John Hult
| South Dakota Searchlight
PIERRE — A bill from South Dakota Attorney General Marty Jackley to criminalize the creation or sharing of deepfakes was amended this week to more clearly define what constitutes nudity before it reaches Gov. Larry Rhoden’s desk.
The amendment, added on the floor of the House of Representatives, came in response to concerns about unintended consequences.
Senate Bill 41 creates a class of felony crime for the creation or distribution of images digitally altered to depict a person in a state of nudity or involved in a sexually explicit act, commonly referred to as deepfakes.
In testimony in the House Judiciary Committee on Monday in Pierre, Jackley pointed to the case of Mark Rathbun, a former Division of Motor Vehicles employee who is accused of taking images of women and girls from state databases and creating sexual images.“This is real, and it’s something that we unfortunately are seeing happen in our state,” Jackley said.
The judiciary committee voted 8-3 to send the bill to the House floor but not before a discussion on its potential to criminalize political memes.
The bill’s definition of nudity originally encompassed a partial state of nudity. Fort Pierre Republican Rep. Will Mortenson asked Jackley if that would include a fabricated topless photo. Jackley said yes. Then Mortenson asked if a fabricated image of Democratic Illinois Gov. J.B. Pritzker without a shirt, if shared by President Donald Trump on social media, would put the president in line for felony charges.
Jackley said a Pritzker image wouldn’t qualify because Pritzker is male, but Mortenson pushed back.
He noted that partially nude fabrications would be a felony if done with the intent to “self-gratify or alarm, annoy, embarrass, harass, invade the privacy of, threaten, or cause emotional, financial, physical, psychological, or reputational harm to that individual.”
Nothing in the bill specified that a person in a digitally fabricated topless image must be female.
“We just said that half-nude is a state of nudity, and so now he’s shirtless, and the point of this is to embarrass this guy,” Mortenson said of his topless Pritzker meme scenario.
Mortenson voted against the bill in committee but brought an amendment Tuesday to define nudity as inclusive of male or female genitalia, buttocks or the female nipple.
The amendment passed, but it did not address every concern about the bill.
Democratic Rep. Kadyn Wittman of Sioux Falls asked Jackley during the bill’s committee hearing why he didn’t use it to enhance penalties for people who film others in states of undress or participating in sexual activity against their will.
That behavior is a felony if it involves the recording of a minor, or if it happens repeatedly. The new penalties for deepfakes would be added to the same chapter of South Dakota law.
“Why is the first time hidden recording a misdemeanor generally, but a digitally fabricated image would automatically be a classified felony,” said Wittman.
Jackley said he feels that the creation of digitally manipulated sexual images, even if they aren’t shared, signals “significant criminal intent.” He told South Dakota Searchlight after the committee meeting that he’s open to addressing that issue, but that SB 41’s primary purpose was to target deepfakes.
On the House floor, Wittman was one of two representatives to say the bill’s felony penalties could be unnecessarily harsh in instances where young people make “a stupid decision” and create a deepfake.
“I feel like, in a lot of situations, this bill covers behavior that could be covered by a lower level of offense,” Wittman said.
Supporters countered that the creation of fake nudes can do real psychological damage to real people, and that the state needs to clearly signal that doing so is a serious crime.
“It’s only fun and games until it happens to you,” said Rep. Mary Fitzgerald, R-St. Onge.
The bill passed the House 60-6. It now moves to the state Senate, which passed the bill 32-0 on Jan. 16. The Senate would need to approve the amended version of the bill before it could be delivered to Gov. Larry Rhoden to sign or veto.
