The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1448
INTRODUCER: Senator Gruters
SUBJECT: Transparency in Social Media
DATE: January 29, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Favorable
2. ACJ
3. FP
I. Summary:
SB 1448 creates the “Transparency in Social Media Act,” to require each foreign-adversary-
owned entity
1
operating a social media platform in Florida to publicly disclose the core
functional elements of the social media platform’s content curation and algorithms. The
disclosures must identify the following:
Factors that influence content ranking and visibility;
Measures taken to address misinformation and harmful content; and
The process of personalization and targeting of content.
The bill also requires each foreign-adversary-owned entity to make publicly available the source
code of its algorithm through an open-source license, as well as implement a user verification
system for each user and organization that purchased advertisements concerning social or
political issues.
The Department of Legal Affairs is required to enforce the provisions of the bill.
The bill takes effect July 1, 2024.
II. Present Situation:
Internet and Social Media Platforms
There are many ways in which individuals access computer systems and interact with systems
and other individuals on the Internet. Examples include:
1
The United States Department of Commerce has identified China (including Hong Kong), Cuba, Iran, North Korea, Russia,
and the Nicolás Maduro regime in Venezuela as foreign adversaries. See 15 CFR § 7.4.
REVISED: BILL: SB 1448 Page 2
Social media sites, which are websites and applications that allow users to communicate
informally with others, find people, and share similar interests;
2
Internet platforms, which are servers used by an Internet provider to support Internet access
by their customers;
3
Internet search engines, which are computer software used to search data (such as text or a
database) for specified information;
4
and
Access software providers, which are providers of software (including client or server
software) or enabling tools for content processing.
5
Such platforms earn revenue through various modes and models. Examples include:
Data monetization.
6
This uses data that is gathered and stored on the millions of users that
spend time on free content sites, including specific user location, browsing habits, buying
behavior, and unique interests. This data can be used to help e-commerce companies tailor
their marketing campaigns to a specific set of online consumers. Platforms that use this
model are typically free for users to use.
7
Subscription or membership fees. This model requires users pay for a particular or unlimited
use of the platform infrastructure.
8
Transaction fees. This model allows platforms to benefit from every transaction that is
enabled between two or more actors. An example is AirBnB, where users transacting on the
site are charged a fee.
9
Trade Secrets
Generally, trade secrets are intellectual property rights on confidential information that are used
by a business and provide an economic advantage to that business.
10
2
DelValle Institute Learning Center, Social Media Platforms, available at
https://delvalle.bphc.org/mod/wiki/view.php?pageid=65 (last visited Jan. 29, 2024).
3
IGI Global, Internet Platform, available at https://www.igi-global.com/dictionary/internet-platform/15441 (last visited Jan.
29, 2024).
4
Merriam Webster, Search Engine, available at https://www.merriam-webster.com/dictionary/search%20engine (last visited
Jan. 29, 2024).
5
47 U.S.C. § 230(f)(4) defining “access software provider to mean a provider of software (including client or server
software), or enabling tools that do any one or more of the following: (i) filter, screen, allow, or disallow content; (ii) pick,
choose, analyze, or digest content; or (iii) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or
translate content.
6
The Alexander von Humboldt Institute for Internet and Society, How do digital platforms make their money?, July 29,
2019, available at https://www.hiig.de/en/how-do-digital-platforms-make-their-money/ (last visited Jan. 29, 2024).
7
Investopedia, How Do Internet Companies Profit with Free Services?, available at
https://www.investopedia.com/ask/answers/040215/how-do-internet-companies-profit-if-they-give-away-their-services-
free.asp#:~:text=Profit%20Through%20Advertising,content%20is%20through%20advertising%20revenue.&text=Each%20o
f%20these%20users%20represents,and%20services%20via%20the%20Internet (last visited Jan. 29, 2024).
8
HIIS, supra note 6.
9
Id.
10
See The Florida Bar, Trade Secret (Dec. 14, 2022) https://www.floridabar.org/practice-areas/trade-secrets/ (last visited Jan.
29, 2024). BILL: SB 1448 Page 3
Section 812.081, F.S., defines a “trade secret” as information
11
used in the operation of a
business, which provides the business an advantage or an opportunity to obtain an advantage,
over those who do not know or use it. The test provided for in statute, and adopted by Florida
courts,
12
requires that a trade secret be actively protected from loss or public availability to any
person not selected by the secret’s owner to have access thereto, and be:
Secret;
Of value;
For use or in use by the business; and
Of advantage to the business, or providing an opportunity to obtain an advantage, over those
who do not know or use it.
