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;
(2)(3) "Distributed,"
to transfer possession of, whether with or without consideration;
(3)(4) "Exhibit,"
to show or display;
(4)(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;
and
(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;
(5)(6) "Magistrate,"
any circuit court or magistrate judge;
(6)(7) "Material,"
anything tangible
which
that is harmful
to minors, whether derived through the medium of reading,
observation, or sound;
(7)(8) "Matter"
or "material," any book, magazine, newspaper, or other
printed or written material;
or any
picture, drawing, photograph, motion picture, or other pictorial
representation;
or any
statue or other figure;
or
recording, transcription or mechanical, chemical, or electrical
reproduction; or any other articles, equipment, machines, or
materials;
(8)(9) "Minor,"
any person less than eighteen years of age;
(9)(10) "Nudity,"
within the meaning of subdivision (4) of this section,
the showing of the human male or female genitals, pubic area, or
buttocks with less than a full opaque covering,
or 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;
(10)(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,
such
the evidence is
probative with respect to the nature of the conduct;
(11)(12) "Obscene
material," material:
(a) The dominant theme of which, taken as a whole, appeals to the prurient interest;
(b) Which
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) Lacks
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 prurient
appeal,
such
the evidence is
probative with respect to the nature of the matter;
(12)(13) "Prurient
interest," a shameful or morbid interest in nudity, sex, or
excretion,
which
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
shall
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) A military identification card;
(c) The individual's bank account information;
(d) 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
(e) 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;
(13)(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;
(14)(16) "Sexual
conduct,"
within the meaning of subdivision (4) 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
(15)(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
that
the person
knowingly gives or makes available to a minor or promotes or
possesses with intent to promote to minors, or if
that
the person
knowingly sells or loans to a minor for monetary consideration,
any material
described
that is harmful to minors as described
in
subdivision § 22-24-27(4)
subdivision 22-24-27(5).
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(11)
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:
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.
Underscores indicate new language.
Overstrikes
indicate deleted language.