PIERRE, S.D. – In a private signing ceremony held yesterday, South Dakota Governor Larry Rhoden signed into law HB 1053, formally titled “An Act to require age verification by websites containing material that is harmful to minors, and to provide a penalty therefor.”
“As parents, we just want to protect our kids. But technology moves so fast that it often seems impossible,” Rhoden said in a statement released yesterday. “I signed a bill to require age verification by websites containing material that is harmful to minors. I will continue to find ways to keep South Dakota safe for our kids.”
According to an analysis of the legislation published by the Free Speech Coalition, the age verification mechanisms permitted under the new include
A state-issued driver license or non-driver identification card, a military identification card, the individual’s bank account information, 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 “any other method that reliably and accurately determines if a user of a covered platform is a minor and prevents a minor from accessing the content of a covered platform.”
An initial violation of the law constitutes a Class 1 misdemeanor, while subsequent violations by the same covered platform are deemed a Class 6 felony
“Any covered platform found to be in violation 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,” according to the FSC’s analysis. “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.”
Under the law, if a covered platform “is not in substantial compliance, the attorney general must provide written notice to the covered platform before initiating an action,” FSC noted.
“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,” FSC added in the analysis. “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.”
The text of the law also states that “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 statute continues. “The attorney general shall forward any civil penalty collected under this section to the state treasurer, for deposit in the state general fund.”
The signing of the South Dakota law comes as the U.S. Supreme Court considers whether to reinstate an injunction against enforcement of the age-verification statute passed by Texas, which is under challenge in the case Free Speech Coalition v. Paxton. The Supreme Court heard oral arguments in the case in mid-January, with a decision expected by late June or early July.
