AR
Arkansas Senate Bill SB396

Arkansas 2023 Regular Session

Arkansas Senate Bill SB396 Compare Versions

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11 Stricken language would be deleted from and underlined language would be added to present law.
2-Act 689 of the Regular Session
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54 State of Arkansas As Engrossed: S3/27/23 H4/4/23 1
65 94th General Assembly A Bill 2
76 Regular Session, 2023 SENATE BILL 396 3
87 4
98 By: Senators Dees, J. Petty 5
109 By: Representative Eubanks 6
1110 7
1211 For An Act To Be Entitled 8
1312 AN ACT TO CREATE THE SOCIAL MEDIA SAFETY ACT; TO 9
1413 REQUIRE AGE VERIFICA TION FOR USE OF SOCI AL MEDIA; TO 10
1514 CLARIFY LIABILITY FO R FAILURE TO PERFORM AGE 11
1615 VERIFICATION FOR USE OF SOCIAL MEDIA AND ILLEGAL 12
1716 RETENTION OF DATA; A ND FOR OTHER PURPOSE S. 13
1817 14
1918 15
2019 Subtitle 16
2120 TO CREATE THE SOCIAL MEDIA SAFETY ACT; TO 17
2221 REQUIRE AGE VERIFICATION FOR USE OF 18
2322 SOCIAL MEDIA; AND TO CLARIFY LIABILITY 19
2423 FOR FAILURE TO PERFORM AGE VERIFICATION 20
2524 FOR USE OF SOCIAL MEDIA AND ILLEGAL 21
2625 RETENTION OF DATA. 22
2726 23
2827 24
2928 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: 25
3029 26
3130 SECTION 1. Arkansas Code Title 4, Chapter 88, is amended to add an 27
3231 additional subchapter to read as follows: 28
3332 Subchapter 11 — Regulation of Social Media 29
3433 30
3534 4-88-1101. Definitions. 31
3635 As used in this subchapter: 32
3736 (1) "Account holder" means an individual who creates an account 33
3837 or a profile to use a social media platform; 34
3938 (2) "Arkansas user" means an individual who is a resident of the 35
4039 State of Arkansas and who accesses or attempts to access a social media 36 As Engrossed: S3/27/23 H4/4/23 SB396
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4544 platform while present in this state by accessing the social media platform 1
4645 using an Arkansas internet protocol address or otherwise known or believed to 2
4746 be in this state while using the social media platform; 3
4847 (3)(A) "Commercial entity" means a corporation, limited 4
4948 liability company, partnership, limited partnership, sole proprietorship, or 5
5049 other legally recognized entity. 6
5150 (B) "Commercial entity" includes a third party vendor; 7
5251 (4) "Digitized identification card" means a data file available 8
5352 on a mobile device that has c onnectivity to the internet through a state -9
5453 approved application that allows the mobile device to download the data file 10
5554 from the Office of Driver Services that contains all of the data elements 11
5655 visible on the face and back of a driver's license or identif ication card and 12
5756 displays the current status of the driver's license or identification card, 13
5857 including valid, expired, cancelled, suspended, revoked, active, or inactive; 14
5958 (5) "Minor" means an individual under eighteen (18) years of 15
6059 age; 16
6160 (6) "Reasonable age verification" means to confirm that a person 17
6261 seeking to access a social media platform is at least eighteen (18) years 18
6362 old; 19
6463 (7)(A) "Social media company" means an online forum that a 20
6564 company makes available for an account holder to: 21
6665 (i) Create a public profile, establish an account, 22
6766 or register as a user for the primary purpose of interacting socially with 23
6867 other profiles and accounts; 24
6968 (ii) Upload or create posts or content; 25
7069 (iii) View posts or content of other account 26
7170 holders; and 27
7271 (iv) Interact with other account holders or users, 28
7372 including without limitation establishing mutual connections through request 29
7473 and acceptance. 30
7574 (B) "Social media company" does not include a: 31
7675 (i) Media company that exclusively offers 32
7776 subscription content in which users follow or subscribe unilaterally and 33
7877 whose platforms' primary purpose is not social interaction; 34
7978 (ii) Social media company that allows a user to 35
8079 generate short video clips of dancing, voice overs, or other acts of 36 As Engrossed: S3/27/23 H4/4/23 SB396
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8584 entertainment in which the primary purpose is not educational or informative, 1
8685 does not meet the exclusion under subdivision (7)(B)(i) of this section; 2
8786 (iii) Media company that exclusively offers 3
8887 interacting gaming, virtual gaming, or an online service, that allows the 4
8988 creation and uploading of content for the purpose of interacting gaming, 5
9089 entertainment, or associated entertainment, and the communicatio n related to 6
9190 that content; 7
9291 (iv) Company that: 8
9392 (a) Offers cloud storage services, enterprise 9
