AN ACT
ENTITLED, An Act to
protect the children of South Dakota against sexual exploitation by
criminalizing certain conduct involving children and the internet, to provide for civil remedies, to
require certain people to report suspected violations, and to revise certain provisions regarding
the unlawful use of computers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 22-22-22 be repealed.
Section 2. That § 22-22-23 be repealed.
Section 3. That § 22-22-23.1 be repealed.
Section 4. That § 22-22-24 be amended to read as follows:
22-22-24. Any person who sells, or displays for sale, any book, magazine, pamphlet, slide, photograph, film, or electronic or digital media image depicting a minor engaging in a prohibited sexual act, or engaging in an activity that involves nudity, or in the simulation of any such act is guilty of a Class 6 felony.
Section 5. That § 22-19A-1 be amended to read as follows:
22-19A-1. Any person:
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 22-22-22 be repealed.
Section 2. That § 22-22-23 be repealed.
Section 3. That § 22-22-23.1 be repealed.
Section 4. That § 22-22-24 be amended to read as follows:
22-22-24. Any person who sells, or displays for sale, any book, magazine, pamphlet, slide, photograph, film, or electronic or digital media image depicting a minor engaging in a prohibited sexual act, or engaging in an activity that involves nudity, or in the simulation of any such act is guilty of a Class 6 felony.
Section 5. That § 22-19A-1 be amended to read as follows:
22-19A-1. Any person:
(1)
Who willfully, maliciously, and repeatedly follows or harasses another person;
(2)
Who makes a credible threat to another person with the intent to place that person in
reasonable fear of death or great bodily injury; or
(3)
Who willfully, maliciously, and repeatedly harasses another person by means of any verbal,
electronic, digital media, mechanical, telegraphic, or written communication;
is guilty of the crime of stalking. Stalking is a Class 1 misdemeanor.
Section 6. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
is guilty of the crime of stalking. Stalking is a Class 1 misdemeanor.
Section 6. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Terms used in this Act mean:
(1) "Adult," a person eighteen years of age or older;
(2) "Child pornography," any image or visual depiction of a minor engaged in prohibited
sexual acts;
(3) "Child" or "minor," any person under the age of eighteen years;
(4) "Computer," an electronic, magnetic, optical, electrochemical, or other high-speed data
processing device performing logical, arithmetic, or storage functions and includes any
data storage facility or communications facility directly related to or operating in
conjunction with such device, including wireless communication devices such as cellular
phones. The term also includes any on-line service, internet service, or internet bulletin
board;
(5) "Deviant sexual intercourse," sexual conduct between persons not married to each other
consisting of contact between the penis and the anus, the mouth and the penis, or the
mouth and the vulva;
(6) "Digital media," any electronic storage device, including a floppy disk or other magnetic
storage device or any compact disc that has memory and the capacity to store audio,
video, or written materials;
(7) "Harmful to minors," any reproduction, imitation, characterization, description, visual
depiction, exhibition, presentation, or representation, of whatever kind or form, depicting
nudity, sexual conduct, or sexual excitement 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) Taken as a whole, is without serious literary, artistic, political, or scientific value for
minors.
This term does not include a mother's breast-feeding of her baby;
(8) "Masochism," sexual gratification achieved by a person through, or the association of
sexual activity with, submission or subjection to physical pain, suffering, humiliation,
torture, or death;
(9) "Nudity," the showing or the simulated showing of the human male or female genitals,
pubic area, or buttocks with less than a fully opaque covering; or the showing of the
female breast with less than a fully opaque covering of any portion thereof below the top
of the nipple; or the depiction of covered male genitals in a discernibly turgid state for the
purpose of creating sexual excitement. This term does not include a mother's breast-
feeding of her baby irrespective of whether or not the nipple is covered during or incidental
to feeding;
(10) "Obscene," the status of material which:
(a) The average person, applying contemporary community standards, would find,
taken as a whole, appeals to the prurient interest;
(b) Depicts or describes, in a patently offensive way, prohibited sexual acts; and
(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.
