Is It Legal to Record Someone in South Dakota? What the Consent Statute Allows

01SDCL 23A-35A-20

South Dakota's One-Party Consent Rule

The eavesdropping statute, SDCL 23A-35A-20, makes it a crime to use a device to overhear or record a communication without the consent of either a sender or a receiver, or to record a conversation without the consent of a party to it. Read the other way, the statute generally permits a participant to record, and permits someone else to record with a participant's consent. That is why people describe South Dakota as a one-party consent state, and why it is usually legal to record someone in South Dakota when you are in the conversation yourself.

The statute carries a Class 5 felony penalty, and it opens with an exception clause pointing to SDCL 23A-35A-21, which we have not reviewed here and which your lawyer should check. The current text reflects amendments in 2006 and 2017. Delator Group, which coordinates South Dakota investigation services from Nashville, treats this statute as the starting point for any assignment that involves audio. Before you rely on a recording, also review our checklist for vetting an investigator, since some operators still offer covert audio work.

• A participant may generally record
• One party's consent is generally enough
• No party's consent: Class 5 felony

02Where it goes wrong

Where Recording Becomes a Felony

Most criminal exposure comes from recording conversations you are not part of. Leaving a phone recording in a kitchen after you walk out, hiding a voice-activated recorder in a vehicle, or installing an app that captures another person's calls are all examples where neither speaker has agreed. Each can fall within the statute regardless of the relationship. The same section separately bans recording jury deliberations. Our South Dakota surveillance investigations and employee surveillance assignments are designed around these limits: observation and photography from places the public can lawfully stand, not covert audio.

Written and electronic messages raise similar questions. The statute speaks of communications and the consent of a sender or receiver, so reading or capturing messages between two other people is risky in the same way. If you already have a recording and are unsure how it was made, stop sharing it and get advice. An independent case review can help your attorney decide whether the material is usable or a liability.

03Video and images

Hidden Cameras, Private Places and Image Laws

Video brings in a second statute. SDCL 22-21-1 makes it a Class 1 misdemeanor to trespass with intent to subject someone to eavesdropping or surveillance in a private place, or to install or use a device in a private place to observe, photograph or record without the consent of those entitled to privacy there. A camera hidden in a guest room, bathroom or rented space falls squarely within that concern. Travelers worried about devices in lodging can ask about hotel room surveillance concerns.

SDCL 22-21-3 separately covers peeking through windows of an inhabited building from another person's property, and SDCL 22-21-4 targets photographing someone unclothed without consent and distributing such images. A 2026 amendment added a Class 5 felony for creating or distributing digitally fabricated sexual images of an identifiable person. If images of you have been posted online, our personal information wipe helps reduce what else is exposed while counsel pursues removal.

• SDCL 22-21-1: devices in private places
• SDCL 22-21-3: peeping into a dwelling
• SDCL 22-21-4: intimate images and fabrications

04Interstate calls

Calls That Cross State Lines

South Dakota borders six states, and many calls placed by clients of our Sioux Falls private investigators, or from Watertown and Rapid City, connect to people in Minnesota, Iowa, Nebraska, North Dakota, Montana or Wyoming. Some states require every participant to consent before a call is recorded, and when the other caller sits in one of them, that state's law may apply to the recording. Federal law generally follows a one-party consent approach as well, but it does not override stricter state rules for every purpose.

The safest practice is simple: if you are unsure where the other person is, tell them you are recording, or ask counsel before relying on the recording. Matters that already span state lines, such as an infidelity case involving out-of-state travel, need this analysis early. Delator also coordinates surveillance that follows a subject across state lines, where the rules of each state on the route are part of the plan.

05Divorce, custody, protection orders

Recordings in South Dakota Family Cases

Family disputes produce more questionable recordings than any other area. South Dakota still lists adultery and extreme cruelty among its divorce grounds under SDCL 25-4-2, so spouses sometimes try to capture proof by recording the other spouse's calls. If you are not on the call and no participant agreed, that conduct can be a felony and can damage your credibility before the circuit court. A lawful married infidelity investigation documents conduct from public places instead.

Custody adds another layer. Courts weigh the child's welfare under SDCL 25-4-45, and a parent who secretly records the child or the other parent may be seen as putting the child in the middle. Whether a parent can consent to recording on a child's behalf is a question to put to counsel before acting. For stalking or abuse, a recording of threats made directly to you can support a protection order affidavit; our custody investigation guide and stalking documentation services cover both.

