Companies that run app stores or make mobile phones and tablets could be required to verify the age of their users in South Dakota under the terms of legislative proposals presented Wednesday in Pierre.
Lawmakers with the Study Committee on Artificial Intelligence and Regulation of Internet Access by Minors voted unanimously to ask the state Legislative Research Council to draft the two “age gating” bills for presentation during the 2025 legislative session, which starts in January.
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Committee members heard testimony for and against the age verification strategy during the seven-hour hearing. A representative from Facebook parent company Meta and online safety advocates were among those to support the ideas; trade group representatives for app developers and other tech companies came out against them.
No state has passed laws for app- or device-based age verification, but Meta is among the players to have signaled support for the idea, and U.S. Rep. John James, R-Michigan, has introduced a bill on app-based verification in Congress.
“This is a bipartisan idea, a common sense idea,” said John Schweppe, policy director for the Virginia-based American Principles Project, which he described as “a pro-family conservative group. “It’s been something that folks have frankly agreed on for a long time, that we should be able to protect kids from harmful material online.”
Schweppe pointed to the passage of age verification laws in 19 states that put the burden for verification on websites or social media companies. The South Dakota House of Representatives passed a similar bill this year, but it was killed in a Senate committee.
Other states’ bills have faced legal challenges from tech companies, which argue they violate the First Amendment rights of adults. One such law out of Texas currently awaits a hearing from the U.S. Supreme Court.
Proposals pitched as ‘one and done’ age verification
App-based age verification would require app stores run by companies like Apple or Google to offer parental control features, many of which are already available. App stores would be required to take “commercially reasonable and technically feasible steps” to determine or estimate a user’s age and to require those younger than 16 to get a parent’s permission before downloading apps to mobile devices.
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The law would require app stores to send “a digital signal” to websites, applications or online services to say if a person accessing them is younger than 13 years of age, between 13 and 16, between 16 and 18, or older than 18.
Companies that develop apps, meanwhile, would be required to use that information to “provide readily available features” that would allow parents to limit their child’s time on the app, see who their “friends” are on social media apps, to see who their children are messaging with and who their children have blocked.
The device-based age verification proposal would include the same requirements for app stores, but would also require device-makers to try and determine a user’s age and send digital signals.
Some social media apps already offer parental control features similar to those that would be required under such a proposal. Meta recently rolled out a series of updates to Instagram meant to offer more control to parents and more restrictive experiences for teen accounts.
Nicole Lopez, who oversees youth safety policy for Meta, appeared in person at the South Dakota Capitol building Wednesday to outline some of those features and pledge its support for the app-based age verification proposal.
“While Meta has a robust, multi-layered approach to determining one’s age, we are only one part of the online ecosystem,” Lopez said. “The reality is kids are not only getting smartphones at increasingly younger ages, but they hop from app to app to app to app.”
One study from the University of Michigan, Lopez said, found that teens access an average of 40 apps a week. An app-based age control system “will not only make it easier on parents, but it will empower them when it comes to overseeing their teens’ experiences online.”
Joel Thayer, president of the bipartisan Digital Progress Institute, said an app store-based system could be the simplest way to add guardrails against the ills of social media.
“The evidence is staggering,” Thayer said, that “social media is harmful to children. He cited a recent call for a warning label on social media from the U.S. surgeon general and a host of statistics tying depression, body image issues and spikes in suicidal thoughts by teens to spending five or more hours a day on social media.
“The good news is that states like yours can take action,” Thayer said.
An app store-based system with digital signals “presents a one-and-done solution for apps.
“You only prove it to the app store once,” he said.
Opponents: Free speech concerns, unintended consequences
Kristian Stout of the Portland, Oregon-based nonprofit International Center for Law and Economics testified against the proposal. App store data on user ages can be unreliable, he said, and forcing companies to expend resources to create digital signals could stifle innovation in smaller companies.
Stout also talked through a few of the ways users can bypass digital signals. Users can switch their mobile browser to desktop mode, for example, “which makes a website think you’re not on a mobile device,” thereby preventing mobile device signals – and their associated age-gating content restrictions – from being sent when a user tries to access adult content from an app like Reddit.
“Smart kids know how to do this,” Stout said. “If I know how to do it and I’m 47, my 16-year-old son definitely knows how to do this.
Stout was also among the witnesses to encourage lawmakers to consider an approach that would place a premium on educating parents and children about online safety and the existing tools to track youth behavior.
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Justin Hill of NetChoice, a tech company trade association, told lawmakers that it’s unnecessary to pass laws that might fail a First Amendment test when so many options already exist for parents.
“The devices already do all the things that were said today,” Hill said.
Hill’s organization also submitted written testimony opposing app-based age verification, as did the Computer and Communications Industry Association in a letter submitted to the Legislature.
That organization’s policy director, Khara Boender, testified that digital literacy is key. She also talked about the bills’ assumptions regarding traditional family structures in a country where not all children live with their parents, and how the device-based proposal raises questions about how the law would handle devices that aren’t purchased new.
“When a cousin or sibling graduates from college and they get a new phone for a graduation gift, they may be transferring that phone down to a younger sibling, where we need to actually ensure that the protections and device settings that currently exist are turned on correctly,” Boender said.
Two proposals garner committee support
Committee members had four versions of the age verification bills to review Wednesday. One focused on app store-based age verification, another on app store- and device-based verification. Each of those would level civil and criminal penalties against non-compliant companies.
Another version of the app store-based proposal only applied civil penalties.
Yet another proposal would revive the 2024 bill that would have required website-based age verification to access adult content. That bill was sponsored by Rep. Bethany Soye, R-Sioux Falls, who is also a committee member. On Wednesday, she voiced concerns that app store-based age-gating would fail to address the issue of minors accessing pornography on web browsers. Others testified along those same lines, arguing that South Dakota’s failure to advance that bill was a stain on its reputation as a state that cares about kids.
“I think we need to stop talking about it and start being about it,” said Karen McNeal, an independent state Senate candidate from Rapid City.
The committee voted unanimously to send the first two proposals — containing civil and criminal penalties — to the Legislative Research Council for drafting. They also voted to send a bill that would define artificial intelligence under state law to the council.
Committee vice-chairman, Republican Rep. Mike Weisgram of Fort Pierre, said the endorsements wouldn’t prevent individual lawmakers from sponsoring the remaining proposals.
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