FILE – South Dakota Attorney General Marty Jackley speaks outside the U.S. Supreme Court, April 17, 2018, in Washington. South Dakota officials, including Jackley, said Thursday, March 28, 2024, that they will investigate a “disturbance” at a state prison in Sioux Falls that they say resulted in at least one officer getting assaulted the day before. (AP Photo/Andrew Harnik, File)
By: John Hult
PIERRE, S.D. (South Dakota Searchlight) – South Dakota Attorney General Marty Jackley urged lawmakers to pass a bill that would require people to prove their age before accessing adult material online, but he had caveats.
To be enforceable and make a meaningful difference in South Dakota, the state’s top prosecutor said, such a law would need to carry criminal penalties and be “narrowly tailored” to target internet companies offering adult content, not the children who might try to access it.
Jackley made his remarks Wednesday in Pierre during the second meeting of the Legislature’s Study Committee on Artificial Intelligence (AI) and Regulation of Internet Access by Minors.
His advice came as committee members coalesced around age verification as a prime legislative possibility during the next lawmaking session in January. The committee has heard from experts on AI in medicine, political campaigns and classrooms, and taken testimony on data privacy and protection during its two meetings, but the conversations on age verification grew more pointed and pressing as Wednesday’s meeting drew to a close.
Even as lawmakers sparred over the best approach to the issue and when to act, all who spoke on the issue expressed some measure of support for restricting access to pornography by minors.
Lawmakers rejected a bill earlier this year that would have required users to prove their age to access adult material online. Nineteen states have passed similar laws, according to the Free Speech Coalition, a lobbying group for the adult entertainment industry. That coalition is among the plaintiffs in a lawsuit over a Texas age verification law that will be heard by the U.S. Supreme Court this fall.
States with verification laws force adult websites to ask users for some manner of proof – a government-issued ID, for example – that they are 18 years old before accessing adult material.
South Dakota lawmaker efforts
The South Dakota bill, supported by the House but rewritten to create the study committee by the Senate in early March, would have required users to provide a government ID, military ID, bank account or credit card information before accessing pornographic websites.
It would have required platforms to delete that information immediately, and would have held platforms or third-party data brokers liable if the data were retained or sold.
Enforcement would have taken the form of fines, levied through the Attorney General’s Office.
The Legislature also punted this year on a bill that would have barred the production of “deepfakes” – images and videos of real people created using artificial intelligence – and another bill that would have required disclosure of AI use in political messaging.
Legislators did pass a bill barring the creation or production of AI-generated child pornography, but shoved the remaining topics onto the docket of the summer study.
On age verification, Jackley said Wednesday, “you could move forward, and I’d encourage you to do that.”
“I feel it’s important to protect children, and I feel it’s a good opportunity to go in that direction,” he said.
The Supreme Court’s decision – likely to land in 2025 after oral arguments this fall – might bind his hands in terms of enforcement, but Jackley said he’d be willing to help find the language most likely to pass constitutional muster. Specifically, he’d want to make sure it targets companies without creating overly burdensome requirements for adults, who have the right to access adult material under the First Amendment.
The level of proof required could be the difference between a defensible law and an injunction barring enforcement.
“You’re going to have to balance in the Legislature, as part of this process, how far you want to go,” Jackley said. “And the more you put on that, the more likely you are to see a constitutional challenge.”
But he’d prefer that the penalties be criminal, rather than civil. His office has no civil enforcement division charged with filing and enforcing civil penalties, he said, so lawmakers would need to pay for one if it chose to go the route of fining websites.
Lawmakers divided on when to act
Sen. Helene Duhamel, R-Rapid City, is a member of the study group’s subcommittee on age verification. Before Jackley spoke, she said lawmakers ought to be careful in approaching the topic in the face of a pending Supreme Court case.
“Our question right now, and it’s a big one, is do we wait and see what the Supreme Court rules and maybe not have an answer until the spring of 2025, or do we go?” Duhamel said.
But Rep. Bethany Soye, R-Sioux Falls, who sponsored the 2024 bill, said there’s no need to wait. She noted that the state passed a trigger ban in 2005 to overturn legal abortion in the event Roe v. Wade was overturned, which happened in 2022.
Roe v. Wade, she said, “didn’t stop the state Legislature from passing laws that they believed were morally correct.”
Sen. Jim Mehlhaff, R-Pierre, said any legal fees would be worth the expense.
“We spend a lot of money on lawyers in this state, and protecting our children is something we ought to be willing to step up and spend some money on,” he said.
The group’s chair, Fort Pierre Republican Rep. Mike Weisgram, said the next meeting in September should be one where committee members “get into the nuts and bolts” of legislation. In addition to age verification, the group has concluded that South Dakota needs a workable definition of artificial intelligence around which to legislate as the technology matures.
Rep. Chris Karr, R-Sioux Falls, is a member of the subcommittee studying that issue and said all signs from that group’s research point to Colorado’s definition as a sound, inclusive model.
Colorado defines AI as a “machine-based system that, for any explicit or implicit objective, infers from the inputs the system receives how to generate outputs, including content, decisions, predictions, or recommendations, that can influence physical or virtual environments.”
The South Dakota study group will reconvene on Sept. 24, and is expected to have its final legislative package ready for review at its last meeting on Oct. 23.
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Publish date : 2024-08-15 03:58:00
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