Text of SD HB 1053 (2025)

25.172.17 100th Legislative Session 1053 2025 South Dakota Legislature House Bill 1053 Introduced by: Representative Soye Underscores indicate new language. Overstrikes indicate deleted language. An Act to require age verification by websites containing material that is harmful to 1 minors, and to provide a penalty therefor. 2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3 Section 1. That § 22-24-27 be AMENDED: 4 22-24-27. Terms used in §§ 22-24-25 to 22-24-37, inclusive, and sections 2 to 5 8, inclusive, of this Act, mean: 6 (1) "Contemporary community standard," the contemporary community standard of 7 the state in which the question of obscenity is to be tested, by the average person, 8 of the state; 9 (2) "Covered platform," a website for which it is in the regular course of the website's 10 trade or business to create, host, or make available material that is harmful to 11 minors; 12 (2)(3) "Distributed," to transfer possession of, whether with or without consideration; 13 (3)(4) "Exhibit," to show or display; 14 (4)(5) "Harmful to minors," includes in its meaning the quality of any material or of any 15 performance or of any description or representation, in whatever form, of nudity, 16 sexual conduct, sexual excitement, or sado-masochistic abuse, if it: 17 (a) Predominantly appeals to the prurient, shameful, or morbid interest of 18 minors; and 19 (b) Is patently offensive to prevailing standards in the adult community as a 20 whole with respect to what is suitable material for minors; and 21 (c) Is without serious literary, artistic, political, or scientific value; 22 (5)(6) "Magistrate," any circuit court or magistrate judge; 23 (6)(7) "Material," anything tangible which that is harmful to minors, whether derived 24 through the medium of reading, observation, or sound; 25 25.172.17 2 1053 Underscores indicate new language. Overstrikes indicate deleted language. (7)(8) "Matter" or "material," any book, magazine, newspaper, or other printed or written 1 material; or any picture, drawing, photograph, motion picture, or other pictorial 2 representation; or any statue or other figure; or recording, transcription or 3 mechanical, chemical, or electrical reproduction; or any other articles, equipment, 4 machines, or materials; 5 (8)(9) "Minor," any person less than eighteen years of age; 6 (9)(10) "Nudity," within the meaning of subdivision (4) of this section, the showing of 7 the human male or female genitals, pubic area, or buttocks with less than a full 8 opaque covering, or the showing of the female breast with less than a full opaque 9 covering or any portion thereof below the top of the nipple, or the depiction of 10 covered male genitals in a discernibly turgid state; 11 (10)(11) "Obscene live conduct," any physical human body activity, whether performed 12 or engaged in alone or with other persons, including singing, speaking, dancing, 13 acting, simulation, or pantomiming, where: 14 (a) The dominant theme of such conduct, taken as a whole, appeals to a 15 prurient interest; 16 (b) The conduct is patently offensive because it affronts contemporary 17 community standards relating to the description or representation of sexual 18 matters; and 19 (c) The conduct is without serious literary, artistic, political, or scientific value. 20 In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of 21 production, presentation, advertising, or exhibition indicate that live 22 conduct is being commercially exploited by the defendant for the sake of its 23 prurient appeal, such the evidence is probative with respect to the nature 24 of the conduct; 25 (11)(12) "Obscene material," material: 26 (a) The dominant theme of which, taken as a whole, appeals to the prurient 27 interest; 28 (b) Which That is patently offensive because it affronts contemporary 29 community standards relating to the description or representation of sado- 30 masochistic abuse or sexual conduct; and 31 (c) Lacks That lacks serious literary, artistic, political, or scientific value. 32 In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of 33 production, presentation, sale, dissemination, or publicity indicate that the 34 matter is being commercially exploited by the defendant for the sake of its 35 25.172.17 3 1053 Underscores indicate new language. Overstrikes indicate deleted language. prurient appeal, such the evidence is probative with respect to the nature 1 of the matter; 2 (12)(13) "Prurient interest," a shameful or morbid interest in nudity, sex, or excretion, 3 which that goes substantially beyond customary limits of candor in description or 4 representation of such matters. If it appears from the character of the material or 5 the circumstances of its dissemination that the subject matter is designed for a 6 specially susceptible audience or clearly defined deviant