Stricken language would be deleted from and underlined language would be added to present law.
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State of Arkansas As Engrossed: S3/27/23 1
94th General Assembly A Bill 2
Regular Session, 2023 SENATE BILL 396 3
4
By: Senators Dees, J. Petty 5
By: Representative Eubanks 6
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For An Act To Be Entitled 8
AN ACT TO CREATE THE SOCIAL MEDIA SAFETY ACT; TO 9
REQUIRE AGE VERIFICA TION FOR USE OF SOCI AL MEDIA; TO 10
CLARIFY LIABILITY FO R FAILURE TO PERFORM AGE 11
VERIFICATION FOR USE OF SOCIAL MEDIA AND ILLEGAL 12
RETENTION OF DATA; A ND FOR OTHER PURPOSE S. 13
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Subtitle 16
TO CREATE THE SOCIAL MEDIA SAFETY ACT; TO 17
REQUIRE AGE VERIFICATION FOR USE OF 18
SOCIAL MEDIA; AND TO CLARIFY LIABILITY 19
FOR FAILURE TO PERFORM AGE VERIFICATION 20
FOR USE OF SOCIAL MEDIA AND ILLEGAL 21
RETENTION OF DATA. 22
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 25
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SECTION 1. Arkansas Code Title 4, Chapter 88, is amended to add an 27
additional subchapter to read as follows: 28
Subchapter 11 — Regulation of Social Media 29
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4-88-1101. Definitions. 31
As used in this subchapter: 32
(1) "Account holder" means an individual who has or creates an 33
account or a profile to use a social media platform; 34
(2) "Arkansas user" means an individual who is a resident of the 35
State of Arkansas and who accesses or attempts to access a social media 36 As Engrossed: S3/27/23 SB396
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platform while present in this state by accessing the social media platform 1
using an Arkansas internet protocol address or otherwise known or believed to 2
be in this state while using the social media platform; 3
(3)(A) "Commercial entity" means a corporation, limited 4
liability company, partnership, limited partnership, sole proprietorship, or 5
other legally recognized entity. 6
(B) "Commercial entity" includes a third party vendor; 7
(4) "Digitized identification card" means a data file available 8
on a mobile device tha t has connectivity to the internet through a state -9
approved application that allows the mobile device to download the data file 10
from the Office of Driver Services that contains all of the data elements 11
visible on the face and back of a driver's license or identification card and 12
displays the current status of the driver's license or identification card, 13
including valid, expired, cancelled, suspended, revoked, active, or inactive; 14
(5) "Minor" means an individual under eighteen (18) years of 15
age; 16
(6) "Reasonable age verification" means to confirm that a person 17
seeking to access a social media platform is at least eighteen (18) years 18
old; 19
(7)(A) "Social media company" means an online forum that a 20
company makes available for an account holder to: 21
(i) Create a public profile, establish an account, 22
or register as a user for the purpose of interacting socially with other 23
profiles and accounts; 24
(ii) Upload or create posts or content; 25
(iii) View posts or content of other account 26
holders; and 27
(iv) Interact with other account holders or users, 28
including without limitation establishing mutual connections through request 29
and acceptance. 30
(B) "Social media company" does not include a: 31
(i) Media company that exclusively offers 32
subscription content in which users follow or subscribe unilaterally and 33
whose platforms' primary purpose is not social interaction; 34
(ii) Social media company that allows a user to 35
generate short video clips of dancing, voice overs, or other acts of 36 As Engrossed: S3/27/23 SB396
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entertainment in which the primary purpose is not educational or informative, 1
does not meet the exclusion under subdivision (7)(B)(i) of this section; or 2
(iii) Media company that exclusively offers 3
interacting gaming, virtual gaming, or an online service, that allows the 4
creation and uploading of content for the purpose of interacting gaming, 5
entertainment, or associated entertainment, and the communication related to 6
that content; 7
(8)(A) "Social media platform" means a public or semipublic 8
internet-based service or application: 9
(i) That has users in Arkansas; and 10
(ii)(a) On which a substantial function of the 11
service or application is to connect users in order to allow users to 12
interact socially with each other within the service or application. 13
(b) A service or application that provides 14
email or direct messaging shall not be considered to meet the criteria under 15
subdivision (8)(A)(ii)(a) of this section on the basis of that function 16
alone. 17
(B) "Social media platform" does not include an on line 18
service, a website, or an application if the predominant or exclusive 19
function is: 20
(i) Email; 21
(ii) Direct messaging consisting of messages, 22
photos, or videos that are sent between devices by electronic means if 23
messages are: 24
(a) Shared between the sender and the 25
recipient or recipients; 26
(b) Only visible to the sender and the 27
recipient or recipients; and 28
(c) Are not posted publicly; 29
(iii) A streaming service that: 30
(a) Provides only licensed media in a 31
continuous flow from the service, website, or application to the end user; 32
and 33
(b) Does not obtain a license to the media 34
from a user or account holder by agreement of the streaming service's terms 35
of service; 36 As Engrossed: S3/27/23 SB396
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(iv) News, sports, entertainment, or other conte nt 1
that is preselected by the provider and not user generated, including without 2
limitation if any chat, comment, or interactive functionality that is 3
provided is incidental to, directly related to, or dependent upon provision 4
of the content; 5
(v) Online shopping or e-commerce, if the 6
