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Can I tape in South Dakota?

S.D. Codified Laws � 23A-35A-20: It is a felony to intercept or record any wire or oral communication unless the person recording is a sender or receiver of the wire communication or has obtained the consent of either the sender or receiver, or unless the person recording is present during the oral communication or has obtained the consent of one party to the oral communication.

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication. See definition of "oral communication,"S.D. Codified Laws � 23A-35A-1.

Generally, the consent of one participant in any communication to the recording removes it from the type of interception prohibited under the South Dakota wiretapping statute. South Dakota v. Braddock, 452 N.W.2d 785 (S.D. 1990); Midwest Motor Sports, Inc. v. Arctic Cat Sales, Inc., 144 F. Supp.2d 1147 (D. S.D. 2001).

Using a hidden camera in a "private place" without consent is a misdemeanor. S.D. Codified Laws � 22-21-1. A "private place" is a place where one may reasonably expect to be safe from intrusion or surveillance, but not a place to which the public has access. S.D. Codified Laws � 22-1-2.

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