This term does not include a mother's breast-feeding of her baby;
(11) "Person," includes individuals, children, firms, associations, joint ventures, partnerships,
estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups
or combinations;
(12) "Sadism," sexual gratification achieved through, or the association of sexual activity with,
the infliction of physical pain, suffering, humiliation, torture, or death;
(13) "Sadomasochistic abuse," flagellation or torture by or upon a minor, or the condition of
being fettered, bound, or otherwise physically restrained, for the purpose of deriving
sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from
inflicting harm on another or receiving such harm oneself;
(14) "Sexual battery," oral, anal, or vaginal penetration by, or union with, the sexual organ of
another or the anal or vaginal penetration of another by any other object. This term does
not include an act done for a bona fide medical purpose;
(15) "Sexual bestiality," any sexual act, actual or simulated, between a person and an animal
involving the sex organ of the one and the mouth, anus, or vagina of the other;
(16) "Prohibited sexual act," actual or simulated sexual intercourse, deviant sexual intercourse,
sadism, masochism, sexual bestiality, incest, masturbation, or sadomasochistic abuse;
actual or simulated exhibition of the genitals or the pubic or rectal area in a lewd or
lascivious manner; actual physical contact with a person's clothed or unclothed genitals,
pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or
gratify the sexual desire of either party; defecation or urination for the purpose of creating
sexual excitement in the viewer; or any act or conduct which constitutes sexual battery or
simulates that sexual battery is being or will be committed. The term includes encouraging,
aiding, abetting or enticing any person to commit any such acts as provided in this
subdivision. The term does not include a mother's breast-feeding of her baby;
(17) "Sexual excitement," the condition of the human male or female genitals if in a state of
sexual stimulation or arousal;
(18) "Sexually oriented material," any book, article, magazine, publication, visual depiction or
written matter of any kind or any drawing, etching, painting, photograph, motion picture
film, or sound recording that depicts sexual activity, actual or simulated, involving human
beings or human beings and animals, that exhibits uncovered human genitals or the pubic
region in a lewd or lascivious manner, or that exhibits human male genitals in a discernibly
turgid state, even if completely and opaquely covered;
(19) "Simulated," the explicit depiction of conduct described in subdivision (16) of this section
that creates the appearance of such conduct and that exhibits any uncovered portion of the
breasts, genitals, or anus;
(20) "Visual depiction," any developed and undeveloped film, photograph, slide and videotape,
and any photocopy, drawing, printed or written material, and any data stored on computer
disk, digital media, or by electronic means that are capable of conversion into a visual
image.
Section 7. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 7. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
A person is guilty of possessing, manufacturing, or distributing child pornography if the person:
(1) Creates any visual depiction of a minor engaging in a prohibited sexual act, or in the
simulation of such an act;
(2) Causes or knowingly permits the creation of any visual depiction of a minor engaged in a
prohibited sexual act, or in the simulation of such an act; or
(3) Knowingly possesses, distributes, or otherwise disseminates any visual depiction of a
minor engaging in a prohibited sexual act, or in the simulation of such an act.
Consent to performing these proscribed acts by a minor or a minor's parent, guardian, or
custodian, or mistake as to the minor's age is not a defense to a charge of violating this section.
A violation of this section is a Class 4 felony. If a person is convicted of a second or subsequent
violation of this section within fifteen years of the prior conviction, the violation is a Class 3 felony.
Further, the court shall order a mental examination of the person. The examiner shall report to the
court whether treatment of the person is indicated.
Section 8. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 8. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
A person is guilty of sexual exploitation of a minor if the person causes or knowingly permits a
minor to engage in an activity that:
(1) Is harmful to minors, or in the simulation of such an activity;
(2) Involves nudity, or in the simulation of such an activity; or
(3) Is obscene, or in the simulation of such an activity.
