Text of SD SB 18 (2025)

25.127.22 100th Legislative Session 18 2025 South Dakota Legislature Senate Bill 18 Introduced by: Senators Kolbeck (Steve), Duhamel, Foster, Karr, Larson, Mehlhaff, and Wheeler and Representatives Weisgram, Arlint, Duffy, Emery, Soye, and Venhuizen at the request of the Study Committee on Artificial Intelligence and Regulation of Internet Access by Minors 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 5, 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 that, in the regular course of the website's trade or 10 business, creates, hosts, or makes available content, of which a substantial portion 11 is material that is harmful to 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 25.127.22 2 18 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 any 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 25.127.22 3 18 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 that reliably and accurately determines if a user of a 18 covered platform is a minor and prevents a minor from accessing the 19 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; 28 (15)(17) "Sexual excitement," the condition of human male or female genitals when in 29 a state of sexual stimulation or arousal; and 30 (18) "Substantial portion," an amount of content created by or hosted or otherwise 31 made available on a website that is at least thirty-three and one-third percent of 32 the total content created by or hosted or otherwise made available on the website. 33 Section 2. That § 22-24-29 be AMENDED: 34 25.127.22 4 18 Underscores indicate new language. Overstrikes indicate deleted language. 22-24-29. A person is guilty of disseminating material that is harmful to minors if 1 that person knowingly gives or makes available to a minor or promotes or possesses with 2 intent to promote to minors, or if that person knowingly sells or loans to a minor for 3 monetary consideration, any material described in subdivision § 22-24-27(4) § 22-24-27. 4 Section 3. That § 22-24-58 be AMENDED: 5 22-24-58. For the purposes of §§ 22-24-55 to 22-24-59, inclusive, obscene 6 material is defined pursuant to subdivision 22-24-27(11) § 22-24-27. 7 Section 4. That a NEW SECTION be added to chapter 22-24: 8 A covered platform must implement reasonable age verification on the platform to 9 substantiate the age of any individual who attempts to access material that is harmful to 10 minors on the covered platform and prevent a minor's access to that material. 11 A violation of this section is a Class 1 misdemeanor. A subsequent violation of this 12 section by the same covered platform is a Class 6 felony. 13 Section 5. That a NEW SECTION be added to chapter 22-24: 14 A covered platform or a third party that performs the age verification required by 15 section 4 of this Act on behalf of a covered platform may not retain any identifying 16 information of an individual after the covered platform grants the individual access to the 17 material. 18 A violation of this section is a Class 1 misdemeanor. A subsequent violation of this 19 section is a Class 6 felony. 20 Section 6. That a NEW SECTION be added to chapter 22-24: 21 If a covered platform is not in substantial compliance with the requirements of 22 section 4 or 5 of this Act, the attorney general or the state's attorney in the county where 23 the affected minor resides must provide written notice to the covered platform before 24 initiating an action pursuant to sections 4, 5, or 7 of this Act. The attorney general or 25 state's attorney shall identify in the notice the specific provision that is alleged to have 26 been violated, and what measures must be implemented by the covered platform to 27 prevent future violations. 28 If the covered platform implements the measures stated in the notice and provides 29 the attorney general or notifying state's attorney a written statement under oath that the 30 25.127.22 5 18 Underscores indicate new language. Overstrikes indicate deleted language. measures stated in the notice have been implemented, within ninety days of the notice 1 provided under this section, the covered platform is not criminally liable or liable for a civil 2 penalty for any cured violation of section 4 or 5 of this Act. 3 Section 7. That a NEW SECTION be added to chapter 22-24: 4 Any covered platform found to be in violation of section 4 or 5 of this Act is subject 5 to an injunction and liable for a civil penalty of not more than five thousand dollars per 6 incident of a minor accessing material that is harmful to minors. The civil penalty may be 7 assessed and recovered only in a civil action brought by the attorney general or state's 8 attorney in the county where the affected minor resides. The attorney general or state's 9 attorney shall forward any civil penalty collected under this section to the state treasurer, 10 for deposit in the state general fund. 11 Nothing in this section may be construed to serve as the basis for a new private 12 right of action for any violation of section 4 or 5 of this Act. 13 Section 8. That a NEW SECTION be added to chapter 22-24: 14 The provisions of sections 4 to 7, inclusive, of this Act do not apply to any general- 15 purpose search engine, internet service provider or its affiliates or subsidiaries, or cloud 16 service provider. 17