or protected oral communications.

Whose consent a participant needs

The wording of § 23A-35A-20 excludes a sender or receiver who records a communication and a person present who records a conversation or discussion. A participant therefore does not need the other participants' consent under this section.

A recorder who is neither a sender nor receiver and is not present needs the consent of either a sender or receiver, or a party to the conversation. That is the one-party rule for a nonparticipant.

Privacy, confidentiality, or secrecy trigger

For face-to-face speech, the eavesdropping-device definition incorporates “oral communication.” Section 23A-35A-1 defines that category as speech uttered while the person exhibits an expectation against interception under circumstances justifying the expectation. The wire and electronic definitions do not state the same expectation test.

Telephone, in-person, and electronic coverage

The chapter defines wire communication to include transmission facilities using wire, cable, radio, or another connection supplied or operated by a common carrier. Electronic communication includes transmitted signs, signals, writings, images, sounds, data, and intelligence through wire, radio, electromagnetic, electronic, or optical systems.

Section 23A-35A-20 now uses the broader word “communication” for a sender or receiver and separately covers a conversation or discussion for a person present. It does not prescribe different consent rules for cellular, cordless, or landline calls.

How consent or notice is given

A participant relies on status as sender, receiver, or a person present; the statute does not require a separate warning. For a nonparticipant, § 23A-35A-20 requires one party's consent but supplies no written form, advance-consent language, spoken script, warning tone, or continued-participation rule.

Major participant-facing exceptions

Section 23A-35A-21 exempts court-authorized interception, normal common-carrier services and equipment, switchboard functions, carrier construction and operations, billing and fraud-protection activity, subpoena or lawful-authority responses, and technical assistance for an authorized interception.

Section 23A-35A-1 also excludes ordinary-course carrier or subscriber equipment and hearing aids that correct hearing to no better than normal from the definition of an eavesdropping device.

Criminal classification and penalty

An intentional nonparticipant recording without one party's consent is a Class 5 felony under § 23A-35A-20. Section 22-6-1(8) authorizes up to five years in a state correctional facility and, in addition, a fine up to $10,000.

Civil remedy and evidence effect

The official index for SDCL ch. 23A-35A contains no express private-damages section or general suppression section. Section 23A-35A-17 expressly permits court or grand-jury disclosure when the interception was authorized and made in accordance with governing law. Section 23A-35A-19 separately says a privileged communication does not lose its privilege whether the interception complied with or violated the chapter.

Interstate and federal boundary

Sections 23A-35A-1 and 23A-35A-20 do not decide which state's law governs a multistate call. Federal law generally permits a private participant or a person with one party's prior consent to intercept unless the purpose is criminal or tortious (18 U.S.C. § 2511(2)(d)).

That federal permission does not resolve another connected state's stricter rule. When callers or the recording device are in different jurisdictions, obtaining everyone's consent is the prudent baseline.

What trips people up

The statute is written as an exclusion from the felony. Section 23A-35A-20 says the guilty person “is not” a sender or receiver and “is not” present. Reading only the later consent clauses can obscure that an actual participant is already outside the offense.

Face-to-face coverage has a privacy element. A device used to acquire an in-person oral communication falls within the chapter only when the speaker's expectation against interception is exhibited and justified under § 23A-35A-1.

No notice method is prescribed. The statute tells a nonparticipant whose consent is enough, but it does not say that silence, continued participation, an audible tone, or a written term automatically proves consent.

Common questions

May I record my own South Dakota phone call without telling the other person? Section 23A-35A-20 excludes the sender or receiver from the felony, so South Dakota law generally permits it. Federal purpose limits and another connected state's law may still matter.

May a third person record for me? A nonparticipant needs the consent of either a sender or receiver of the communication or a party to the conversation. The statute does not prescribe the form of that consent.

Does the same rule cover an in-person meeting? A person present may record under § 23A-35A-20, but the chapter's “oral communication” definition makes the speaker's exhibited and justified expectation against interception relevant to whether the chapter applies.

Statutes and sources

• S.D. Codified Laws § 23A-35A-20 — participant exclusions, one-party consent for a nonparticipant, and Class 5 felony classification. https://sdlegislature.gov/api/Statutes/23A-35A-20.html (accessed 2026-07-20)
• S.D. Codified Laws § 23A-35A-1 — eavesdropping-device, wire, electronic, and oral-communication definitions. https://sdlegislature.gov/api/Statutes/23A-35A-1.html (accessed 2026-07-20)
• S.D. Codified Laws § 23A-35A-21 — exemptions from the chapter. https://sdlegislature.gov/api/Statutes/23A-35A-21.html (accessed 2026-07-20)
• S.D. Codified Laws § 22-6-1 — Class 5 felony maximum imprisonment and fine. https://sdlegislature.gov/api/Statutes/22-6-1.html (accessed 2026-07-20)
• S.D. Codified Laws § 23A-35A-17 — authorized court and grand-jury disclosure. https://sdlegislature.gov/api/Statutes/23A-35A-17.html (accessed 2026-07-20)
• S.D. Codified Laws § 23A-35A-19 — preservation of privilege. https://sdlegislature.gov/api/Statutes/23A-35A-19.html (accessed 2026-07-20)
• S.D. Codified Laws ch. 23A-35A — complete official section index. https://sdlegislature.gov/api/Statutes/23A-35A.html (accessed 2026-07-20)
• 18 U.S.C. § 2511(2)(d) — federal private-participant consent rule. https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section2511&num=0&edition=prelim (accessed 2026-07-20)