South Dakota Call Recording Laws: One-Party Consent

South Dakota is a one-party consent state: you may record a phone call or conversation you take part in, or one where a participant has consented. Recording a conversation you are not part of, without any participant's consent, is a felony.

For South Dakota businesses, recording your own calls is lawful. Neighboring Montana, where all parties must know about a recording unless warned, is the main reason to add a notice.

This is general information, not legal advice.

South Dakota recording law at a glance

Question	Answer in South Dakota
Consent rule	One party
Main statute	SDCL § 23A-35A-20
Can a participant record without telling others?	Yes
Criminal penalty	Class 5 felony
Civil remedy in the statute	None reported (federal remedy available)
Leading case	State v. Braddock (S.D. 1990)

What the statute says

South Dakota's eavesdropping offense is in SDCL Chapter 23A-35A, the state's chapter on interception of communications. Section 23A-35A-20 makes it a Class 5 felony, except as § 23A-35A-21 provides, for a person who is not "a sender or receiver of a communication" to intentionally overhear or record it with an eavesdropping device, or aid someone else to, "without the consent of either a sender or receiver of the communication." The same section covers similar conduct for conversations and jury deliberations.

The RCFP adds that the South Dakota Supreme Court held in State v. Braddock (1990) that one participant's consent to the recording of a telephone or electronic conversation removes it from the type of interception the wiretap law prohibits.

The sender-or-receiver test

South Dakota's statute is built around who is speaking. A "sender or receiver of a communication" can record their own calls. Anyone else needs the consent of "either a sender or receiver." For a business, that means the employee on the call can consent, and the business can record through that consent. It also means that a company owner, IT administrator or outside vendor who is not on a call cannot record it just because they control the phone system. Written employee consent is what connects business recording to the sender-or-receiver rule.

In-person conversations

South Dakota protects oral communications "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation" (§ 23A-35A-1). A participant may record, and so may someone with a participant's consent. Conversations in public generally are not protected.

Texts and email

The definition of electronic communication covers "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature," so intercepting texts in transit also requires a party's consent.

Drones and hidden devices

SDCL § 22-21-1 makes it a misdemeanor to install a device, or use a drone, to photograph or record a person in a place where they have a reasonable expectation of privacy. This matters for agricultural, real estate and inspection businesses that use drones: flying over private property to capture people is a separate risk from phone recording.

Penalties

Violation	Statute	Classification
Recording a communication without a sender's or receiver's consent	§ 23A-35A-20	Class 5 felony
Device or drone recording in a private place	§ 22-21-1	Misdemeanor

The RCFP notes that South Dakota's law does not specifically address disclosing recordings. Since a lawful one-party recording can be made, disclosure of it should generally be permitted, but other laws, such as defamation or privacy torts, can still apply to how it is used.

Civil liability

According to the RCFP, South Dakota's statute does not authorize civil lawsuits. The federal Wiretap Act allows civil suits under 18 U.S.C. § 2520, with statutory damages of the greater of $100 a day or $10,000. Federal law is one-party consent, unless the recording is made for a criminal or tortious purpose (18 U.S.C. § 2511(2)(d)).

Calls between South Dakota and neighboring states

Neighbor	Rule for phone calls
Montana	All parties must know, unless warned
North Dakota	One-party
Minnesota	One-party
Iowa	One-party
Nebraska	One-party
Wyoming	One-party

Western South Dakota's ranching and tourism economy runs into Montana. Montana makes it an offense to record a conversation with a hidden device without the knowledge of all parties, unless they were given warning. A notice at the start of the call satisfies it. Sioux Falls's banking and card-processing companies also serve customers nationwide. Read interstate call recording consent and see the state-by-state table.

Three South Dakota scenarios

A Sioux Falls card-services center records customer calls with a notice. Agents are parties, and customers in all-party states hear the notice.

A Rapid City outfitter secretly records a booking call with a client in Billings, Montana. South Dakota allows it. Montana requires that all parties know unless warned. Give the warning.

A Pierre landlord hides a recorder in an apartment to capture tenants' conversations. The landlord is not a party and has no consent. That is a felony under § 23A-35A-20.

What this means for South Dakota businesses

Banking and financial services

National card and banking operations should announce recordings and retain them under written schedules.

Agriculture and ranching

Recorded calls about livestock sales and contracts help resolve disputes. Give a notice when calling Montana buyers.

Tourism

The Black Hills draw visitors nationwide. Announce recordings on booking lines.

Employees

A signed recording and monitoring policy documents consent on your side.

A note on disclosure

South Dakota's statute does not separately address disclosing recordings, according to the RCFP. That gap is not permission to publish anything. A recording made without a sender's or receiver's consent is unlawful to make in the first place, and federal law, 18 U.S.C. § 2511(1)(c), separately prohibits disclosing the contents of a communication you know was illegally intercepted. For lawful one-party recordings, think about privacy and defamation before sharing a customer's call outside your business, and keep recordings in a system where access is limited and logged.

Recording on ranches and job sites

Ranch, construction and agricultural operations often use radios and cellphones in the field. Radio traffic that can be heard by anyone on the frequency raises different questions from private phone calls, but any device that captures a private conversation between other people, without a sender's or receiver's consent, falls under § 23A-35A-20. Tell crews which channels and calls are recorded.

South Dakota recording checklist

• Recording notice at the start of recorded inbound calls
• Spoken notice on outbound recorded calls, especially to Montana
• Signed employee recording and monitoring policy
• No recording of conversations you are not part of
• No drones or hidden devices capturing people in private places
• Callers who object are not recorded
• Access controls and retention schedule

Wording is in call recording disclosure scripts.

Recording calls in South Dakota with Callata

With recording turned on, Callata plays "This call may be recorded." to both sides as the call connects, inbound and outbound, which gives Montana callers the warning their law expects. Recordings are transcribed and summarized with sentiment and action items on the contact's history. Callata's terms keep consent-law compliance with you. Recording is included in Callata Office, which is $99 a month for up to five users and $20 a month for each additional user. Get started.