Consent to performing these proscribed acts by a minor or a minor's parent, guardian, or
custodian, or mistake as to the minor's age is not a defense to a charge of violating this section.
A violation of this section is a Class 6 felony. If a person is convicted of a second or subsequent
violation of this section within fifteen years of the prior conviction, the violation a Class 5 felony.
Further, the court shall order a mental examination of the person. The examiner shall report to the
court whether treatment of the person is indicated.
Section 9. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 9. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Terms used in section 10 of this Act mean:
(1) "Minor," a person fifteen years of age or younger; and
(2) "Solicit," to seduce, lure, entice or persuade, or attempt to seduce, lure, entice or persuade
a specific person by telephone, in person, by letter, by using a computer or any other
electronic means.
Section 10. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 10. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
A person is guilty of solicitation of a minor if the person eighteen years of age or older:
(1) Solicits a minor, or someone the person reasonably believes is a minor, to engage in a
prohibited sexual act; or
(2) Knowingly compiles or transmits by means of a computer; or prints, publishes or
reproduces by other computerized means; or buys, sells, receives, exchanges or
disseminates, any notice, statement or advertisement of any minor's name, telephone
number, place of residence, physical characteristics or other descriptive or identifying
information for the purpose of soliciting a minor or someone the person reasonably
believes is a minor to engage in a prohibited sexual act.
The fact that an undercover operative or law enforcement officer was involved in the detection
and investigation of an offense under this section does not constitute a defense to a prosecution under
this section.
Consent to performing a prohibited sexual act by a minor or a minor's parent, guardian, or
custodian, or mistake as to the minor's age is not a defense to a charge of violating this section.
A violation of this section is a Class 6 felony. If a person is convicted of a second or subsequent
violation of this section within fifteen years of the prior conviction, the violation is a Class 5 felony.
Further, the court shall order a mental examination of the person. The examiner shall report to the
court whether treatment of the person is indicated.
Section 11. That § 22-22-30 be amended to read as follows:
22-22-30. For the purposes of § § 22-22-31 to 22-22-39, inclusive, a sex crime is any of the following crimes regardless of the date of the commission of the offense or the date of conviction:
Section 11. That § 22-22-30 be amended to read as follows:
22-22-30. For the purposes of § § 22-22-31 to 22-22-39, inclusive, a sex crime is any of the following crimes regardless of the date of the commission of the offense or the date of conviction:
(1)
Rape as set forth in
§
22-22-1;
(2)
Sexual contact with a minor under sixteen as set forth in
§
22-22-7 if committed by an
adult and the adult is convicted of a felony;
(3)
Sexual contact with a person incapable of consenting as set forth in
§
22-22-7.2 if
committed by an adult;
(4)
Incest as set forth in
§
22-22-19.1 if committed by an adult;
(5)
Possessing, manufacturing, or distributing child pornography as set forth in section 7 of
this Act;
(6)
Sale of child pornography as set forth in section 4 of this Act;
(7)
Sexual exploitation of a minor as set forth in section 8 of this Act;
(8)
Kidnapping, as set forth in
§
22-19-1, if the victim of the criminal act is a minor;
(9)
Promotion of prostitution of a minor as set forth in subdivision 22-23-2(2);
(10)
Criminal pedophilia as set forth in
§
22-22-30.1;
(11)
Felony indecent exposure as set forth in former
§
22-24-1 or indecent exposure as set forth
in
§
22-24-1.2;
(12)
Solicitation of a minor as set forth in section 10 of this Act;
(13) An attempt to commit any of the crimes listed in this section; or
(14)
Any crime committed in a place other than this state which would constitute a sex crime
under this section if committed in this state.
Section 12. That § 23A-27-14.1 be amended to read as follows:
23A-27-14.1. Notwithstanding § § 23A-27-14 and 23A-27-17, any person who has received an order pursuant to § 23A-27-13 for a conviction of subdivision 22-22-1(1), subdivision 22-22-1(5) or § 22-22-7, or violations of sections 4, 7, 8, and 10 of this Act, who is licensed or seeks to be licensed as a certified teacher may have his or her application refused or license revoked as provided in § 13-42-10.