13
Penalties
Florida law criminalizes the disclosure or theft of trade secrets. For example:
Section 815.04, F.S., makes it a third degree felony
14
for a person to willfully, knowingly,
and without authorization disclose or take data, programs, or supporting documentation that
are trade secrets that reside or exist internal or external to a computer, computer system,
computer network, or electronic device.
15
Section 812.081, F.S., makes it a third degree felony for a person to steal, embezzle, or copy
without authorization an article that represents a trade secret, when done with an intent to:
o Deprive or withhold from the trade secret’s owner the control of a trade secret, or
o Appropriate a trade secret to his or her own use or to the use of another.
Florida Data Privacy Regulations
In 2023, the Florida Legislature passed SB 262, which created a unified scheme to allow
Florida’s consumers to control the digital flow of their personal information. SB 262 was signed
by the Governor on June 6, 2023.
16
Among other things, SB 262 created ch. 501, part V, F.S.,
which takes effect on July 1, 2024, and gives Florida consumers the right to:
Confirm and access their personal data;
Delete, correct, or obtain a copy of that personal data;
Opt out of the processing of personal data for the purposes of targeted advertising, the sale of
personal data, or profiling in furtherance of a decision that produces a legal or similarly
significant effect concerning a consumer;
Opt out of the collection or processing of sensitive data, including precise geolocation data;
and
11
A trade secret may manifest as any scientific, technical, or commercial information, including any design, process,
procedure, list of suppliers, list of customers, business code, or improvement thereof. Section 812.081, F.S.
12
See, e.g., Sepro Corp. v. Dep’t. of Envt’l. Prot., 839 So. 2d 781 (Fla. 1
st
DCA 2003).
13
Section 812.081(1)(c), F.S.
14
A third degree felony is punishable by up to 5 years imprisonment and a $5,000 fine. See ss. 775.082 and 775.083, F.S.
15
The offense is a second degree felony if committed for the purpose of creating or executing any scheme or artifice to
defraud or to obtain property.
16
See ch. 2023-201, Laws of Fla. BILL: SB 1448 Page 4
Opt out of the collection of personal data collected through the operation of a voice
recognition or facial recognition feature.
The data privacy provisions of ch. 501, part V, F.S., generally apply to “controllers,” businesses
that collect Florida consumers’ personal data, make in excess of $1 billion in global gross annual
revenues, and meet one of the following thresholds:
Derives 50 percent or more if its global gross annual revenues from the online sale of
advertisements, including from providing targeted advertising or the sale of ads online;
Operates a consumer smart speaker and voice command component service with an
integrated virtual assistant connected to a cloud computing service that uses hands-free
verbal activation; or
Operates an app store or digital distribution platform that offers at least 250,000 different
software applications for consumers to download and install.
A controller who operates an online search engine is required to make available an up-to date
plain language description of the main parameters that are most significant in determining
ranking and the relative importance of those main parameters, including the prioritization or
deprioritization of political partisanship or political ideology in search results. A controller must
also conduct and document a data protection assessment of certain processing activities
involving personal data. Additionally, a controller is required to provide consumers with a
reasonably accessible and clear privacy notice, updated at least annually.
A violation of ch. 501, part V, F.S is an unfair and deceptive trade practice actionable under ch.
501, part II, F.S., to be enforced by the Department of Legal Affairs (DLA). The DLA may
provide a right to cure a violation of ch. 501, part V, F.S., by providing written notice of the
violation and then allowing a 45-day period to cure the alleged violation. The DLA is required to
make a report publicly available by February 1 each year on the DLA’s website that describes
any actions it has undertaken to enforce ch. 501, part V, F.S.
SB 262 also created s. 112.23, F.S., which prohibits employees of a governmental entity from
using their position or any state resources to communicate with a social media platform to
request that it remove content or accounts. Additionally, a governmental entity cannot initiate or
maintain any agreements with a social media platform for the purpose of content moderation.
These prohibitions do not apply to routine account maintenance, attempts to remove accounts or
content pertaining to the commission of a crime, or efforts to prevent imminent bodily harm, loss
of life, or property damage.
Florida Deceptive and Unfair Trade Practices Act
History and Purpose
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) became law in 1973.
17
The
FDUTPA is a consumer and business protection measure that prohibits unfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or practices in trade or
17
Ch. 73-124, Laws of Fla.; codified at part II of ch. 501, F.S. BILL: SB 1448 Page 5
commerce.
