Text of SD HB 1257 (2024)

24.238.11 99th Legislative Session 1257 2024 South Dakota Legislature House Bill 1257 Introduced by: Representative Soye Underscores indicate new language. Overstrikes indicate deleted language. An Act to require age verification by websites containing material harmful to minors. 1 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 2 Section 1. That § 22-24-27 be AMENDED: 3 22-24-27. Terms used in §§ 22-24-25 to 22-24-37, inclusive, and sections 2 to 4 6, inclusive, of this Act, mean: 5 (1) "Contemporary community standard," the contemporary community standard of 6 the state in which the question of obscenity is to be tested, by the average person, 7 of the state; 8 (2) "Covered platform," a website for which it is in the regular course of trade or 9 business to create, host, or make available material harmful to minors; 10 (2)(3) "Distributed," to transfer possession of, whether with or without consideration; 11 (3)(4) "Exhibit," to show or display; 12 (4)(5) "Harmful to minors," includes in its meaning the quality of any material or of any 13 performance or of any description or representation, in whatever form, of nudity, 14 sexual conduct, sexual excitement, or sado-masochistic abuse, if it: 15 (a) Predominantly appeals to the prurient, shameful, or morbid interest of 16 minors; and 17 (b) Is patently offensive to prevailing standards in the adult community as a 18 whole with respect to what is suitable material for minors; and 19 (c) Is without serious literary, artistic, political, or scientific value; 20 (5)(6) "Magistrate," any circuit court or magistrate judge; 21 (6)(7) "Material," anything tangible which is harmful to minors, whether derived through 22 the medium of reading, observation, or sound; 23 (7)(8) "Matter" or "material," any book, magazine, newspaper, or other printed or written 24 material; or any picture, drawing, photograph, motion picture, or other pictorial 25 representation; or any statue or other figure; or recording, transcription or 26 24.238.11 2 1257 Underscores indicate new language. Overstrikes indicate deleted language. mechanical, chemical, or electrical reproduction; or any other articles, equipment, 1 machines, or materials; 2 (8)(9) "Minor," any person less than eighteen years of age; 3 (9)(10) "Nudity," within the meaning of subdivision (4) of this section, the showing of 4 the human male or female genitals, pubic area, or buttocks with less than a full 5 opaque covering, or the showing of the female breast with less than a full opaque 6 covering or any portion thereof below the top of the nipple, or the depiction of 7 covered male genitals in a discernibly turgid state; 8 (10)(11) "Obscene live conduct," any physical human body activity, whether performed 9 or engaged in alone or with other persons, including singing, speaking, dancing, 10 acting, simulation, or pantomiming, where: 11 (a) The dominant theme of such conduct, taken as a whole, appeals to a 12 prurient interest; 13 (b) The conduct is patently offensive because it affronts contemporary 14 community standards relating to the description or representation of sexual 15 matters; and 16 (c) The conduct is without serious literary, artistic, political, or scientific value. 17 In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of 18 production, presentation, advertising, or exhibition indicate that live 19 conduct is being commercially exploited by the defendant for the sake of its 20 prurient appeal, such evidence is probative with respect to the nature of the 21 conduct; 22 (11)(12) "Obscene material," material: 23 (a) The dominant theme of which, taken as a whole, appeals to the prurient 24 interest; 25 (b) Which is patently offensive because it affronts contemporary community 26 standards relating to the description or representation of sado-masochistic 27 abuse or sexual conduct; and 28 (c) Lacks serious literary, artistic, political, or scientific value. 29 In prosecutions under §§ 22-24-27 to 22-24-37, inclusive, if circumstances of 30 production, presentation, sale, dissemination, or publicity indicate that the 31 matter is being commercially exploited by the defendant for the sake of its 32 prurient appeal, such evidence is probative with respect to the nature of the 33 matter; 34 24.238.11 3 1257 Underscores indicate new language. Overstrikes indicate deleted language. (12)(13) "Prurient interest," a shameful or morbid interest in nudity, sex, or excretion, 1 which goes substantially beyond customary limits of candor in description or 2 representation of such matters. If it appears from the character of the material or 3 the circumstances of its dissemination that the subject matter is designed