Section 13. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 12. That § 23A-27-14.1 be amended to read as follows:
23A-27-14.1. Notwithstanding § § 23A-27-14 and 23A-27-17, any person who has received an order pursuant to § 23A-27-13 for a conviction of subdivision 22-22-1(1), subdivision 22-22-1(5) or § 22-22-7, or violations of sections 4, 7, 8, and 10 of this Act, who is licensed or seeks to be licensed as a certified teacher may have his or her application refused or license revoked as provided in § 13-42-10.
Section 13. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any person, not a citizen or resident of this state, whose actions or conduct constitute a violation
of this Act, and whose actions or conduct involve a child residing in this state, or someone the person
reasonably believes is a child residing in this state, is for the purpose of this Act deemed to be
transacting business in this state and by that act:
(1) Submits to the jurisdiction of the courts of this state in any civil proceeding commenced
under this Act; and
(2) Constitutes the secretary of state as agent for service of legal process in any civil
proceeding commenced under this Act; and consents that service of legal process shall be
made by serving a copy upon the secretary of state or by filing a copy in the secretary of
state's office, and that this service shall be sufficient service if, within one day after service,
notice of the service and a copy of the process are sent by registered mail by plaintiff to
the person at the person's last-known address and proof of such mailing filed with the clerk
of court within one day after mailing.
The service of legal process upon any person who is subject to the jurisdiction of the courts of
this state, as provided in this section, may also be made by personally serving the summons upon the
person outside this state with the same force and effect as though summons had been personally
served within this state. Such service shall be made in like manner as service within this state. No
order of court is required. An affidavit of the server shall be filed stating the time, manner and place
of service. The court may consider the affidavit, or any other competent proofs, in determining
whether service has been properly made.
Section 14. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 14. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any person, except a minor, who knowingly participates in any conduct proscribed by this Act
is liable for civil damages.
Section 15. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 15. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any of the following persons may bring an action for damages caused by another person's conduct
as proscribed by this Act:
(1) The child;
(2) A parent, legal guardian, or sibling of a victimized child;
(3) A medical facility, insurer, governmental entity, employer, or other entity that funds a
treatment program or employee assistance program for the child or that otherwise
expended money or provided services on behalf of the child;
(4) Any person injured as a result of the willful, reckless, or negligent actions of a person who
knowingly participated in conduct proscribed by this Act.
If the parent or guardian is named as a defendant in the action, the court shall appoint a special
guardian to bring the action on behalf of the child.
Section 16. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 16. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any person entitled to bring an action under section 15 of this Act may seek damages from any
person, except a minor, who knowingly participated in the production or in the chain of distribution
of any visual depiction proscribed by this Act.
Section 17. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 17. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any person entitled to bring an action under section 15 of this Act may recover all of the
following damages:
(1) Economic damages, including the cost of treatment and rehabilitation, medical expenses,
loss of economic or educational potential, loss of productivity, absenteeism, support
expenses, accidents or injury, and any other pecuniary loss proximately caused by the
proscribed conduct;
(2) Noneconomic damages, including physical and emotional pain, suffering, physical
impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of
companionship, services, and consortium, and other nonpecuniary losses proximately
caused by the proscribed conduct;
(3) Exemplary damages;
(4) Attorneys' fees; and
(5) Disbursements.
Section 18. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 18. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Two or more persons may join in one action under this Act as plaintiffs if their respective actions
have at least one common occurrence of proscribed conduct under this Act and if any portion of the
period of such conduct overlaps with the period for every other plaintiff. Two or more persons may
be joined in one action under this Act as defendants if those persons are liable to at least one plaintiff.