18
The FDUTPA is based on federal law, and s. 501.204(2), F.S., provides that it is the
intent of the Legislature that due consideration and great weight must be given to the
interpretations of the Federal Trade Commission and the federal courts relating to section 5 of
the Federal Trade Commission Act.
19
The State Attorney or the Department of Legal Affairs may bring actions when it is in the public
interest on behalf of consumers or governmental entities.
20
The Office of the State Attorney may
enforce violations of the FDUTPA if the violations take place in its jurisdiction.
21
The
Department of Legal Affairs has enforcement authority if the violation is multi-jurisdictional, the
state attorney defers in writing, or the state attorney fails to act within 90 days after a written
complaint is filed.
22
Consumers may also file suit through private actions.
23
Remedies under the FDUTPA
The Department of Legal Affairs and the State Attorney, as enforcing authorities, may seek the
following remedies:
Declaratory judgments.
Injunctive relief.
Actual damages on behalf of consumers and businesses.
Cease and desist orders.
Civil penalties of up to $10,000 per willful violation.
24
Remedies for private parties are limited to the following:
A declaratory judgment and an injunction where a person is aggrieved by a FDUTPA
violation.
Actual damages, attorney fees, and court costs, where a person has suffered a loss due to a
FDUTPA violation.
25
18
See s. 501.202, F.S. Trade or commerce means the advertising, soliciting, providing, offering, or distributing, whether by
sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article,
commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce,
however denominated, including any nonprofit or not-for-profit person or activity. See s. 501.203(8), F.S.
19
See s 501.204(2), F.S.
20
See ss. 501.203(2), 501.206, and 501.207, F.S.
21
Section 501.203(2), F.S.
22
Id.
23
Section 501.211, F.S.
24
Sections 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into general revenue. Section 501.2075,
F.S. Enforcing authorities may also request attorney fees and costs of investigation or litigation. Section 501.2105, F.S.
25
Section 501.211(1) and (2), F.S. BILL: SB 1448 Page 6
Freedom of Speech and Internet Platforms
Section 230
The federal Communications Decency Act (CDA) was passed in 1996 “to protect children from
sexually explicit Internet content.”
26
47 U.S. Code § 230 (Section 230) was added as an
amendment to the CDA to maintain the robust nature of Internet communication and,
accordingly, to keep government interference in the medium to a minimum.”
27
Congress stated in Section 230 that “[i]t is the policy of the United States—(1) to promote the
continued development of the Internet and other interactive computer services and other
interactive media; [and] (2) to preserve the vibrant and competitive free market that presently
exists for the Internet and other interactive computer services, unfettered by Federal or State
regulation.”
28
Specifically, Section 230 states that no provider or user of an interactive computer service may
be held liable on account of:
29
Any action voluntarily taken in good faith to restrict access to or availability of material that
the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such material is constitutionally
protected; or
Any action taken to enable or make available to information content providers or others the
technical means to restrict access to material from any person or entity that is responsible for
the creation or development of information provided through any interactive computer
service.
Section 230 eased Congressional concern regarding the outcome of two inconsistent judicial
decisions,
30
both of which applied traditional defamation law to internet providers.
31
The first
decision held that an interactive computer service provider could not be liable for a third party's
defamatory statement, however the second decision imposed liability where a service provider
filtered content in an effort to block obscene material.
32
To provide clarity, Section 230 provides
that “[n]o provider ... of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.”
33
In light of the
26
See 1 Force v. Facebook, Inc., 934 F.3d 53, 63 (2d Cir. 2019) (citing FTC v. LeadClick Media, LLC, 838 F.3d 158, 173 (2d
Cir. 2016) (citing 141 Cong. Rec. S1953 (daily ed. Feb. 1, 1995) (statement of Sen. Exon)).
27
Force, 934 F.3d at 63 (quoting Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015) (quoting Zeran v. Am.
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)).
28
47 U.S.C. § 230(b)(1)–(2).
29
47 U.S.C. § 230(c).
30
Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Servs. Co., No.
31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).
31
Force, 934 F.3d at 63 (quoting LeadClick, 838 F.3d at 173).
32
Force, 934 F.3d at 63 (quoting LeadClick, 838 F.3d at 173 (citing 141 Cong. Rec. H8469-70 (daily ed. Aug. 4, 1995)
(statement of Rep. Cox))).
