South Dakota Deepfake Laws: AI Images, Voice Cloning & Penalties (2026)

South Dakota makes several categories of deepfakes illegal. The state covers nonconsensual intimate deepfakes of adults under SDCL 22-21-4, AI-generated child sexual abuse material under SB 79 (signed 2024), and unlabeled election deepfakes under SB 164 (signed 2025). Since SB 41 took effect July 1, 2026, creating or distributing digitally fabricated (AI-generated) intimate material under SDCL 22-21-4(3) is a Class 5 felony; only real, unaltered images fall under the statute's Class 1 misdemeanor tier. No state voice-cloning or right-of-publicity law exists yet.

Is It Illegal to Make a Deepfake of Someone in South Dakota?

Yes, in several contexts, though the scope of each law differs. South Dakota has built its deepfake protections across three separate statutes addressing different harms: intimate imagery, child exploitation, and election interference.

For adults, disseminating or selling a real, unaltered intimate image of someone without their consent is a Class 1 misdemeanor under SDCL 22-21-4(1)-(2); that tier reaches dissemination of a real image, not AI fabrication. Since SB 41 took effect July 1, 2026, SDCL 22-21-4(3) separately makes it a Class 5 felony, up to five years in prison, to knowingly create, disclose, disseminate, distribute, or sell computer-generated or digitally fabricated intimate material -- the provision that actually reaches AI-generated deepfakes.

For minors, AI-generated child sexual abuse material became a felony when Governor Noem signed SB 79 in February 2024, with penalties tiered by conduct: possession is a Class 4 felony, distribution a Class 3 felony, and manufacturing a Class 2 felony. That law expressly covers both deepfakes of real children and wholly synthetic images that do not depict any actual person but appear to show a minor in a sexual act.

For elections, disseminating an unlabeled AI-generated deepfake of a candidate within 90 days of an election with intent to injure is illegal under SB 164 (effective July 1, 2025).

What is NOT covered: South Dakota has no general-purpose deepfake law, no right-of-publicity statute covering AI voice or likeness replicas outside those three buckets, and no civil cause of action for adults harmed by nonconsensual intimate deepfakes beyond what federal law now provides.

Sexual and Intimate Deepfakes

South Dakota's main adult-intimate-deepfake law, SDCL 22-21-4, has two distinct tiers. Subdivisions (1) and (2) prohibit photographing, visually recording, or disseminating a real, unaltered image of someone without clothing or engaged in a sexual act, without consent and with intent to self-gratify, harass, embarrass, or otherwise harm -- a Class 1 misdemeanor. Subdivision (3), added by SB 41 and in effect since July 1, 2026, expressly reaches AI-generated content: it prohibits knowingly and intentionally creating, disclosing, disseminating, distributing, or selling "digitally fabricated material" depicting an identifiable person in a state of nudity or engaged in sexual conduct, and it is a Class 5 felony.

The base penalty under the current statute is a Class 1 misdemeanor: up to one year in jail and a $2,000 fine. If the victim is 17 or younger and the perpetrator is at least 21, the offense escalates to a Class 6 felony.

SB 41, signed by Governor Rhoden on March 16, 2026, added a new subdivision to South Dakota's criminal invasions-of-privacy chapter explicitly targeting "digitally fabricated material." Effective July 1, 2026, creating, disclosing, distributing, or selling digitally fabricated depictions of an identifiable person in a state of nudity or engaged in a sexually explicit act without consent is now a Class 5 felony carrying up to five years in prison. The provision does not criminalize mere possession. This is a meaningful upgrade: where SDCL 22-21-4's base offense carries a maximum of one year, the same conduct with digital fabrication is now punishable by five times that amount.

For victims of AI-generated CSAM involving minors, SB 79 (signed February 12, 2024) amended SDCL chapter 22-24A to define "computer-generated child pornography," including depictions created by the use of artificial intelligence or other computer technology. Possession is a Class 4 felony, distribution is a Class 3 felony, and manufacturing is a Class 2 felony. The law covers both deepfakes of real children and entirely synthetic images that depict no actual person but appear to show a minor.

Federal law also applies in South Dakota. The TAKE IT DOWN Act (Public Law 119-12, signed May 19, 2025) creates a separate federal crime for knowingly publishing nonconsensual intimate visual depictions of adults or minors, expressly including AI-generated deepfakes. Platforms must remove flagged content within 48 hours of a victim's notice. Federal CSAM statutes under 18 U.S.C. 2256(8) likewise cover AI-generated images indistinguishable from a real minor.

Election and Political Deepfakes

South Dakota enacted SB 164 on March 25, 2025, making it one of the earlier states to specifically address election deepfakes. The law is effective July 1, 2025.

SB 164 prohibits disseminating a deepfake depicting a candidate within 90 days before an election with the intent to cause injury to that candidate. Dissemination is allowed if the content includes a clear and prominent disclosure stating it has been manipulated or generated by artificial intelligence. For video, the disclosure must appear as legible text superimposed over the content, no smaller than the largest font otherwise visible. For audio, the disclosure must be spoken clearly at the beginning and end of the recording.

Violations are a Class 1 misdemeanor: up to one year in jail and a $2,000 fine. The law also creates civil remedies: the attorney general, an injured candidate, or the individual depicted may seek injunctive relief, and a violator is liable to the candidate and the depicted individual for damages, reasonable costs, and attorney fees.