Section 19. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 19. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any person against whom a judgment has been rendered under this Act is not eligible to exempt
any property, of whatever kind, from process to levy or process to execute on the judgment. Any
assets sought to satisfy a judgment under this Act that are named in a forfeiture action or have been
seized for forfeiture by any state or federal agency may not be used to satisfy a judgment unless and
until the assets have been released following the conclusion of the forfeiture action or released by the
agency that seized the assets.
Section 20. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 20. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any action for damages under this Act shall be commenced within six years of the time the
plaintiff knew, or had reason to know, of any injury caused by violations of this Act. The knowledge
of a parent, guardian, or custodian may not be imputed to the minor.
For a plaintiff, the statute of limitations under this section is tolled while any potential plaintiff is
incapacitated by minority.
Section 21. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 21. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
On motion by a governmental agency involved in an investigation or prosecution, any civil action
brought under this Act shall be stayed until the completion of the criminal investigation or prosecution
that gave rise to the motion for a stay of the action. The statute of limitations as provided in section
20 of this Act shall be tolled for the time any such stay is in effect.
Section 22. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 22. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any person who is convicted of an offense under this Act shall forfeit to the state the person's
interest in the following and no property right exists in them:
(1) Any photograph, film, videotape, book, digital media or visual depiction that has been
manufactured, distributed, purchased, possessed, acquired, or received in violation of this
Act;
(2) Any material, product, and equipment of any kind that is used or intended for use in
manufacturing, processing, publishing, selling, possessing, or distributing any visual
depiction proscribed by this Act;
(3) Any property that is used, or intended for use, as a container for property described in
subdivisions (1) and (2) of this section, including any computers and digital media;
(4) Any conveyances including aircraft, vehicles, or vessels, that transport, possess, or
conceal, or that is used, or intended for use, to transport, or in any manner facilitate the
transportation, sale, receipt, possession or concealment of any visual depiction proscribed
under this Act;
(5) Any book, record, and research, including microfilm, tape, and data that is used, or
intended for use, in violation of this Act;
(6) Any funds or other things of value used for the purposes of unlawfully purchasing,
attempting to purchase, distributing, or attempting to acquire or distribute any visual
depiction proscribed by this Act;
(7) Any asset, interest, profit, income, and proceed acquired or derived from the unlawful sale
or purchase, attempted sale or purchase, distribution, or attempted distribution of any
visual depiction proscribed by this Act.
Any property described in subdivision (1) of this section shall be deemed contraband and shall be
summarily forfeited to the state. Any other property seized and forfeited shall be used to reimburse
the actual costs of the criminal investigation and prosecution. Any amount over and above the amount
necessary to reimburse for the investigation and prosecution shall be used to satisfy any civil
judgments. The secretary of the Department of Social Services shall promulgate rules, pursuant to
chapter 1-26, to implement the distribution of seized and forfeited assets.
Section 23. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 23. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any person working at or for an internet service provider or other electronic communication
service who has knowledge of or observes, within the scope of the person's professional capacity or
employment, a visual depiction that depicts a minor whom the person knows or reasonably should
know to be under the age of eighteen, engaged in prohibited sexual acts or in the simulation of
prohibited sexual acts, shall report the depiction to his or her employer or supervisor. The depiction
shall then be reported to an appropriate law enforcement agency as soon as reasonably possible. The
provider need not report to law enforcement depictions involving mere nudity of the minor, but shall
report visual depictions involving prohibited sexual acts. This section may not be construed to require
a provider to review all visual depictions received by subscribers or handled by the provider within
the provider's professional capacity or employment.
It is unlawful for any owner or operator of a computer on-line service, internet service, or local
internet bulletin board service knowingly to permit a subscriber to utilize the service to produce or
reproduce visual depictions of prohibited sexual acts with a minor.
A violation of this section is a Class 1 misdemeanor. However, a violation of this section does not
constitute grounds for a civil action for damages against any person.