33
47 U.S.C. § 230(c)(1). BILL: SB 1448 Page 7
objectives of Congress, the Circuits are in general agreement that the text of Section 230(c)(1)
should be construed broadly in favor of immunity.
34
Section 230 specifically addresses how the federal law affects other laws. Section 230 prohibits
all inconsistent causes of action and prohibits liability imposed under any state or local law.
35
Section 230 does not affect federal criminal law, intellectual property law, the Electronic
Communications Privacy Act of 1986, or sex trafficking law.
There have been criticisms of the broad immunity provisions or liability shields which force
individuals unhappy with third-party content to sue the user who posted it. While this immunity
has fostered the free flow of ideas on the Internet, critics have argued that Section 230 shields
publishers from liability for allowing harmful content.
36
Congressional and executive proposals
to limit immunity for claims relating to platforms purposefully hosting content from those
engaging in child exploitation, terrorism, and cyber-stalking have been introduced.
37
Bills have
been filed that would require internet platforms to have clear content moderation policies, submit
detailed transparency reports, and remove immunity for platforms that engage in certain
behavioral advertising practices.
38
Proposals have also been offered to limit the liability shield
for internet providers who restrict speech based on political viewpoints.
39
Recently, the United States Supreme Court heard Twitter, Inc. v. Taamneh and Gonzalez v.
Google; these cases alleged that Twitter and Google aided and abetted terrorists who posted
content to their platforms, and a key issue in both cases was whether social media companies can
be held liable for their targeted recommendation algorithms.
40
However, the court decided both
cases on alternative grounds, which leaves the question unanswered.
Freedom of Speech
The First Amendment of the United States Constitution protects the right to freedom of
expression from government interference. The First Amendment is applicable to the states
through the Due Process Clause of the Fourteenth Amendment.
41
“The First Amendment assures
the broadest tolerable exercise of free speech, free press, and free assembly, not merely for
religious purposes, but for political, economic, scientific, news, or informational ends as well.”
42
“Online speech is equally protected under the First Amendment as there is ‘no basis for
qualifying the level of First Amendment scrutiny that should be applied’ to online speech.”
43
34
Force, 934 F.3d at 63 (quoting LeadClick, 838 F.3d at 173).
35
47 U.S.C. § 230(e).
36
Zoe Bedell and John Major, What’s Next for Section 230? A Roundup of Proposals Lawfare, (July 29, 2020)
https://www.lawfareblog.com/whats-next-section-230-roundup-proposals (last visited Jan. 29, 2024).
37
Id.
38
Bedell, supra note 20; PACT Act, S.4066, 116th Cong. (2020); BAD ADS Act, S.4337, 116th Cong. (2020).
39
Bedell, supra note 20; Limiting Section 230 Immunity to Good Samaritans Act, S.3983, 116th Cong. (2020).
40
See Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023) and Gonzalez v. Google LLC, 143 S. Ct. 1191 (2023).
41
See De Jonge v. Oregon, 299 U.S. 353, 364–65(1937)(incorporating right of assembly);(incorporating right of freedom of
speech).
42
Douglas v. City of Jeannette (Pennsylvania), 319 U.S. 157, 179, (1943) (Jackson, J., concurring in result).
43
Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997). BILL: SB 1448 Page 8
It is well established that a government regulation based on the content of speech is
presumptively invalid and will be upheld only if it is necessary to advance a compelling
governmental interest, precisely tailored to serve that interest, and is the least restrictive means
available for establishing that interest.
44
The government bears the burden of demonstrating the
constitutionality of any such content-based regulation.
45
The United States Supreme Court has recognized that First Amendment protection extends to
corporations.
46
“This protection has been extended by explicit holdings to the context of political
speech.”
47
Under these precedents, it is well settled that political speech does not lose First
Amendment protection “simply because its source is a corporation.”
48
Generally, the government
may not require a corporation to host another’s speech absent a showing of a compelling state
interest.
49
Supremacy Clause, Commerce Clause, and Bills of Attainder
The U.S. Constitution’s Supremacy Clause establishes that federal statutes, treaties, and the U.S.
Constitution are the “supreme Law of the Land.”
50
Federal law may preempt state action that thwarts federal law in three ways:
By an express statement of its intent to occupy a field. Express preemption need not be total,
however—it can preempt all state laws or only certain state laws.
With “a framework of regulation so pervasive that Congress left no room for the States to
supplement it or where the federal interest is so dominant that the federal system will be
assumed to preclude enforcement of state laws on the same subject.”