06Employment

Recording at Work and in Business Dealings

Employees often want proof of harassment or a retaliatory comment. Recording a meeting you attend generally fits within the one-party rule, but leaving a device running in a manager's office does not. Employer policies may also restrict recording, and South Dakota is an at-will employment state under SDCL 60-4-4, so breaking a policy can cost you the job even when the recording was lawful. If the issue is discrimination or harassment, a charge under the Human Relations Act generally must be filed within 180 days, so timing matters. See our workplace harassment investigations for how evidence is gathered properly.

Employers face mirror-image risks. Monitoring company devices and recording common areas with notice is different from placing audio devices in break rooms or restrooms. A business that suspects internal theft should build a lawful plan with counsel first; our employee theft investigations and wrongful termination support both start with what the law permits, and we put the method in writing before any monitoring begins.

07Evidence handling

How to Preserve a Recording So It Can Be Used

A lawful recording can still be excluded or attacked if it is handled poorly. Keep the original file on the original device, make a copy for working use, and never trim, enhance or rename the original. Write down when and where it was made, who was present and what device you used. Note the time zone as well, since Rapid City runs on Mountain Time while Sioux Falls and Pierre run on Central, and mismatched timestamps invite cross-examination. Attorneys can use our litigation support for counsel for authentication work.

Harassing calls and messages deserve their own log. SDCL 49-31-31 generally makes it a Class 1 misdemeanor to use a phone or electronic device to threaten or harass, including with spoofed caller ID, and stalking under SDCL 22-19A-1 can include repeated electronic harassment. Screenshots, call logs and voicemail files, preserved without editing, are often the backbone of a cyberbullying investigation or a protection order petition.

• Keep the original file and device
• Log date, place, people and time zone
• Never edit or trim the original

Services

Lawful Evidence Services in South Dakota

• Surveillance investigationsObservation and photography from lawful public vantage points, logged and time-stamped, without covert audio of conversations the investigator is not part of.Learn more
• Infidelity investigationsDocumentation of a suspected affair through lawful surveillance and records research, avoiding the felony risk of recording a spouse's private calls.Learn more
• Stalking documentationOrganizing threats, call logs and messages into a timeline that supports a protection order petition under South Dakota stalking law.Learn more
• Cyberbullying investigationsIdentifying the source of harassing accounts and messages and preserving the evidence in a form a court or school can rely on.Learn more
• Workplace harassmentWitness interviews and evidence review for harassment complaints, conducted so that recordings and statements remain usable before the Division of Human Rights.Learn more
• Hotel and lodging checksHelp for travelers and businesses concerned about hidden devices or unlawful recording in hotel rooms and rentals across South Dakota.Learn more
• Attorney litigation supportAuthentication work, chain-of-custody documentation and witness locates for recordings that counsel plans to offer in South Dakota circuit or federal court.Learn more
• Investigative consultingA frank review of a recording you already have, including how it was made and whether it creates exposure before you share it.Learn more
• Information wipeReducing personal data exposed online after a privacy violation, priced at $900 as a remote service with the scope confirmed in writing.Learn more

How it works

How We Handle Cases Involving Recordings

1. 01

   Hear how it was made

   We ask who was present, who consented, where the device was and which states the participants were in, before anyone listens to or copies the file.

2. 02

   Flag the legal questions

   We identify issues under SDCL 23A-35A-20, 22-21-1 and other statutes, and recommend that you take those specific questions to your own attorney before anyone goes further with the material.

3. 03

   Preserve and document

   Where the material is usable, we document its source, timestamps and handling so that chain of custody can be shown if the recording is challenged.

4. 04

   Build lawful corroboration

   We add surveillance, records research or witness interviews so that your case does not rest on a single recording that the other side will inevitably try to attack.

Compare

Common Recording Situations Under South Dakota Law

Statewide coverage

Recording Questions Arise Statewide

These rules apply in every county, but how a case unfolds depends on the court and the people involved. Northeastern clients often start with our Watertown investigators, and James Valley matters with Mitchell investigations. Along the Missouri River, see private investigation in Yankton. Near Ellsworth Air Force Base, our Box Elder investigator page covers the eastern edge of the Rapid City area. Central South Dakota matters near the capital run through Pierre investigations. Whatever the county, tell us how a recording was made before you send it.

• Sioux Falls
• Rapid City
• Watertown
• Mitchell
• Yankton
• Box Elder
• All of South Dakota

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