Satire and parody are exempt, as is news content that clearly acknowledges the deepfake status of what is being shown. These carve-outs reflect the First Amendment concerns that have followed election-deepfake laws in other states. Note that a California election-deepfake statute was struck down and permanently enjoined in August 2025 on First Amendment grounds, illustrating that such laws face ongoing judicial scrutiny.

SB 164 is narrower than it might appear: it covers only candidates and only within the 90-day window. Deepfakes targeting elected officials outside that window, or targeting private citizens in a political context, are not addressed by SB 164 and would need to fit under SDCL 22-21-4 or SB 41 to be covered.

AI Voice Cloning and Digital Likeness

South Dakota has no statute protecting voice or likeness from unauthorized AI replication. The state has not enacted a right-of-publicity law covering AI digital replicas, and no voice-cloning-specific legislation has been signed into law as of mid-2026.

The national reference point is Tennessee's ELVIS Act (Tenn. Code Ann. 47-25-1101 et seq., effective July 1, 2024), the first state law to expressly extend right-of-publicity protections to AI voice simulations. South Dakota residents do not have a comparable state-law remedy.

Federal rules provide partial coverage. The FCC ruled in February 2024 (FCC 24-17) that AI-generated voices in robocalls constitute "artificial" voices under the Telephone Consumer Protection Act (47 U.S.C. 227), making unsolicited AI voice-clone calls to phones illegal without prior express consent. The FTC Impersonation Rule (16 CFR Part 461, effective April 1, 2024) prohibits AI-assisted impersonation of government entities and businesses. The proposed federal NO FAKES Act (S.4591, 119th Congress) would create a national right of publicity for voice and likeness against unauthorized AI digital replicas, but it has not passed either chamber as of June 2026 and is pending legislation only.

For general AI regulation affecting South Dakota businesses and individuals, see South Dakota AI Laws, which covers the broader regulatory landscape beyond deepfake-specific rules. For privacy-related protections, see South Dakota Data Privacy Laws.

Federal Law That Applies in South Dakota

Several federal laws apply to deepfake conduct in South Dakota regardless of what state law covers.

The TAKE IT DOWN Act (Public Law 119-12) is the most significant recent development. Signed May 19, 2025, it is the first federal law specifically targeting nonconsensual intimate deepfakes. It criminalizes knowingly publishing nonconsensual intimate visual depictions of adults or minors, expressly including AI-generated "digital forgeries." The maximum penalty is two years in prison, rising to three years when a minor is depicted. Platforms must remove flagged content within 48 hours of a victim's notice under a compliance framework enforced by the FTC; the compliance deadline was May 19, 2026.

The DEFIANCE Act (S.1837, 119th Congress) would create a federal civil cause of action for victims of sexual deepfakes, with liquidated damages of $150,000 ($250,000 if the conduct involved actual or attempted sexual assault, stalking, or harassment). The 118th Congress version passed the Senate in July 2024 but died in the House. The current version, S.1837, passed the Senate by unanimous consent on January 13, 2026 and is now pending in the House. It has not been signed into law and remains pending legislation. For background, see our coverage of the DEFIANCE Act and deepfake porn victims' right to sue.

The NO FAKES Act (S.4591, 119th Congress) similarly remains a proposal. It would create a federal right of publicity for AI voice and likeness replicas, but it is not law and has not been enacted.

Federal CSAM statutes (18 U.S.C. 2256(8)(B), (11)) cover computer- and AI-generated images indistinguishable from a real minor, filling any gap left by state law.

The FCC's February 2024 ruling (FCC 24-17) makes AI-generated voice robocalls illegal under the TCPA. The FTC Impersonation Rule (16 CFR Part 461) covers AI-assisted business and government impersonation.

What Victims Can Do

Victims of intimate deepfakes in South Dakota have several avenues available to them. The most immediate step is reporting to local law enforcement and requesting prosecution under SDCL 22-21-4 or, after July 1, 2026, under SB 41's felony provision. Reports can also be made to the South Dakota Attorney General's office.

For election-related deepfakes within the 90-day window, SB 164 gives the depicted individual an independent civil right of action. Victims can seek injunctive relief to stop dissemination plus damages and attorney fees without waiting for a criminal prosecution.

Under the federal TAKE IT DOWN Act, victims can submit a removal notice directly to the platform hosting the content. Platforms must remove the material within 48 hours of receiving a compliant notice. The FTC enforces platform compliance.

Platform-level reporting remains important in all cases. Major social media and content platforms maintain their own policies against nonconsensual intimate imagery and AI-generated deepfakes. Filing a content-removal report with the platform often achieves faster removal than waiting for a criminal investigation to proceed.

Victims who believe a deepfake constitutes federal criminal conduct, particularly where a minor is depicted, should contact the FBI's Internet Crime Complaint Center (IC3) at ic3.gov in addition to local authorities.

For more on South Dakota recording and privacy laws that may intersect with deepfake conduct, see South Dakota Recording Laws.

Penalties at a Glance

Disclaimer: This page provides general legal information about South Dakota deepfake laws and is not legal advice. Deepfake and AI law is one of the fastest-changing areas of legislation; statutes, effective dates, and judicial interpretations can shift quickly. If you have been harmed by a deepfake or face allegations involving AI-generated content, consult a licensed South Dakota attorney.

For the full 50-state comparison, see Deepfake and AI Voice Cloning Laws by State.

More South Dakota Laws

• South Dakota AI Meeting Recording Laws
• South Dakota Data Privacy Laws
• South Dakota Recording Laws
• South Dakota Sexting Laws