51
Where state law conflicts, leaving an actor to choose whether to adhere to state or federal
law.
52
The state law may also be subject to conflict preemption where it “stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of
Congress.”
53
44
Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 665-66 (2004).
45
Id. at 660.
46
Citizens United v. Federal Election Commission, 558 U.S. 310, 342 (2010).
47
Id. (citing NAACP v. Button v. 371 U.S.415, 428-429 (1963); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936)).
48
Id. (citing First Nat. Bank of Boston v. Bellotti, 435 U.S. at 784 (1978); Pacific Gas & Elec. Co. v. Public Util. Comm'n of
Cal., 475 U.S. 1, 8, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion) (“The identity of the speaker is not decisive in
determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion,
debate, and the dissemination of information and ideas' that the First Amendment seeks to foster” (quoting Bellotti, 435 U.S.,
at 783)).
49
Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530 (1980); First National Bank of Boston v. Belliotti,
438 U.S. (1978); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Pacific Gas & Electric Co. v. Public
Utilities Commission of California, 475 U.S. 1 (1986).
50
U.S. CONST., Art. VI, cl. 2.
51
Arizona v. U.S., 567 U.S. 387, 399 (2012).
52
Crosby v. Nat’l. Foreign Trade Council, 530 U.S. at 372 (2000).
53
Nat’l Foreign Trade Council, Inc. v. Giannoulias, 523 F. Supp. 2d 731 (N.D. Ill. Feb. 23, 2007), quoting Hines v.
Davidowitz, 312 U.S. 52, 67 (1941). BILL: SB 1448 Page 9
The federal government’s authority to act in the realm of foreign affairs is vested by the U.S.
Constitution.
54
State laws that intrude into this field of foreign affairs, even where not preempted
by prior federal action, improperly impact foreign affairs and are therefore invalid.
55
Courts have
generally held, however, that the state’s intrusion must have more than an “incidental effect” on
foreign affairs in order to be considered an encroachment onto the federal government’s
powers.
56
Article I, section 8, clause 3 of the U.S. Constitution grants Congress the power to “regulate
commerce with foreign nations ....” Conversely, this provision serves as a limitation on states’
authority to encroach onto the realm of foreign commerce where such action creates a risk of
conflicts with foreign governments or impedes the federal government’s ability to speak with
one voice in regulating industry affairs with foreign states.
57
The “dormant foreign commerce
power”
58
voids state acts upon foreign commerce because of the Constitution's overriding
concern for national uniformity in foreign commerce—even in instances when Congress has not
affirmatively acted.
59
Courts also generally subject state action to a heightened scrutiny that
assumes the supremacy of federal action in the realm of foreign relations.
60
Additionally, Congress has the power to regulate commerce among the states.
61
Though phrased
as a grant of regulatory power to Congress, the Commerce Clause has long been understood to
have a negative or dormant aspect that denies the states the power to unjustifiably discriminate
against or burden the interstate flow of articles of commerce.
62
Article I, section 9, of the U.S. Constitution provides that Congress shall pass “No Bill of
Attainder or ex post facto Law.” Similarly, Article I, section 10, of the U.S. Constitution
prohibits the states from enacting bills of attainder. The Supreme Court has described a bill of
attainder as “a law that legislatively determines guilt and inflicts punishment upon an identifiable
individual without provision of the protections of judicial trial.”
63
54
See, e.g., U.S. CONST., Art. I, s. 8 (power to declare war, maintain a military, and regulate foreign commerce); U.S.
CONST., Art. II, s. 2 (power to enter into treaties); U.S. CONST., Art. III, s. 2 (power to hear case involving foreign states and
citizens).
55
Zschernig v. Miller, 389 U.S. 429 (1968); American Ins. Ass’n. v. Garamendi, 539 U.S. 396 (2003) (finding that the
President’s powers in foreign policy were so great as to outweigh any need for a direct expression of preemption.)
56
Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
57
Japan Line v. County of Los Angeles, 441 U.S. 434, 446 (1979).
58
See generally, Stephen Mulligan, Congressional Research Service, Constitutional Limits on States’ Power over Foreign
Affairs, 3-4 (Aug. 15, 2022), available at https://crsreports.congress.gov/product/pdf/LSB/LSB10808 (last visited Jan. 29,
2024).
59
United States v. Davila-Mendoza, 972 F.3d 1264 (11th Cir. 2020).