sexual group, the appeal 7 of the subject matter shall must be judged with reference to such audience or 8 group; 9 (14) "Reasonable age verification," any method by which a covered platform confirms 10 that an individual attempting to access material that is harmful to minors is at least 11 eighteen years of age by verifying: 12 (a) A state-issued driver license or non-driver identification card; 13 (b) A military identification card; 14 (c) The individual's bank account information; 15 (d) A debit or credit card from the individual that requires the individual in 16 ownership of the card to be at least eighteen years of age; or 17 (e) Any other method or document that reliably and accurately indicates if a 18 user of a covered platform is a minor and prevents a minor from accessing 19 the content of a covered platform; 20 (13)(15) "Sado-masochistic abuse," flagellation or torture by or upon a person who is 21 nude or clad in undergarments, a mask, or bizarre costume,; or the condition of 22 being fettered, bound, or otherwise physically restrained on the part of one who is 23 nude or so clothed; 24 (14)(16) "Sexual conduct," within the meaning of subdivision (4) of this section, any act 25 of masturbation, homosexuality, sexual intercourse, or physical contact with a 26 person's clothed or unclothed genitals, pubic area, buttocks, or if such person be 27 a female, the breast; and 28 (15)(17) "Sexual excitement," the condition of human male or female genitals when in 29 a state of sexual stimulation or arousal. 30 Section 2. That § 22-24-29 be AMENDED: 31 22-24-29. A person is guilty of disseminating material that is harmful to minors if 32 that the person knowingly gives or makes available to a minor or promotes or possesses 33 with intent to promote to minors, or if that the person knowingly sells or loans to a minor 34 25.172.17 4 1053 Underscores indicate new language. Overstrikes indicate deleted language. for monetary consideration, any material described that is harmful to minors as described 1 in subdivision § 22-24-27(4) subdivisions 22-24-27(5). 2 Section 3. That § 22-24-58 be AMENDED: 3 22-24-58. For the purposes of §§ 22-24-55 to 22-24-59, inclusive, obscene 4 material is defined pursuant to subdivision 22-24-27(11) subdivision 22-24-27(12). 5 Section 4. That a NEW SECTION be added to chapter 22-24: 6 A covered platform must implement reasonable age verification on the platform to 7 verify the age of any individual who attempts to access material that is harmful to minors 8 on the platform and prevent a minor's access to that material. 9 A violation of this section is a Class 1 misdemeanor. A subsequent violation of this 10 section by the same covered platform is a Class 6 felony. 11 Section 5. That a NEW SECTION be added to chapter 22-24: 12 A covered platform or third party that performs the age verification required by 13 section 4 of this Act, on behalf of a covered platform, may not sell or retain any identifying 14 information of an individual collected by the covered platform or third party for the age 15 verification. 16 A violation of this section is a Class 1 misdemeanor. A subsequent violation of this 17 section is a Class 6 felony. 18 Section 6. That a NEW SECTION be added to chapter 22-24: 19 If a covered platform is not in substantial compliance with the requirements of 20 section 4 or 5 of this Act, the attorney general must provide written notice to the covered 21 platform before initiating an action pursuant to section 4, 5, or 7 of this Act. The attorney 22 general shall identify in the notice the specific provision that is alleged to have been 23 violated, and what measures must be implemented by the covered platform to prevent 24 future violations. 25 If the covered platform implements the measures stated in the notice and provides 26 the attorney general a written statement under oath that the measures stated in the notice 27 have been implemented, within ninety days of the notice provided under this section, the 28 covered platform is not criminally liable or liable for a civil penalty for any cured violation 29 of section 4 or 5 of this Act. 30 25.172.17 5 1053 Underscores indicate new language. Overstrikes indicate deleted language. Section 7. That a NEW SECTION be added to chapter 22-24: 1 Any covered platform found to be in violation of section 4 or 5 of this Act is subject 2 to an injunction and liable for a civil penalty of not more than five thousand dollars for 3 each separate instance that the covered platform fails to perform reasonable age 4 verification. The civil penalty may be assessed and recovered only in a civil action brought 5 by the attorney general. The attorney general shall forward any civil penalty collected 6 under this section to the state treasurer, for deposit in the state general fund. 7 Nothing in this section may be construed to serve as the basis for a new private 8 right of action under sections 4 or 5 of this Act. 9 Section 8. That a NEW SECTION be added to chapter 22-24: 10 The provisions of sections 4 to 7, inclusive, of this Act do not apply to any general- 11 purpose search engine, internet service provider or its affiliates or subsidiaries, or cloud 12 service provider. 13 14