9493 cybersecurity services, educational devices, or enterprise collaboration 10
9594 tools for kindergarten through grade twelve (K -12) schools; and 11
9695 (b) Derives less than twenty-five percent 12
9796 (25%) of the company's revenue from operating a social media platform, 13
9897 including games and advertising; or 14
9998 (v) Company that provides career development 15
10099 opportunities, including professional networking, job skills, learn ing 16
101100 certifications, and job posting and application services; 17
102101 (8)(A) "Social media platform" means a public or semipublic 18
103102 internet-based service or application: 19
104103 (i) That has users in Arkansas; and 20
105104 (ii)(a) On which a substantial function of the 21
106105 service or application is to connect users in order to allow users to 22
107106 interact socially with each other within the service or application. 23
108107 (b) A service or application that provides 24
109108 email or direct messaging shall not be considered to meet the crite ria under 25
110109 subdivision (8)(A)(ii)(a) of this section on the basis of that function 26
111110 alone. 27
112111 (B) "Social media platform" does not include an online 28
113112 service, a website, or an application if the predominant or exclusive 29
114113 function is: 30
115114 (i) Email; 31
116115 (ii) Direct messaging consisting of messages, 32
117116 photos, or videos that are sent between devices by electronic means if 33
118117 messages are: 34
119118 (a) Shared between the sender and the 35
120119 recipient or recipients; 36 As Engrossed: S3/27/23 H4/4/23 SB396
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125124 (b) Only visible to the sender and the 1
126125 recipient or recipients; and 2
127126 (c) Are not posted publicly; 3
128127 (iii) A streaming service that: 4
129128 (a) Provides only licensed media in a 5
130129 continuous flow from the service, website, or application to the end user; 6
131130 and 7
132131 (b) Does not obtain a license to the medi a 8
133132 from a user or account holder by agreement of the streaming service's terms 9
134133 of service; 10
135134 (iv) News, sports, entertainment, or other content 11
136135 that is preselected by the provider and not user generated, including without 12
137136 limitation if any chat, comment, or interactive functionality that is 13
138137 provided is incidental to, directly related to, or dependent upon provision 14
139138 of the content; 15
140139 (v) Online shopping or e -commerce, if the 16
141140 interaction with other users or account holders is generally limited to: 17
142141 (a) The ability to post and comment on 18
143142 reviews; 19
144143 (b) The ability to display lists or 20
145144 collections of goods for sale or wish lists; and 21
146145 (c) Other functions that are focused on online 22
147146 shopping or e-commerce rather than interaction between users or account 23
148147 holders; 24
149148 (vi) Business-to-business software that is not 25
150149 accessible to the general public; 26
151150 (vii) Cloud storage; 27
152151 (viii) Shared document collaboration; 28
153152 (ix) Providing access to or interacting with data 29
154153 visualization platforms, libraries, or hubs; 30
155154 (x) To permit comments on a digital news website, if 31
156155 the news content is posted only by the provider of the digital news website; 32
157156 (xi) For the purpose of providing or obtaining 33
158157 technical support for the social media company’s social media platform, 34
159158 products, or services; 35
160159 (xii) Academic or scholarly research; 36 As Engrossed: S3/27/23 H4/4/23 SB396
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164163
165164 (xiii) Other research: 1
166165 (a) If: 2
167166 (1) The majority of the content is 3
168167 posted or created by the provider of the online service, website, or 4
169168 application; and 5
170169 (2) The ability to chat, comment, or 6
171170 interact with other users is directly related to the provider’s content; 7
172171 (b) That is a classified advertising service 8
173172 that only permits the sale of goods and prohibits the solicitation of 9
174173 personal services; or 10
175174 (c) That is used by and under the direction of 11
176175 an educational entity, including without limitation a: 12
177176 (1) Learning management system; 13
178177 (2) Student engagement program; and 14
179178 (3) Subject-specific or skill-specific 15
180179 program. 16
181180 (C) "Social media platform" does not include a social 17
182181 media platform that is controlled by a business entity that has generated 18
183182 less than one hundred million dollars ($100,000,000) in annual gross revenue; 19
184183 and 20
185184 (9) "User" means a person who has access to view all or some of the 21
186185 posts and content on a social media platform but is not an account holder. 22
