Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:

South Dakota

Current status

South Dakota has an eavesdropping statute that addresses only oral and wired communications. Overhearing or recording such communications by a person other that the sender or the receiver of wired communications, without consent of either a sender or a receiver, or by a person who is not present during an oral conversation is unlawful.

Eavesdropping is further addressed in Chapter 21 of the S.D. Codified Laws, which addresses trespassing with the intention to eavesdrop or peek on private property.

Impact of law

South Dakota is an “one party consent” state, which means that an individual who is a party to an in-person conversation or electronic communication, or who has the consent of one of the parties to the communication, can lawfully record such conversation without notifying or asking the other parties to consent.

The South Dakota law also addresses trespassing on private property with the intention to eavesdrop or subject a person to surreptitious surveillance, either directly or by using any device for observing, photographing, recording, amplifying, or broadcasting sounds or actions of a person without the person’s consent.

References to Physical TSCM

The law mentions eavesdropping devices, defined as any electronic, mechanical, or other apparatus which is intentionally used to intercept a wire or oral communication, as well as devices for observing, photographing, recording, amplifying, or broadcasting sounds or events. All these devices are mentioned in the context of unlawful interception or surveillance.

References to Cyber TSCM

Cyber means of surveillance not mentioned in the text of law.

Criminal implications

Violations of the South Dakota recording law are Class 5 felonies. Violations of the eavesdropping law are Class 1 misdemeanors.

Civil implications

Code excerpts

S.D. Cod. Laws 23A-35A-20[1]. Overhearing or recording telephone or telegraph communications, conversations, or jury deliberations by means of eavesdropping device as felony.

Except as provided in § 23A-35A-21, a person is guilty of a Class 5 felony who being:

(1) Not a sender or receiver of a telephone or telegraph communication, intentionally and by means of an eavesdropping device overhears or records a telephone or telegraph communication, or aids, authorizes, employs, procures, or permits another to so do, without the consent of either a sender or receiver thereof;

(2) Not present during a conversation or discussion, intentionally and by means of an eavesdropping device overhears or records such conversation or discussion, or aids, authorizes, employs, procures, or permits another to so do, without the consent of a party to such conversation or discussion;

S.D. Cod. Laws 23A-35A-1[2]. Definition of terms. Terms used in this chapter mean:

(6) “Eavesdropping device” any electronic, mechanical, or other apparatus which is intentionally used to intercept a wire or oral communication

(7) “Intercept” the aural acquisition of the contents of any wire or oral communication through the use of any eavesdropping device

(10) “Oral communication” any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation;

(15) “Wire communication” any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.

S.D. Cod. Laws 22-21-1[3]. Trespassing with intent to eavesdrop – Installation or use of unauthorized eavesdropping device.

Any person who, except as authorized by law:

(1) Trespasses on property with intent to subject anyone to eavesdropping or other surveillance in a private place; or

(2) Installs 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;

is guilty of a Class 1 misdemeanor.

S.D. Cod. Laws 22-21-3[4]. Window peeping on private property of another

No person may enter the private property of another and peek in the door or window of any inhabited building or structure located thereon, without having lawful purpose with the owner or occupant thereof. A violation of this section is a Class 1 misdemeanor.

 

 

[1] Source: http://law.justia.com/codes/south-dakota/2014/title-23a/chapter-35a/section-23a-35a-20/

[2] Source: http://law.justia.com/codes/south-dakota/2014/title-23a/chapter-35a/section-23a-35a-1/

[3] Source: http://law.justia.com/codes/south-dakota/2014/title-22/chapter-21/section-22-21-1/

[4] Source: http://law.justia.com/codes/south-dakota/2014/title-22/chapter-21/section-22-21-3/