25.172.19 100th Legislative Session 1053 2025 South Dakota Legislature House Bill 1053 ENROLLED AN ACT ENTITLED An Act to require age verification by websites containing material that is harmful to minors, and to provide a penalty therefor. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: Section 1. That § 22-24-27 be AMENDED: 22-24-27. Terms used in §§ 22-24-25 to 22-24-37, inclusive, and sections 4 to 8, inclusive, of this Act, mean: (1) "Contemporary community standard," the contemporary community standard of the state in which the question of obscenity is to be tested, by the average person, of the state; (2) "Covered platform," a website for which it is in the regular course of the website's trade or business to create, host, or make available material that is harmful to minors; (3) "Distributed," to transfer possession of, whether with or without consideration; (4) "Exhibit," to show or display; (5) "Harmful to minors," includes in its meaning the quality of any material or of any performance or of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, if it: (a) Predominantly appeals to the prurient, shameful, or morbid interest of minors; (b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (c) Is without serious literary, artistic, political, or scientific value; (6) "Magistrate," any circuit court or magistrate judge; (7) "Material," anything tangible that is harmful to minors, whether derived through the medium of reading, observation, or sound; 25.172.19 2 1053 HB1053 ENROLLED (8) "Matter" or "material," any book, magazine, newspaper, or other printed or written material; any picture, drawing, photograph, motion picture, or other pictorial representation; any statue or other figure; recording, transcription or mechanical, chemical, or electrical reproduction; or any other articles, equipment, machines, or materials; (9) "Minor," any person less than eighteen years of age; (10) "Nudity," within the meaning of subdivision (5) of this section, the showing of the human male or female genitals, pubic area, or buttocks with less than a full opaque covering, the showing of the female breast with less than a full opaque covering or any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state; (11) "Obscene live conduct," any physical human body activity, whether performed or engaged in alone or with other persons, including singing, speaking, dancing, acting, simulation, or pantomiming, where: (a) The dominant theme of such conduct, taken as a whole, appeals to a prurient interest; (b) The conduct is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) The conduct is without serious literary, artistic, political, or scientific value. In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, advertising, or exhibition indicate that live conduct is being commercially exploited by the defendant for the sake of its prurient appeal, the evidence is probative with respect to the nature of the conduct; (12) "Obscene material," material: (a) The dominant theme of which, taken as a whole, appeals to the prurient interest; (b) That is patently offensive because it affronts contemporary community standards relating to the description or representation of sado-masochistic abuse or sexual conduct; and (c) That lacks serious literary, artistic, political, or scientific value. In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of production, presentation, sale, dissemination, or publicity indicate that the matter is being commercially exploited by the defendant for the sake of its 25.172.19 3 1053 HB1053 ENROLLED prurient appeal, the evidence is probative with respect to the nature of the matter; (13) "Prurient interest," a shameful or morbid interest in nudity, sex, or excretion, that goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for a specially susceptible audience or clearly defined deviant sexual group, the appeal of the subject matter must be judged with reference to such audience or group; (14) "Reasonable age verification," any method by which a covered platform confirms that an individual attempting to access material that is harmful to minors is at least eighteen years of age by verifying: (a) A state-issued driver license or non-driver identification card; (b) The individual's bank account information; (c) A debit or credit card from the individual that requires the individual in ownership of the card to be at least eighteen years of age; or (d) Any other method or document that reliably