South Dakota Identity Theft Laws: SDCL 22-40-8 Penalties

South Dakota classifies identity theft as a flat Class 6 felony regardless of the dollar amount involved, and its own minor credit freeze law, enacted in 2016, predates the comparable federal protection by two years. This page covers South Dakota's identity theft statute, that early minor-freeze law, what civil remedies exist for victims, and where South Dakota residents report identity theft.

This article addresses South Dakota state law on identity theft alongside the federal framework under 18 U.S.C. Section 1028 and the Fair Credit Reporting Act. For the parent overview of identity theft law generally, see our identity theft laws hub.

South Dakota's Identity Theft Statute

South Dakota's identity theft offense, S.D. Codified Laws Section 22-40-8, prohibits, without authorization or permission and with intent to deceive or defraud, either obtaining, possessing, transferring, using, attempting to obtain, or recording identifying information not lawfully issued for that person's use, or accessing or attempting to access another person's financial resources through the use of their identifying information. The companion definitions section, Section 22-40-9, defines «identifying information» broadly to cover birth certificate and passport data, driver's license numbers, Social Security numbers, financial account numbers, PINs, passwords and challenge questions, usernames, biometric data, and other data usable to access financial resources.

South Dakota does not tier the offense by dollar amount or item count. Identity theft is classified as a flat Class 6 felony. Under South Dakota's general felony classification statute, Section 22-6-1, a Class 6 felony carries up to 2 years imprisonment, a fine of up to $4,000, or both.

South Dakota's Minor Freeze Law Predates the Federal Version

South Dakota enacted its own protected-consumer security freeze law, Chapter 54-16, «Credit Reporting Security Freeze for Protected Consumers,» through 2016 Senate Bill 230, two years before Congress passed the comparable federal minor-freeze statute. Chapter 54-16 defines a «protected consumer» as a person under age 16, or an incapacitated person with a guardian or conservator. A representative acting on the protected consumer's behalf must submit proof of identity for both parties, proof of their authority to act, and pay a fee, and the credit reporting agency must place the freeze within 30 days. The fee is capped at $5 per placement or removal, and is waived entirely if a police report or identity-fraud affidavit is provided, or if the protected consumer is under 16 and the agency has no existing file on them.

Restitution and the Civil Remedy Gap

South Dakota's identity theft chapter itself, Chapter 22-40, contains no dedicated restitution clause. Instead, South Dakota's general crime-victim restitution policy, Section 23A-28-1 and the sections following it, would apply to an identity theft conviction the same as it would to any other crime.

There is also no identity-theft-specific civil claim in that chapter. Every operative section of Chapter 22-40 defines a criminal offense, and its one civil provision, Section 22-40-25, lets the attorney general pursue a civil penalty for a failure to give breach notice rather than giving a victim a claim of their own.

South Dakota's Deceptive Trade Practices Act does provide a private civil action, though not one written for identity theft. Section 37-24-31 states that any person who claims to have been adversely affected by an act or practice declared unlawful by Section 37-24-6 «shall be permitted to bring a civil action for the recovery of actual damages suffered as a result of such act or practice.» Chapter 37-24 carries related civil machinery as well, including restoration orders under Section 37-24-29 and receiver powers under Section 37-24-30. The Act separately imposes criminal penalties tiered by dollar amount: a Class 1 misdemeanor for violations under $1,000, a Class 6 felony for $1,000 to $99,999, and a Class 5 felony for $100,000 or more.

The practical limit is scope rather than the existence of a remedy. Section 37-24-31 reaches only conduct that Section 37-24-6 declares unlawful, and that section lists specific deceptive practices tied largely to the sale or advertisement of merchandise, the solicitation of charitable contributions, and other enumerated categories. Identity theft carried out in a way that does not fit one of those descriptions falls outside it. Whether a South Dakota victim has a statutory civil claim therefore depends on how the fraud was committed, and a victim weighing a lawsuit should ask a South Dakota attorney whether their facts fit Section 37-24-6 or a common-law theory such as fraud or conversion.

Reporting Identity Theft in South Dakota

South Dakota's Consumer Protection Division, part of the Office of the Attorney General, publishes both prevention guidance and a specific victim action plan for identity theft: cancel affected cards and close compromised accounts, file a police report with local police or the sheriff, contact all three credit bureaus to place fraud alerts, document all correspondence related to the theft, call the FTC's Identity Theft Hotline at 877-438-4338, check for any fraudulent driver's license issued in your name, and monitor your credit reports going forward. The division's site also provides a complaint form and directs residents to the Attorney General's office for step-by-step victim assistance.

Federal Rights That Apply Regardless of State Law

Every South Dakota identity theft victim also has rights under federal law that apply on top of the state protections above. A credit freeze and a fraud alert are both free under 15 U.S.C. Section 1681c-1, added by the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018. A free report at IdentityTheft.gov also unlocks the right under FCRA Section 605B, 15 U.S.C. Section 1681c-2, to have fraudulent information blocked from a credit report. For the full mechanics, see our guides on how to report identity theft and credit freeze vs. fraud alert.

Information last verified on 2026-09-02, drawing directly on the live text of S.D. Codified Laws Sections 22-40-8, 22-40-9, 22-6-1, 37-24-6 and 37-24-31, the full section index for Chapter 22-40, and Chapter 54-16, plus South Dakota's Consumer Protection Division identity theft page. This article has not yet been reviewed by a licensed lawyer.

Related Resources

• Identity Theft Laws: Federal Rules and State Penalties
• How to Report Identity Theft
• Credit Freeze vs. Fraud Alert

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Last updated: 2026-09-02.