60
“The premise […] is that the Commerce Clause analysis is identical, regardless of whether interstate or foreign commerce
is involved. This premise […] must be rejected. When construing Congress’ power to ‘regulate Commerce with foreign
Nations,’ a more extensive constitutional inquiry is required.” Japan Line at 446.
61
U.S. CONST., Art. I, s. 8
62
Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality of Or., 511 U.S. 93, 98 (1994).
63
See Nixon v. Administrator of General Services, 433 U.S. 425 (1977). BILL: SB 1448 Page 10
The International Emergency Economic Powers Act (IEEPA)
The IEEPA gives the President of the United States regulatory authority over a variety of
economic transactions in the event of a national emergency that constitutes an unusual and
extraordinary threat.
64
As of September 1, 2023, Presidents had declared 69 national emergencies
invoking IEEPA, 39 of which are ongoing.
65
Executive Orders 13,873
66
and 14,034 invoked
IEEPA authority in response to concerns about foreign adversaries’ access to American digital
data.
67
Executive Order 13,873, references risks posed by foreign adversaries, which the order
defines as any foreign government or foreign person “engaged in a long-term pattern or serious
instances of conduct significantly adverse” to U.S. security or the safety of U.S. persons.
68
Subsequently, the Department of Commerce identified China (including Hong Kong), Cuba,
Iran, North Korea, Russia, and the Nicolás Maduro regime in Venezuela as foreign adversaries.
69
Florida SB 7072 (2021)
In 2021, the Florida Legislature passed SB 7072, which addressed concerns related to social
media platforms. SB 7072 was signed by the Governor on May 24, 2021. Section 501.2041, F.S.,
was created, which provides that a social media platform must:
Publish standards used for determining how to censor, deplatform, and shadow ban users,
and apply such standards in a consistent manner;
64
See Congressional Research Service, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions (December 8,
2023), available at
https://crsreports.congress.gov/product/pdf/LSB/LSB10972#:~:text=Commerce%20Clause%3A%20The%20court%20found,
concept%20Montana%20did%20not%20contest. (last visited Jan. 29, 2024). See also 50 U.S.C. § 1701.
65
See Congressional Research Service, The International Emergency Economic Powers Act: Origins, Evolution, and Use
(September 28, 2023), available at https://crsreports.congress.gov/product/pdf/R/R45618 (last visited Jan. 29, 2024).
66
The Supply Chain Rule implements Executive Orders 13873 and 14034, titled Securing the Information and
Communications Technology and Services Supply Chain (ICTS). Invoking National Emergencies Act (50 U.S.C. § 1601)
and citing the International Emergency Economic Powers Act (50 U.S.C. §1701), then-President Trump declared a national
emergency because of the threat of foreign adversaries exploiting vulnerabilities in ICTS. In response to this threat, Executive
Order 13873 prohibits transactions involving foreign-owned ICTS that present (1) an undue risk of sabotage or subversion to
ICTS in the United States, (2) an undue risk of catastrophic effects on the security or resiliency of critical infrastructure or the
digital economy in the United States, or (3) an unacceptable risk to U.S. national security or the security and safety of U.S.
persons. The order delegates implementation to the Department of Commerce. In June 2021, President Biden issued
Executive Order 14034, which directed the Secretary of Commerce to evaluate the risks posed by connected software
applications, commonly called “apps.” The order identified additional criteria for Commerce to consider when evaluating
transactions involving apps under the Supply Chain Rule. Factors include the app’s capacity to enable espionage and the
sensitivity of data collected. In June 2023, Commerce published a final rule (88 FR 39353), effective July 17, 2023, that
expressly includes apps in the definition of ICTS and adds app-specific risk factors to the Supply Chain Rule. See
Congressional Research Service, The Information and Communications Technology and Services (ICTS) Rule and Review
Process (June 22, 2023), available at https://crsreports.congress.gov/product/pdf/IF/IF11760 (last visited Jan. 29, 2024).
67
See Congressional Research Service, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions (December 8,
2023), available at
https://crsreports.congress.gov/product/pdf/LSB/LSB10972#:~:text=Commerce%20Clause%3A%20The%20court%20found,
concept%20Montana%20did%20not%20contest (last visited Jan. 29, 2024).
68
Id.
