Hawaii 2024 Regular Session

Hawaii House Bill HB1333 Compare Versions

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11 HOUSE OF REPRESENTATIVES H.B. NO. 1333 THIRTY-SECOND LEGISLATURE, 2023 STATE OF HAWAII A BILL FOR AN ACT relating to social media censorship. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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4747 SECTION 1. The legislature finds that social media platforms represent an extraordinary advance in communication technology for the people of Hawaii, and that the people of Hawaii are increasingly reliant on social media platforms to express their opinions. It is commonplace for users of social media platforms to want control over their personal information related to their social media accounts. The legislature also finds that social media platforms have transformed into the new public town square. Where free speech and the exchange of ideas used to occur in the physical realm, more and more often we see the important conversations of consequence taking place in the virtual realm. Before people can physically talk about ideas, they read about them first on forums like Facebook, Twitter, Instagram, Reddit, and many other video sharing sites like YouTube, TikTok, Rumble, and many others like them. Social media platforms have become as important for conveying public opinion as public utilities are for supporting modern society. Social media platforms hold a unique place in preserving first amendment protections for all residents of Hawaii, and should be treated similarly to common carriers. Social media platforms that unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Hawaii candidates, Hawaii users, and Hawaii residents are not acting in good faith. Hawaii has a substantial interest in protecting its residents from inconsistent and unfair actions by social media platforms, and Hawaii must vigorously enforce state law to protect its residents. The purpose of this Act is to prohibit social media and other companies from censoring information posted on their platforms. SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows: "Chapter ANTI-BIG-TECH CENSORSHIP ACT PART I. GENERAL PROVISIONS § -1 Definitions. As used in this chapter, unless the context indicates otherwise: "Candidate" has the same meaning as in §11-302. "Deplatform" means the action or practice by a social media platform to permanently delete or ban a user or to temporarily delete or ban a user from the social media platform for more than fourteen days. "Social media platform" means any information service, system, internet search engine, or access software provider that: (1) Provides or enables computer access by multiple users to a computer server, including an internet platform or social media site; (2) Operates as a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity; (3) Does business in the state; and (4) Satisfies at least one of the following thresholds: (a) Has annual gross revenues in excess of $100 million, as adjusted in January of each odd-numbered year to reflect any increase in the consumer price index. (b) Has at least 100 million monthly individual platform participants globally. "User" means a person who resides or is domiciled in this state and who has an account on a social media platform, regardless of whether the person posts or has posted content or material to the social media platform. § -2 Social media deplatforming of political candidates. (1) A social media platform may not willfully deplatform a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate. A social media platform must provide each user a method by which the user may be identified as a qualified candidate and which provides sufficient information to allow the social media platform to confirm the user's qualification by reviewing the website of the Office of Elections or the website of the local supervisor of elections. (2) Upon a finding of a violation of subsection (1) by the Hawaii State Ethics commission, the social media platform may be fined $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices. (3) A social media platform that willfully provides free advertising for a candidate must inform the candidate of such in-kind contribution. Posts, content, material, and comments by candidates which are shown on the platform in the same or similar way as other users' posts, content, material, and comments are not considered free advertising. (4) This section may only be enforced to the extent not inconsistent with federal law and 42 U.S.C. §230(e)(3), and notwithstanding any other provision of state law. § -3 Unlawful acts and practices by social media platforms. (a) As used in this section: (1) "Algorithm" means a mathematical set of rules that specifies how a group of data behaves and that will assist in ranking search results and maintaining order or that is used in sorting or ranking content or material based on relevancy or other factors instead of using published time or chronological order of such content or material. (2) "Censor" includes any section taken by a social media platform to delete, regulate, restrict, edit, alter, inhibit the publication or republication of, suspend a right to post, remove, or post an addendum to any content or material posted by a user. The term also includes actions to inhibit the ability of a user to be viewable by or to interact with another user of the social media platform. (3) "Journalistic enterprise" means any entity doing business in Hawaii that: (A) Publishes in excess of one hundred thousand words available online, with at least fifty thousand paid subscribers, or