and accurately indicates if a user of a covered platform is a minor and prevents a minor from accessing the content of a covered platform; (15) "Sado-masochistic abuse," flagellation or torture by or upon a person who is nude or clad in undergarments, a mask, or bizarre costume; or the condition of being fettered, bound, or otherwise physically restrained on the part of one who is nude or so clothed; (16) "Sexual conduct," within the meaning of subdivision (5) of this section, any act of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or if such person be a female, the breast; and (17) "Sexual excitement," the condition of human male or female genitals when in a state of sexual stimulation or arousal. Section 2. That § 22-24-29 be AMENDED: 22-24-29. A person is guilty of disseminating material that is harmful to minors if the person knowingly gives or makes available to a minor or promotes or possesses with intent to promote to minors, or if the person knowingly sells or loans to a minor for monetary consideration, any material that is harmful to minors as described in subdivision 22-24-27(5). 25.172.19 4 1053 HB1053 ENROLLED Section 3. That § 22-24-58 be AMENDED: 22-24-58. For the purposes of §§ 22-24-55 to 22-24-59, inclusive, obscene material is defined pursuant to subdivision 22-24-27(12). Section 4. That a NEW SECTION be added to chapter 22-24: A covered platform must implement reasonable age verification on the platform to verify the age of any individual who attempts to access material that is harmful to minors on the platform and prevent a minor's access to that material. A violation of this section is a Class 1 misdemeanor. A subsequent violation of this section by the same covered platform is a Class 6 felony. Section 5. That a NEW SECTION be added to chapter 22-24: A covered platform or third party that performs the age verification required by section 4 of this Act, on behalf of a covered platform, may not sell or retain any identifying information of an individual collected by the covered platform or third party for the age verification. A violation of this section is a Class 1 misdemeanor. A subsequent violation of this section is a Class 6 felony. Section 6. That a NEW SECTION be added to chapter 22-24: If a covered platform is not in substantial compliance with the requirements of section 4 or 5 of this Act, the attorney general must provide written notice to the covered platform before initiating an action pursuant to section 4, 5, or 7 of this Act. The attorney general shall identify in the notice the specific provision that is alleged to have been violated, and what measures must be implemented by the covered platform to prevent future violations. If the covered platform implements the measures stated in the notice and provides the attorney general a written statement under oath that the measures stated in the notice have been implemented, within ninety days of the notice provided under this section, the covered platform is not criminally liable or liable for a civil penalty for any cured violation of section 4 or 5 of this Act. Section 7. That a NEW SECTION be added to chapter 22-24: 25.172.19 5 1053 HB1053 ENROLLED Any covered platform found to be in violation of section 4 or 5 of this Act is subject to an injunction and liable for a civil penalty of not more than five thousand dollars for each separate instance that the covered platform fails to perform reasonable age verification. The civil penalty may be assessed and recovered only in a civil action brought by the attorney general. The attorney general shall forward any civil penalty collected under this section to the state treasurer, for deposit in the state general fund. Nothing in this section may be construed to serve as the basis for a new private right of action under sections 4 or 5 of this Act. Section 8. That a NEW SECTION be added to chapter 22-24: The provisions of sections 4 to 7, inclusive, of this Act do not apply to any general- purpose search engine, internet service provider or its affiliates or subsidiaries, or cloud service provider. 25.172.19 6 1053 HB1053 ENROLLED An Act to require age verification by websites containing material that is harmful to minors, and to provide a penalty therefor. I certify that the attached Act originated in the: House as Bill No. 1053 Chief Clerk Speaker of the House Attest: Chief Clerk President of the Senate Attest: Secretary of the Senate House Bill No. 1053 File No. ____ Chapter No. ______ Received at this Executive Office this _____ day of _____________, 2025 at ____________M. By for the Governor The attached Act is hereby approved this ________ day of ______________, A.D., 2025 Governor STATE OF SOUTH DAKOTA, ss. Office of the Secretary of State Filed ____________, 2025 at _________ o'clock __M. Secretary of State By Asst. Secretary of State