By John Hult,
SD Searchlight
A South Dakota summer legislative study committee has endorsed a bill that would require users to prove their age with identification documents to access online pornography.
The Study Committee on Artificial Intelligence and Regulation of Internet Access by Minors made the decision at its final meeting on Wednesday in Pierre.
It also scrapped plans for bills that would aim to protect children from the harms of social media and other addictive apps.
The porn restriction bill was endorsed after months of meetings. The committee heard testimony at previous meetings from tech company representatives and advocates about both pornography and potential regulations for the other activities kids engage with on their phones.
The age verification bill closely mirrors a Texas age verification law that awaits a hearing and decision on its legality from the U.S. Supreme Court. The adult entertainment industry argues that age verification violates the free speech of users by forcing them to disclose personal information to access content.
Committee members passed two amendments to a prior draft of the age verification bill. One of them clarifies which websites would be required to ask adults for their driver’s licenses, credit card numbers, military IDs or other identifying information to prove they’re older than 18. Again mirroring the Texas law, the amended bill would apply to sites where a third or more of the content is “material harmful to minors.” That material is defined throughout the bill with passages like “predominantly appeals to the prurient, shameful, or morbid interest.” The bill defines “prurient” as “a shameful or morbid interest in nudity, sex, or excretion.”
Rep. Bethany Soye, R-Sioux Falls, opposed that particular change, saying it’s too restrictive and that lawmakers should spend some time working on the exact language to define covered websites. She voted against the amendment, but ultimately voted to advance the full bill to be introduced with the committee’s imprimatur when the Legislature convenes in January.
The amendment’s supporters — every committee member but Soye and Sen. Jim Mehlhaff, R-Pierre — agreed that passing Texas language would make South Dakota’s version less likely to see court challenges.
The other amendment removed a section on deceptive trade practices, which would have opened adult websites up to enforcement actions from the state’s Consumer Protection Division.
Instead of that, the bill would level criminal penalties against websites that fail to age-gate their adult content.
Previously, the committee had tentatively advanced app store and device-based age verification proposals for further discussion. No state in the nation has tried that approach, which is endorsed by Facebook’s parent company Meta. One of the bills would have required app stores and apps to offer more parental controls, including controls on apps a child would download. The device-based version would have restricted content available on phones or tablets designated as belonging to or primarily used by minors.
South Dakota lobbyist Doug Abraham testified against that idea Wednesday on behalf of the App Association, a trade group funded in part by Apple. Abraham pointed out that current parental controls offer most of the same tools the bills would expect app developers to use.
Abraham said the bill would upend those tools in favor of new ones that would be needed to comply with the letter of the law. He also suggested that the bills could run afoul of the First Amendment by restricting access to protected speech by adults.
“Everyone using a smartphone is going to have to use their personally identifying information,” Abraham said.
Lawmakers voted against endorsing the app- and device-based verification bills in part over fears of potential legal action. Sen. David Wheeler, R-Huron, said he doesn’t believe it’s wise for the state to be the first to pass a bill that’s almost certain to draw a legal challenge.
“To be the tip of the spear on this one probably goes too far,” Wheeler said.
Representatives from Attorney General Marty Jackley’s office told lawmakers they would be comfortable defending such a law, but they did not tell the committee whether or not to endorse the ideas.
The committee’s recommendations or rejections would not stop individual lawmakers from proposing their own tech regulations during the 2025 legislative session.
South Dakota Searchlight is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. South Dakota Searchlight maintains editorial independence.