one hundred thousand monthly active users; (B) Publishes one hundred hours of audio or video available online with at least one hundred million viewers annually; (C) Operates a cable channel that provides more than forty hours of content per week to more than one hundred thousand cable television subscribers; or (D) Operates under a Broadcast license issued by the Federal Communications Commission. (4) "Post-prioritization" means action by a social media platform to place, feature, or prioritize certain content or material ahead of, below, or in a more or less prominent position that others in a newsfeed, a feed, a view, or in search results. The term does not include post-prioritization of content and material of a third party, including other users, based on payments by that third party, to the social media platform. (5) "Shadow ban" means action by a social media platform, through any means, whether the action is determined by a natural person or an algorithm, to limit or eliminate the exposure of a user or content or material posted by a user or other users of the social media platform. This term includes acts of shadow banning by a social media platform which are not readily apparent to a user. (b) A social media platform that fails to comply with any of the provisions of this section commits an unfair or deceptive act. (1) A social media platform must publish the standards, including detailed definitions, it uses or has used for determining how to censor, deplatform, and shadow ban. (2) A social media platform must apply censorship, deplatforming, and shadow banning standards in a consistent manner among its suers on the platform. (3) A social media platform must inform each user about any changes to its rules, terms, and agreements before implementing the changes and may not make changes more than once every thirty days. (4) A social media platform may not censor or shadow ban a user's content or material or deplatform a user from the social media platform: (A) Without notifying the user who posted or attempted to post the content or material; or (B) In a way that violates this section. (5) A social media platform must: (A) Provide a mechanism that allows a user to request the number of other individual platform participants who were provided or shown the user's content or posts. (B) Provide, upon request, a user with the number of other individual platform participants who were provided or shown content or posts. (6) A social media platform must: (A) Categorize algorithms used for post-prioritization and shadow banning. (B) Allow a user to opt out of post-prioritization and shadow banning algorithm categories to allow sequential or chronological post and content. (7) A social media platform must provide users with an annual notice on the use of algorithms for post-prioritization and shadow banning and reoffer annually the opt-out opportunity in subparagraph (b)(6)(B). (8) A social media platform may not apply or use post-prioritization or shadow banning algorithms for content and material posted by or about a user who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate. Post-prioritization of certain content or material from or about a candidate for office based on payments to the social media platform by such candidate for office or a third party is not a violation of this paragraph. A social media platform must provide each user a method by which the user may be identified as a qualified candidate and which provides sufficient information to allow the social media platform to confirm the user's qualification by reviewing the website of the Office of Elections or the website of the local supervisor of elections. (9) A social media platform must allow a user to has been deplatformed to access or retrieve all of the user's information, content, material, and data for at least sixty days after the user receives the notice required. (10) A social media platform may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast. Post-prioritization of certain journalistic enterprise content based on payments to the social media platform by such journalistic enterprise is not a violation of this paragraph. (c) For purposes of subsection (b)(4)(A), a notification must: (1) Be in writing; (2) Be delivered via electronic mail or direct electronic notification to the user within seven days after the censoring action. (3) Include a thorough rationale explaining the reason that the social media platform censored the user. (4) Include a precise and thorough explanation of how the social media platform became aware of the censored content or material, including a thorough explanation of the algorithms used, if any, to identify or flag the user's content or material as objectionable. (d) Notwithstanding any other provisions of this section, a social media platform is not required to notify a user if the censored content or material is obscene. (e) If the department, by its own inquiry or as a result of a complaint, suspects that a violation of this section is imminent, occurring, or has occurred, the department may investigate the suspected violation in accordance with this chapter. Based on the investigation, the department may bring a civil or administrative action under this chapter. (f) A user may only bring a private cause of action for violations of sections (b)(2) or (b)(4)(A). In a private cause of action brought under paragraph (b)(2) or (b)(4)(A), the court may award the user: (1) Up to $100,000 in statutory damages per proven claim. (2) Actual damages. (3) If aggravating factors are present, punitive damages. (4) Other forms of equitable relief, including