69
15 CFR § 7.4.
BILL: SB 1448 Page 11
Inform each user about any changes to its user rules, terms, and agreements before
implementing the changes and not make changes more than once every 30 days;
Notify a user in a specified manner censoring or deplatforming the user;
Allow a user to request the number of other individuals who were shown the user's content or
posts, and provide such information upon such request by the user;
Provide users with an option to opt out of post-prioritization and shadow banning algorithms
to allow sequential or chronological posts and content;
Provide users with an annual notice on the use of algorithms for post-prioritization and
shadow banning and reoffer annual notice on the use of algorithms for post-prioritization and
shadow banning;
Ensure that posts by or about candidates for office in Florida are not shadow banned;
Allow a user who has been deplatformed to access or retrieve all of the user’s information,
content, material, and data for at least 60 days after the user receives the required notice; and
Ensure that journalistic enterprises are not censored, deplatformed, or shadow banned.
In s. 501.2041, F.S., “Social media platform” is defined as any information service, system,
Internet search engine, or access software that:
Provides or enables computer access by multiple users to a computer server, including an
Internet platform and/or a social media site;
Operates as a sole proprietorship, partnership, limited liability company, corporation,
association, or other legal entity;
Does business in Florida; and
Satisfies at least one of the following thresholds:
o Annual gross revenues in excess of $100,000,000, as adjusted in January of each odd
numbered year to reflect any increase in the Consumer Price Index; or
o At least 100,000,000 monthly individual platform participants globally.
Section 501.2041, F.S., also provides for enforcement by permitting the Department of Legal
Affairs to find a social media platform who fails to comply with the requirements stated above to
be in violation of the Florida Deceptive and Unfair Trade Practices Act. Additionally, a user may
bring a private cause of action against a social media platform for failing to consistently apply
certain standards for censoring or deplatforming without proper notice.
Litigation History
Immediately after the bill was signed by the Governor, but prior to the bill’s effective date of
July 1, 2021, the plaintiff filed a complaint in the U.S. District Court for the Northern District of
Florida challenging the constitutionality of many of the bill’s provisions and exceptions, and
immediately moved the Court for a preliminary injunction. The District Court granted the
preliminary injunction on June 30, 2021.
70
The filed complaint alleges the following:
70
NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082 (N.D. Fla. 2021) (NetChoice, LLC, and the Computer & Communications
Industry Association are trade associations whose members include social media providers). BILL: SB 1448 Page 12
Count 1 of the complaint alleges the Act “violates the First Amendment's free-speech clause
by interfering with the providers’ editorial judgment, compelling speech, and prohibiting
speech.”
Count 2 alleges the Act “is vague in violation of the Fourteenth Amendment.”
Count 3 alleges the Act “violates the Fourteenth Amendment's equal protection clause by
impermissibly discriminating between providers that are or are not under common ownership
with a large theme park and by discriminating between providers that do or do not meet the
Act's size requirements.”
Count 4 alleges the Act “violates the Constitution's dormant commerce clause.”
Count 5 alleges the Act “is preempted by 47 U.S.C. § 230(e)(3), which, together with §
230(c)(2)(A), expressly prohibits imposition of liability on an interactive computer service—
this includes a social-media provider—for action taken in good faith to restrict access to
material the service finds objectionable.”
71
The District Court indicated that the law was not clearly settled related to issues about First
Amendment treatment of social-media providers: “The plaintiffs say, in effect, that they should
be treated like any other speaker. The State says, in contrast, that social-media providers are
more like common carriers, transporting information from one person to another much as a train
transports people or products from one city to another. The truth is in the middle.”
72
The District Court determined that strict scrutiny applied as the standard to be used:
“Viewpoint- and content-based restrictions on speech are subject to strict scrutiny. A law
restricting speech is content-based if it “applies to particular speech because of the topic
discussed or the idea or message expressed.” Laws that are facially content-neutral, but that
cannot be justified without reference to the content of the regulated speech, or that were adopted
because of disagreement with the speaker's message, also must satisfy strict scrutiny.”
73
The District Court enjoined the State from enforcing any provision of s. 501.2041, F.S., on
preemption and First Amendment grounds.
The State filed an appeal of the District Court’s decision in the U.S. Court of Appeals for the
Eleventh Circuit.
On May 23, 2022, the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court’s
preliminary injunction in part, and vacated and remanded it in part.
74
The Eleventh Circuit found the following provisions of SB 7072, to likely violate the First
Amendment:
Section 106.072(2), F.S., which pertains to candidate deplatforming;
71
NetChoice, LLC, 546 F. Supp. 3d at 1085.
72
NetChoice, LLC, 546 F. Supp. 3d at 1091.