for a 4 specially susceptible audience or clearly defined deviant sexual group, the appeal 5 of the subject matter shall be judged with reference to such audience or group; 6 (13)(14) "Reasonable age verification," any reliable and accurate method by which a 7 covered platform confirms that an individual attempting to access material harmful 8 to minors is eighteen years of age or older by verifying any means of identification, 9 including: 10 (a) A state-issued driver or non-driver identification card; 11 (b) A military identification card; 12 (c) Bank account information; or 13 (d) Credit or debit card information, except cards that do not require the 14 individual in ownership of the account to be eighteen years of age or older; 15 (15) "Sado-masochistic abuse," flagellation or torture by or upon a person who is nude 16 or clad in undergarments, a mask or bizarre costume, or the condition of being 17 fettered, bound, or otherwise physically restrained on the part of one who is nude 18 or so clothed; 19 (14)(16) "Sexual conduct," within the meaning of subdivision (4) of this section, any act 20 of masturbation, homosexuality, sexual intercourse, or physical contact with a 21 person's clothed or unclothed genitals, pubic area, buttocks, or if such person be 22 a female, the breast; 23 (15)(17) "Sexual excitement," the condition of human male or female genitals when in 24 a state of sexual stimulation or arousal. 25 Section 2. That a NEW SECTION be added to chapter 22-24: 26 It is unlawful for a covered platform to publish or distribute material harmful to 27 minors on the internet unless the platform performs a reasonable age verification to verify 28 the age of an individual attempting to access the material and prevent access by minors 29 to the material. Any parent, guardian, or custodian of a minor may bring a civil action 30 against a covered platform for violating this section and shall recover damages in the 31 amount of five thousand dollars for each separate instance that the covered platform fails 32 to perform reasonable age verification, actual damages resulting from a minor accessing 33 the material, court costs, and reasonable attorney fees. 34 24.238.11 4 1257 Underscores indicate new language. Overstrikes indicate deleted language. Section 3. That a NEW SECTION be added to chapter 22-24: 1 Any covered platform or third party that performs the required age verification 2 pursuant to section 2 of this Act may not retain any identifying information of the individual 3 after access has been granted to the material. Any covered platform or third party that 4 knowingly retains identifying information of the individual is liable to the individual for 5 damages for retaining the identifying information, including court costs and reasonable 6 attorney fees. 7 Section 4. That a NEW SECTION be added to chapter 22-24: 8 The attorney general may investigate an alleged violation under sections 2 to 6, 9 inclusive, of this Act and initiate a civil action on behalf of the state to assess civil penalties. 10 Prior to bringing a complaint in court, the attorney general must notify the covered 11 platform and provide at least thirty days for the covered platform to comply with sections 12 2 to 6, inclusive, this Act. 13 Nothing in this section limits the right of any private person to pursue a civil action 14 under sections 2 to 6, inclusive, of this Act. 15 Section 5. That a NEW SECTION be added to chapter 22-24: 16 Any waiver, purported waiver, or estoppel of a person's right to bring a civil action 17 under sections 2 to 6, inclusive, of this Act is void. No court or arbitrator may enforce or 18 give effect to the waiver or estoppel, notwithstanding any choice-of-law or other provision 19 in any contract or other agreement. 20 Section 6. That a NEW SECTION be added to chapter 22-24: 21 Sections 2 to 6, inclusive, of this Act does not apply to any general purpose search 22 engine, internet service provider or its affiliates or subsidiaries, or cloud service provider. 23 Section 7. That § 22-24-29 be AMENDED: 24 22-24-29. A person is guilty of disseminating material harmful to minors if that 25 person knowingly gives or makes available to a minor or promotes or possesses with intent 26 to promote to minors, or if that person knowingly sells or loans to a minor for monetary 27 consideration, any material described in subdivision § 22-24-27(4) 22-24-27(5). 28 Section 8. That § 22-24-58 be AMENDED: 29 24.238.11 5 1257 Underscores indicate new language. Overstrikes indicate deleted language. 22-24-58. For the purposes of §§ 22-24-55 to 22-24-59, inclusive, obscene 1 material is defined pursuant to subdivision 22-24-27(11) 22-24-27(12). 2