Summary
South Dakota House Bill 1154 is a mandatory filtering bill that would bar a distributor from manufacturing or distributing a product that makes content available on the internet unless it contains filtering software. The filtering software, by default, must prohibit access to a website that displays obscene material or one that facilitates prostitution or human trafficking. It must also block access to a website that displays “nonconsensual pornography,” but not by default.
Section 15 of the bill also makes it a class 2 misdemeanor to knowingly sell a product that makes content accessible on the internet without filters that attempt to render inaccessible websites that display obscene material or “revenge pornography” or websites “known” to facilitate prostitution or human trafficking. This would apply to hardware such as computers, smart phones, tablets, game consoles, televisions, smart watches, and presumably to software such as Google Chrome and Adobe Flash.
“Nonconsensual pornography” is defined as a nude image of a person published without the person’s consent if the image contains personal identification information of the depicted person. “Revenge pornography” is not defined.
Section 4 bars filtering of websites that serve primarily as search engines; websites that display complete movies rated “R” or less by the motion picture industry’s voluntary rating system; and “social media websites” that allow reporting by users of obscene material and have procedures for evaluating those reports. “Social media websites” is not defined.
The distributor must deactivate the filtering software if the consumer requests that it be turned off; the consumer presents a government document proving he or she is an adult; the consumer acknowledges receiving a written warning of the danger of turning off the filter (the attorney general will prepare a form with the content that must be in the warning); and the consumer pays a $20 tax plus any additional charge imposed by the distributor.
In addition to these requirements, the manufacturer and each distributor must make reasonable and ongoing efforts to ensure that the filter is working properly. They must also create a website, call center or other reporting mechanism to allow a person to report the blocking of prohibited material or the failure to block prohibited material. Once a report is made, the distributor has five days to assess the content and block the material that is prohibited and unblock speech that is not prohibited. If the distributor declines to block material reported as prohibited, the attorney general or any person may bring a civil suit to block unblocked content. If the attorney general or the person prevails, they may seek damages of $500 per website that displays prohibited content but was unblocked. If the distributor decides not to unblock material reported as mistakenly prohibited, any person may sue to get the speech unblocked, but the attorney general is not authorized to bring such a suit, nor is the person entitled to damages. In either case, the prevailing party is entitled to attorneys’ fees.
Status
The House Judiciary Committee voted to defer the bill to the 41st legislative day, meaning that the bill is dead.
Action
On February 5, 2019 Media Coalition submitted a memo in opposition to the House Judiciary Committee, ahead of a scheduled hearing on the bill on February 8, 2019.
Analysis
History
- On January 25, 2019, the bill was introduced.
- On January 28, 2019, the bill was referred to the House Judiciary Committee.
- On February 5, 2019, Media Coalition submitted a memo in opposition to the House Judiciary Committee ahead of a scheduled bill hearing on February 8, 2019.
- On February 8, 2019, the House Judiciary Committee voted to defer the bill the 41st legislative day, essentially killing the bill.