Section 24. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 24. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any person working at or for a commercial film and photograph print processor who has
knowledge of or observes, within the scope of the processor's professional capacity or employment,
a film, photograph, video tape, negative, slide or other visual depiction that depicts a minor whom
the processor knows or reasonably should know to be under the age of eighteen, engaged in
prohibited sexual acts or in the simulation of prohibited sexual acts, shall report the depiction to his
or her employer or supervisor. The depiction shall then be reported to an appropriate law
enforcement agency as soon as reasonably possible. The processor need not report to law
enforcement depictions involving mere nudity of the minor, but shall report visual depictions
involving prohibited sexual acts. This section may not be construed to require a processor to review
all films, photographs, videotapes, negatives, or slides delivered to the processor within the
processor's professional capacity or employment.
It is unlawful for any owner or operator of a photography or film studio, photograph or film
developing service, photograph or film reproducing service, or video to film reproducing service
knowingly to permit any person to utilize photograph or film reproduction or development services
to produce or reproduce visual depictions of prohibited sexual acts with a minor.
A violation of this section is a Class 1 misdemeanor. However, a violation of this section does not
constitute grounds for a civil action for damages against any person.
Section 25. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 25. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Any commercial computer repair technician who has knowledge of or observes, within the scope
of the technician's professional capacity or employment, a film, photograph, video tape, negative, slide
or other visual depiction of a minor whom the technician knows or reasonably should know to be
under the age of eighteen, engaged in prohibited sexual acts or in the simulation of prohibited sexual
acts, shall report the depiction to an appropriate law enforcement agency as soon as reasonably
possible. The computer repair technician need not report to law enforcement depictions involving
mere nudity of the minor, but shall report visual depictions involving prohibited sexual acts. This
section may not be construed to require a computer repair technician to review all data, disks, or
tapes delivered to the computer repair technician within the computer repair technician's professional
capacity or employment.
A violation of this section is a Class 1 misdemeanor. However, a violation of this section does not
constitute grounds for a civil action for damages against any person.
Section 26. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
Section 26. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows:
This Act does not apply to the performance of official duties by any law enforcement officer,
court employee, attorney, licensed physician, psychologist, social worker, or any person acting at the
direction of a licensed physician, psychologist, or social worker in the course of a bona fide treatment
or professional education program.
Section 27. That § 43-43B-1 be amended to read as follows:
43-43B-1. A person is guilty of unlawful use of a computer system, software, or data if the person:
Section 27. That § 43-43B-1 be amended to read as follows:
43-43B-1. A person is guilty of unlawful use of a computer system, software, or data if the person:
(1)
Knowingly obtains the use of, accesses or exceeds authorized access to, a computer
system, or any part thereof, without the consent of the owner;
(2)
Knowingly obtains the use of, accesses, or exceeds authorized access to, a computer
system, or any part thereof, without the consent of the owner, and the access or use
includes access to confidential data or material;
(3)
Knowingly copies or obtains information from a computer system, or compromises any
security controls for the computer system, or uses or discloses to another, or attempts to
use or disclose to another, the numbers, codes, passwords, or other means of access to a
computer system without the consent of the owner;
(4)
Knowingly disrupts, denies, or inhibits access to software or data without the consent of
the owner;
(5) Knowingly disrupts, denies, or inhibits access to a computer system, without consent of
the owner;
(6) Knowingly modifies, changes, or alters software or data, without the consent of the owner;
(7) Knowingly obtains use of, alters, accesses, or exceeds authorized access to, destroys,
disables, or inhibits access to a computer system, as part of a deception for the purpose
of obtaining money, property, or services from the owner of a computer system, or any
third party;
(8) Knowingly destroys or disables a computer system, without consent of the owner; or
(9) Knowingly destroys or disables software or computer data, without consent of the owner.