73
NetChoice, LLC, 546 F. Supp. 3d at 1093.
74
Moody v. NetChoice, LLC, 34 F.4th 1196 (11th Cir. 2022). BILL: SB 1448 Page 13
Section 501.2041(2)(h), F.S., which pertains to the use of algorithms for the purpose of post-
prioritization or shadow banning candidates;
Section 501.2041(2)(j), F.S., which pertains to journalistic enterprises;
Section 501.2041(2)(b), F.S., which pertains to the consistent application of censorship,
deplatforming, and shadow banning standards;
Section 501.2041(2)(c), F.S., which limits the number of changes that can be made to once
every 30 days;
Sections 501.2041(2)(f) and 501.2041(2)(g), F.S., which pertain to categorizing algorithms
used for post-prioritization and shadow banning, as well as allowing for user opt-outs; and
Section 501.2041(2)(d), F.S., which pertains to notifying a user when their content is
censored or shadow banned.
However, the Eleventh Circuit found the following provisions of SB 7072, to likely not violate
the First Amendment:
Section 501.2041(2)(a), F.S., which pertains to the publication of standards used for
determining how to censor, deplatform, and shadow ban;
Section 501.2041(2)(c), F.S., which pertains to informing users to any changes to its user
rules, terms, and agreements before implementing the changes;
Section 501.2041(2)(e), F.S., which pertains to user view counts;
Section 501.2041(2)(i), F.S., which pertains to user data access; and
Section 106.072(4), F.S., which pertains to free advertising for a candidate.
75
The United States Supreme Court is set to hear oral arguments on February 26, 2024.
Effect of Proposed Changes:
The bill creates s. 501.20411, F.S., to be cited as the “Transparency in Social Media Act.”
Additionally, the Legislature finds that:
Social media platforms play a significant role in shaping public discourse and opinions;
Algorithms used by social media platforms can influence user behavior and content visibility;
Transparency in the functioning of such algorithms and in political and social advertising is
vital for safeguarding democratic values and user privacy; and
Ownership of social media platforms by foreign entities can raise concerns regarding foreign
influence and data security.
The bill provides the following definitions:
“Social media platform” means a public online service that allows users to create and share
or participate in social networking; and
“Social or political advertising” means any advertisement on a social media platform that
discusses social or political issues or is intended to influence public opinion or electoral
outcomes.
75
Moody 34 F.4th 1196. BILL: SB 1448 Page 14
The bill requires each foreign-adversary owned entity operating a social media platform in
Florida to publicly disclose the core functional elements of the social media platform’s content
curation and algorithms. The disclosures must identify the following:
Factors that influence content ranking and visibility;
Measures taken to address misinformation and harmful content; and
The process of personalization and targeting of content.
The bill requires each foreign-adversary-owned entity operating a social media platform in
Florida to make publicly available the source code of its algorithm through an open-source
license.
The bill also requires each foreign-adversary-owned entity operating a social media platform to
implement a user verification system for each user and organization that purchased
advertisements concerning social or political issues. The system must verify key identifying
information, including citizenship, residency, and age of the user or the individuals that own the
organization, as applicable. Once verified, the identity of the purchaser of each social or political
advertisement must be disclosed with the advertisement.
A foreign-adversary-owned entity operating a social media platform that violates the provisions
of this bill is liable up to $10,000 for each discrete violation. The Department of Legal Affairs is
given enforcement authority.
The bill takes effect July 1, 2024.
III. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
See the “Present Situation,” in Section II of this bill analysis. BILL: SB 1448 Page 15
IV. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Foreign-adversary-owned entities will be required to implement the provisions in the bill,
which includes disclosure requirements and a user verification system.
C. Government Sector Impact:
The Department of Legal Affairs will be required to enforce the provisions in the bill.
V. Technical Deficiencies:
None.
VI. Related Issues:
The definition provided in the bill for “social or political advertising,” is potentially unclear and
overbroad.
The bill defines “foreign-adversary-owned entity” as a social media company that is owned or
substantially controlled by nationals, governments, or corporations domiciled, incorporated, or
otherwise holding residence in a country designated as a foreign adversary under 15 C.F.R. s 7.4.
It is unclear what amount or level of ownership is intended by use of “owner,” or what
“substantially controlled” means as used in the definition.
Lack of clarity in the definitions could lead to problems in compliance and enforcement.
VII. Statutes Affected:
This bill creates section 501.20411 of the Florida Statutes.
VIII. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.