interaction with other users or account holders is generally limited to: 7
(a) The ability to post and comment on 8
reviews; 9
(b) The ability to display lists or 10
collections of goods for sale or wish lists; and 11
(c) Other functions that are focused on online 12
shopping or e-commerce rather than interaction between users or account 13
holders; 14
(vi) Business-to-business software that is not 15
accessible to the general public; 16
(vii) Cloud storage; 17
(viii) Shared document collaboration; 18
(ix) Providing access to or interacting with data 19
visualization platforms, libraries, or hubs; 20
(x) To permit comments on a digital news website, if 21
the news content is posted only by the provider of the digital news w ebsite; 22
(xi) For the purpose of providing or obtaining 23
technical support for the social media company’s social media platform, 24
products, or services; 25
(xii) Academic or scholarly research; 26
(xiii) Other research: 27
(a) If: 28
(1) The majority of the content is 29
posted or created by the provider of the online service, website, or 30
application; and 31
(2) The ability to chat, comment, or 32
interact with other users is directly related to the provider’s content; 33
(b) That is a classified advertising service 34
that only permits the sale of goods and prohibits the solicitation of 35
personal services; or 36 As Engrossed: S3/27/23 SB396
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(c) That is used by and under the direction of 1
an educational entity, including without limitation a: 2
(1) Learning management system; 3
(2) Student engagement program; and 4
(3) Subject-specific or skill-specific 5
program. 6
(C) "Social media platform" does not include a social 7
media platform that is controlled by a business entity that has generated 8
less than one hundred million dollars ($100,000,000) in annual gross revenue; 9
and 10
(9) "User" means a person who has access to view all or some of the 11
posts and content on a social media platform but is not an account holder. 12
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4-88-1102. Social media platforms — Reasonable age verification 14
methods — Parental consent required. 15
(a) A social media company shall not permit an Arkansas user who is a 16
minor to be an account holder on the social media company's social media 17
platform unless the minor has the express cons ent of a parent or legal 18
guardian. 19
(b)(1) A social media company shall verify the age of an account 20
holder. 21
(2) If an account holder is a minor, the social media company 22
shall confirm that a minor has consent under subsection (a) of this section 23
to become a new account holder, at the time an Arkansas user opens the 24
account. 25
(c)(1) A social media company shall use a third party vendor to 26
perform reasonable age verification before allowing access to the social 27
media company's social media platform. 28
(2) Reasonable age verification methods under subdivision (c)(1) 29
of this section include providing: 30
(A) A digitized identification card, including a digital 31
copy of a driver's license under § 27 -16-601 et seq.; 32
(B) Government-issued identification; or 33
(C) Any commercially reasonable age verification method. 34
35
4-88-1103. Liability for social media companies. 36 As Engrossed: S3/27/23 SB396
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(a)(1) A social media company that knowingly violates this subchapter 1
is liable if the social media company fails to perform a reasonable age 2
verification. 3
(2) If a social media company performs a reasonable age 4
verification, the social media company shall not retain any identifying 5
information of the individual after access to the social media platform has 6
been granted. 7
(b)(1) As authorized under § 4-88-103, a prosecutor may initiate an 8
enforcement action against a social media company that allegedly violates § 9
4-88-1102. 10
(2) As authorized under § 4 -88-104, the Attorney General may 11
initiate an enforcement action against a social med ia company that allegedly 12
commits a violation of § 4 -88-1102. 13
(c)(1) A social media company that violates this subchapter is liable 14
to an individual for: 15
(A) A penalty of two thousand five hundred dollars 16
($2,500) per violation, court costs, and reas onable attorney's fees as 17
ordered by the court; or 18
(B) Damages resulting from a minor accessing a social 19
media platform without his or her parent's or custodian's consent, including 20
court costs and reasonable attorney's fees as ordered by the court. 21
(d) This section does not: 22
(1) Apply to a news or public interest broadcast, website video, 23
report, or event; 24
(2) Affect the rights of a news -gathering organization; or 25
(3) Apply to cloud service providers. 26
(e) An internet service provider, or any of its affiliates or 27
subsidiaries, or search engines, shall not violate this subchapter solely by 28
providing access, connection to or from a website, or other information or 29
content on the internet, or a facility, system, or network that is not under 30
that internet service provider's control, including transmission, 31
downloading, intermediate storage, access software, or other service that 32
provides access or connectivity, to the extent the internet service provider 33
is not responsible for the creation of th e content or the communication on a 34
social media platform. 35
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4-88-1104. Liability for commercial entity or third party vendor. 1
(a) A commercial entity or third party vendor shall not retain any 2
identifying information of an individual after access to th e social media 3
platform has been granted. 4
(b) A commercial entity that is found to have knowingly retained 5
identifying information of an individual after access to the material is 6
granted is liable to the individual for damages resulting from the retention 7
of the identifying information, including court costs and reasonable 8
attorney's fees as ordered by the court. 9
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