Section 28. That § 43-43B-2 be amended to read as follows:
43-43B-2. Terms used in this chapter mean:
Section 28. That § 43-43B-2 be amended to read as follows:
43-43B-2. Terms used in this chapter mean:
(1)
"Access," to instruct, communicate with, store data in, retrieve data from a computer
system;
(2)
"Computer," an internally programmed, general purpose digital device capable of
automatically accepting data, processing data and supplying the results of the operation;
(3)
"Software," a series of coded instructions or statements in a form acceptable to a computer
system, which causes the computer system to process data in order to achieve a certain
result;
(4)
"Computer system," includes any computer, computer network, other related device, data
input and output and storage devices, and data communications links;
(5) "Computer network," a set of related, connected network electronics and communications
links that allows any computer system to communicate with any other computer system;
(5A) "Data," digitized information in any form that may be accessed by a computer system,
regardless of whether the information is in transmission or stored on a computer system,
diskette, compact diskette, cd-rom, tape, or in any other medium;
(6) "Destroy," to make unusable, render inoperable, render unable to accept or process data,
or supply results, render unable to perform data processing tasks or cause computer
networks to be unable to transfer data between computer systems for any amount of time.
Section 29. That § 43-43B-3 be amended to read as follows:
43-43B-3. Violations of the provisions of § 43-43B-1 are punishable as follows:
Section 29. That § 43-43B-3 be amended to read as follows:
43-43B-3. Violations of the provisions of § 43-43B-1 are punishable as follows:
(1) For a violation of subdivision (1), a Class 1 misdemeanor;
(2) For a violation of subdivision (2) or (3), a Class 6 felony;
(3) For a violation of subdivision (4), a Class 5 felony;
(4) For a violation of subdivision (5) or (6), a Class 4 felony;
(5) For a violation of subdivision (8) or (9), a Class 3 felony;
(6) For a violation of subdivision (7), a Class 2 felony.
Section 30. That § 43-43B-4 be repealed.
Section 31. That § 43-43B-5 be repealed.
Section 32. That § 43-43B-6 be repealed.
Section 33. That § 22-22-25 be amended to read as follows:
22-22-25. Section 22-22-24 and sections 7, 8, and 10 of this Act do not apply to the selling, lending, distributing, exhibiting, giving away, showing, possessing, or making of films, photographs, or other materials involving only nudity, if the materials are made for and have a serious literary, artistic, educational, or scientific value.
An Act to protect the children of South Dakota against sexual exploitation by criminalizing certain conduct involving children and the internet, to provide for civil remedies, to require certain people to report suspected violations, and to revise certain provisions regarding the unlawful use of computers.
Section 30. That § 43-43B-4 be repealed.
Section 31. That § 43-43B-5 be repealed.
Section 32. That § 43-43B-6 be repealed.
Section 33. That § 22-22-25 be amended to read as follows:
22-22-25. Section 22-22-24 and sections 7, 8, and 10 of this Act do not apply to the selling, lending, distributing, exhibiting, giving away, showing, possessing, or making of films, photographs, or other materials involving only nudity, if the materials are made for and have a serious literary, artistic, educational, or scientific value.
An Act to protect the children of South Dakota against sexual exploitation by criminalizing certain conduct involving children and the internet, to provide for civil remedies, to require certain people to report suspected violations, and to revise certain provisions regarding the unlawful use of computers.
|
I certify that the attached Act originated in the
SENATE as
Bill
No.
184
|
____________________________
Secretary of the Senate
Secretary of the Senate
____________________________
President of the Senate
President of the Senate
Attest:
____________________________
Secretary of the Senate
Secretary of the Senate
____________________________
Speaker of the House
Attest:
____________________________
Chief Clerk
Chief Clerk
Senate
Bill
No.
184
File No. ____
Chapter No. ______=========================
Received at this Executive Office this _____ day of _____________ ,
File No. ____
Chapter No. ______
Received at this Executive Office this _____ day of _____________ ,
20____ at ____________ M.
By _________________________
for the Governor
for the Governor
The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
____________________________
Governor
Governor
STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
____________________________
Secretary of State
Secretary of State
By _________________________
Asst. Secretary of State
