South Dakota recording consent law for interviews: one-party, plus a private-place rule

South Dakota is a one-party consent state. Under SDCL 23A-35A-20, it is a Class 5 felony for someone who is not a sender or receiver of a communication to record it "without the consent of either a sender or receiver," or for someone not present during a conversation to record it "without the consent of a party." An interviewer is a party, so recording or transcribing their own interview is lawful under South Dakota law as of October 2026. A separate statute, SDCL 22-21-1, bars installing a recording device in a private place without the consent of the people entitled to privacy there, which matters for on-site interviews.

Comparing South Dakota with another state? Use the consent checker.

This page covers the statute's unusual wording, who counts as a party, the private-place rule, formats, penalties, cross-border calls and a consent line.

What does South Dakota's statute say?

Section 23A-35A-20 is written as a list of people who are guilty "who is not" in a given position. The opening reads: "Except as provided in § 23A-35A-21, a person is guilty of a Class 5 felony who is not" one of the following, and then describes conduct:

The definitions in SDCL 23A-35A-1 are broad. An eavesdropping device is "any electronic, mechanical, or other apparatus which is intentionally used to intercept a wire, electronic, or oral communication," and an electronic communication is "any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted by a wire, radio, electromagnetic, electronic, or optical system." Phone calls, video calls and in-person conversations are all within reach.

The exemptions in SDCL 23A-35A-21 cover court-ordered wiretaps, the normal use of carrier services and equipment, switchboard operators, carrier employees doing their jobs, and responses to subpoenas. None is written for employers, so an interviewer's protection comes from being a party, not from an exemption.

Who counts as a party in an interview?

• The interviewer and every panel member. On a call they are senders and receivers; in a room they are persons present. Each may record.
• A coordinator who is not on the call. Not a sender, receiver or person present. Recording is lawful only with a participant's consent.
• A note-taking tool attending for someone absent. Its owner is not a participant. A participant's consent brings it within South Dakota's rule; tell the candidate anyway.

Both paragraphs also reach anyone who "aids, authorizes, employs, procures, or permits another" to record without the required consent. A manager who sends a non-participant to capture interviews without any participant agreeing is within those words, not just the person holding the device.

What about devices left in an interview room?

SDCL 22-21-1 adds a second rule that does not depend on who is a party. No person may, except as authorized by law, "install in any private place, without the consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in such place, or uses any such unauthorized installation." It also prohibits trespassing "with intent to subject anyone to eavesdropping or other surveillance in a private place."

For on-site hiring, that means a recorder or camera installed in a closed interview room, running without the people in the room agreeing, is a problem even if an interviewer would have been allowed to record on their own device. The simple practice: if anything in the room records, say so before the interview starts.

Does the rule change for phone, video or in-person interviews?

What are the penalties in South Dakota?

• Eavesdropping. A Class 5 felony. Under SDCL 22-6-1, that is "five years imprisonment in a state correctional facility," and "a fine of ten thousand dollars may be imposed."
• Devices in private places. A Class 1 misdemeanor under SDCL 22-21-1. Under SDCL 22-6-2, that is "one year imprisonment in a county jail or two thousand dollars fine, or both."
• Civil. We did not find a civil damages section in chapter 23A-35A. The federal wiretap act gives a civil claim for unlawful interception under 18 U.S.C. § 2520, with statutory damages of "the greater of $100 a day for each day of violation or $10,000."

Federal law applies to the same interview, and its consent exception, 18 U.S.C. § 2511(2)(d), protects a party's recording "unless such communication is intercepted for the purpose of committing any criminal or tortious act." Recording to keep accurate notes is not that kind of purpose.

Is a transcript a recording in South Dakota?

Treat it as one. The statute covers anyone who "overhears or records," and a transcription tool listens to the audio in order to write it down. The federal definition of intercept is "the aural or other acquisition of the contents" of a communication. In South Dakota, a participant may do either. The distinction only matters when the candidate is in a state that requires everyone's consent, and there it does not help to have kept only the text. The broader rules, including AI scoring laws, are in is it legal to record a job interview.

What if the candidate is in another state?

Most of South Dakota's neighbors are one-party states for participants: Minnesota, Iowa, Nebraska, North Dakota and Wyoming. That covers most calls around Sioux Falls, which sits close to both the Minnesota and Iowa lines. Montana, to the northwest, is different: it makes it an offense to record a conversation with a hidden device without "the knowledge of all parties," unless they were warned; see Montana recording consent law for interviews.

National employers and agencies in South Dakota call candidates everywhere, including the all-party states listed on two-party consent states. Courts in those states have applied their own law to calls recorded elsewhere, so a South Dakota recruiter's one-party rule does not travel with the call; see recording calls across state lines.

A consent line for South Dakota interviews

"Before we start: I'd like to [record / transcribe] this interview so
my notes for the [role] position are accurate. It's seen by [who] and
deleted after [period]. If you're calling from another state today, or
you'd just rather I didn't, tell me and I'll take notes by hand. It
won't affect your application. Is that OK with you?"

[Clear yes: start capture. No or unsure: leave it off.]

Panel, email and log versions are in the interview recording consent script.

Checklist for South Dakota interviews

1. Ask every candidate before capture starts, in every format.
2. Never record an interview you are not in without a participant's consent, and tell the candidate.
3. Do not leave installed devices recording in a private interview room without everyone's consent.
4. Give a spoken warning on calls with Montana candidates.
5. Treat transcripts and AI notes the same as audio.
6. Write the rule into a dated policy that applies to every recruiter.

South Dakota's place among the other one-party states is shown on one-party consent states.