187186 23
188187 4-88-1102. Social media platforms — Reasonable age verification 24
189188 methods — Parental consent required. 25
190189 (a) A social media company shall not permit an Ark ansas user who is a 26
191190 minor to be an account holder on the social media company's social media 27
192191 platform unless the minor has the express consent of a parent or legal 28
193192 guardian. 29
194193 (b)(1) A social media company shall verify the age of an account 30
195194 holder. 31
196195 (2) If an account holder is a minor, the social media company 32
197196 shall confirm that a minor has consent under subsection (a) of this section 33
198197 to become a new account holder, at the time an Arkansas user opens the 34
199198 account. 35
200199 (c)(1) A social media company shall use a third party vendor to 36 As Engrossed: S3/27/23 H4/4/23 SB396
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205204 perform reasonable age verification before allowing access to the social 1
206205 media company's social media platform. 2
207206 (2) Reasonable age verification methods under subdivision (c)(1) 3
208207 of this section include providing: 4
209208 (A) A digitized identification card, including a digital 5
210209 copy of a driver's license under § 27 -16-601 et seq.; 6
211210 (B) Government-issued identification; or 7
212211 (C) Any commercially reasonable age verification method. 8
213212 9
214213 4-88-1103. Liability for social media companies. 10
215214 (a)(1) A social media company that knowingly violates this subchapter 11
216215 is liable if the social media company fails to perform a reasonable age 12
217216 verification. 13
218217 (2) If a social media company performs a reasonable age 14
219218 verification, the social media company shall not retain any identifying 15
220219 information of the individual after access to the social media platform has 16
221220 been granted. 17
222221 (b)(1) As authorized under § 4 -88-103, a prosecutor may initiate an 18
223222 enforcement action against a social media company that allegedl y violates § 19
224223 4-88-1102. 20
225224 (2) As authorized under § 4 -88-104, the Attorney General may 21
226225 initiate an enforcement action against a social media company that allegedly 22
227226 commits a violation of § 4 -88-1102. 23
228227 (c)(1) A social media company that violates this subchapter is liable 24
229228 to an individual for: 25
230229 (A) A penalty of two thousand five hundred dollars 26
231230 ($2,500) per violation, court costs, and reasonable attorney's fees as 27
232231 ordered by the court; or 28
233232 (B) Damages resulting from a minor accessing a social 29
234233 media platform without his or her parent's or custodian's consent, including 30
235234 court costs and reasonable attorney's fees as ordered by the court. 31
236235 (d) This section does not: 32
237236 (1) Apply to a news or public interest broadcast, website video, 33
238237 report, or event; 34
239238 (2) Affect the rights of a news -gathering organization; or 35
240239 (3) Apply to cloud service providers. 36 As Engrossed: S3/27/23 H4/4/23 SB396
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245244 (e) An internet service provider, or any of its affiliates or 1
246245 subsidiaries, or search engines, sha ll not violate this subchapter solely by 2
247246 providing access, connection to or from a website, or other information or 3
248247 content on the internet, or a facility, system, or network that is not under 4
249248 that internet service provider's control, including transmissio n, 5
250249 downloading, intermediate storage, access software, or other service that 6
251250 provides access or connectivity, to the extent the internet service provider 7
252251 is not responsible for the creation of the content or the communication on a 8
253252 social media platform. 9
254253 10
255254 4-88-1104. Liability for commercial entity or third party vendor. 11
256255 (a) A commercial entity or third party vendor shall not retain any 12
257256 identifying information of an individual after access to the social media 13
258257 platform has been granted. 14
259258 (b) A commercial entity that is found to have knowingly retained 15
260259 identifying information of an individual after access to the material is 16
261260 granted is liable to the individual for damages resulting from the retention 17
262261 of the identifying information, including court costs and reasonable 18
263262 attorney's fees as ordered by the court. 19
264263 20
265264 SECTION 2. DO NOT CODIFY. EFFECTIVE DATE. This act is effective on 21
266265 and after September 1, 2023. 22
267266 23
268267 /s/Dees 24
269268 25
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271-APPROVED: 4/11/23 27
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