injunctive relief. (5) If the user was deplatformed in violation of (b)(2), costs and reasonable attorneys' fees. (g) For purposes of bringing an action in accordance with (e) and (f), each failure to comply with the individual provisions of subsection (b) shall be treated as a separate violation, act, or practice. For purposes of bringing an action in accordance with section (e) and (f), a social media platform that censors, shadow bans, deplatforms, or applies post-prioritization algorithms to candidates and users in the state is conclusively presumed to be both engaged in substantial and not isolated activities within the state and operating, conducting, engaging in, or carrying on a business, and doing business in this state, and is therefore subject to the jurisdiction of the courts of the state. (h) In an investigation by the department into alleged violations of this section, the department's investigative powers include, but are not limited to, the ability to subpoena any algorithm used by a social media platform related to any alleged violation. (i) This section may only be enforced to the extent not inconsistent with federal law and 47. U.S.C. §230(e)(3), and notwithstanding any other provision of state law." SECTION 3. Chapter 480, Hawaii Revised Statutes, is amended by amending §480-1 and adding a new section to be properly designated and to read as follows: "[PART I. ANTITRUST PROVISIONS] §480-1 Definitions. As used in this chapter: "Class action" includes the definition as provided in rule 23 of the Hawaii rules of civil procedure. "Commodity" includes, but is not restricted to, goods, merchandise, produce, choses in action, and any other article of commerce. It also includes trade or business in service trades, transportation, insurance, banking, lending, advertising, bonding, and any other business. "Consumer" means a natural person who, primarily for personal, family, or household purposes, purchases, attempts to purchase, or is solicited to purchase goods or services or who commits money, property, or services in a personal investment. "De facto class action" means an action that has not been certified by the court but includes identical considerations as provided in Hawaii rules of civil procedure rule 23 such as common questions of law or fact, claims or defenses of the representative parties are typical of the claims or defenses of nonparties and, as a practical matter, the disposition of the interest of the class or other members not parties to the adjudications would substantially impair or impede their ability to protect their interest. "Person" or "persons" includes individuals, corporations, firms, trusts, partnerships, limited partnerships, limited liability partnerships, limited liability limited partnerships, limited liability companies, and incorporated or unincorporated associations, existing under or authorized by the laws of this State, or any other state, or any foreign country. "Purchase" or "buy" includes "contract to buy", "lease", "contract to lease", "acquire a license", and "contract to acquire a license". "Purchaser" includes the equivalent terms of "purchase" and "buy". "Sale" or "sell" includes "contract to sell", "lease", "contract to lease", "license", and "contract to license". "Seller" includes the equivalent terms of "sale" and "sell". "Affiliate" means: (a) A predecessor or successor of a person convicted or held civilly liable for an antitrust violation; or (b) An entity under the control of any natural person who is active in the management of the entity that has been convicted of or held civilly liable for an antitrust violation. The term includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm's length agreement, is a prima facie case that one person controls another person. The term also includes a person who knowingly enters into a joint venture with a person who has violated an antitrust law during the preceding thirty-six months. "Antitrust violation" means any failure to comply with a state or federal antitrust law as determined in a civil or criminal proceeding brought by the Attorney General, a state attorney, a similar body or agency of another state, the Federal Trade Commission, or the United States Department of Justice. "Antitrust violator vendor list" means the list required to be kept by the department pursuant to §480- (b)(2) below. "Conviction or being held civilly liable" or "convicted or held civilly liable" means a criminal finding of responsibility or guilt or conviction, with or without an adjudication of guilt, being held civilly responsible or liable, or having a judgment levied for an antitrust violation in any federal or state trial court of record relating to charges brought by indictment, information, or complaint on or after July 1, 2023, as a result of jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere or other finding of responsibility or liability. "Public entity" means the state and any of its departments or agencies." "§480- Antitrust violations; denial or revocation of the right to transact between public entities; denial of economic benefits. (a)(1) A person or an affiliate who has been placed on the antitrust violator vendor list following a conviction or being held civilly liable for an antitrust violation may not submit a bid, proposal, or reply for any new contract to provide any goods or services to a public entity; may not submit a bud, proposal, or reply for a new contract with a public entity for the construction or repair of a public building or public work; may not submit a bid, proposal, or reply on new leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a new contract with a public entity; and may not transact new business with a public entity. (2) A public entity may not accept a bid, proposal, or reply from, award a new contract to, or transact new business with any person or affiliate on the antitrust violator vendor list unless that person or affiliate has been removed from the list pursuant to paragraph (b)(2) below. (3) This subsection does not apply to contracts that were awarded or business transaction that began before a person or an affiliate was placed on the antitrust violator vendor list or before July 1, 2023, whichever date occurs later. (b)(1) Beginning on July 1, 2023, all invitations to bid, requests for proposals, and invitations to negotiate, and any contract document must contain a statement informing persons of the provisions of paragraph (a)(1). (2) The department shall maintain an antitrust violator vendor list of the names and addresses of the persons or affiliates who have been disqualified from the public contracting and purchasing process under this section. The department shall electronically publish the initial antitrust violator vendor list on January 1, 2024, and shall update and electronically publish the list quarterly thereafter. Notwithstanding this paragraph, a person or an affiliate disqualified from the public contracting and purchasing process pursuant to this section is disqualified as of the date the department enters the final order. (c)(1) After receiving notice of a judgment, sentence, or order from any source that a person was convicted or held civilly liable for an antitrust violation and after the department has investigated the information and verified both the judgment, sentence, or order and the identity of the person named in the documentation, the department must immediately notify the person or affiliate in writing of its intent to place the name of that person or affiliate on the antitrust violator vendor list and of the person's or affiliate's right to a hearing, the procedure that must be followed, and the applicable time requirements. If the person or affiliate does not request a hearing, the department shall enter a final order placing the name of the person or affiliate on the antitrust violator vendor list. A person or affiliate may be placed on the antitrust violator vendor list only after the department has provided the person or affiliate with a notice of intent. (2) Within twenty-one days after receipt of the notice of intent, the person or affiliate may file a petition for a formal hearing to determine whether good cause has been shown by the department and whether it is in the public interest for the person to be placed on the antitrust violator vendor list. A person or an affiliate may not file a petition for an informal hearing. (3) In determining whether it is in the public interest to place a person or affiliate on the antitrust violator vendor list under this paragraph, the following factors shall be considered: (a) Whether the person or affiliate was convicted or held civilly liable for an antitrust violation. (b) The nature and details of the antitrust violation. (c) The degree of culpability of the person or affiliate proposed to be placed on the antitrust violator vendor list. (d) Reinstatement or clemency in any jurisdiction in relation to the antitrust violation at issue in the proceeding. (e) The needs of the public entities for additional competition in the procurement of goods and services in their respective markets. (f) The effect of the antitrust violations on residents of Hawaii. (4) After the person or affiliate requests a formal hearing, the burden shifts to the department to prove that it is in the public interest for the person or affiliate to whom it has given notice under this paragraph to be placed on the antitrust violator vendor list. Proof that a person was convicted or was held civilly liable or that an entity is an affiliate of such person constitutes a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the antitrust violator vendor list. Status as an affiliate must be proven by clear and convincing evidence. (5) Any person or affiliate who has been notified by the department of its intent to place his or her name on the antitrust violator vendor list may offer evidence on any relevant issue. An affidavit alone does not constitute competent substantial evidence that the person has not been convicted or is not an affiliate of a person convicted or held civilly liable. Upon establishment of a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the antitrust violator vendor list, the person or affiliate may prove by a preponderance of the evidence that it would not be in the public interest to put him or her on the antitrust violator vendor list, based on evidence addressing the factors in subparagraph (3). (d)(1) Upon receipt of an information or indictment from any source that a person has been charged with or accused of violating any state or federal antitrust law in a civil or criminal proceeding, including a civil investigative demand, brought by the Attorney General, a state attorney, the Federal Trade Commission, or the United States Department of Justice on or after July 1, 2023, the Attorney General must determine whether there is probable cause that a person has likely violated the underlying antitrust laws, which justifies temporary placement of such person on the antitrust violator vendor list until such proceeding has concluded. (2) If the Attorney General determines probable cause exists, the Attorney General shall notify the person in writing of its intent to temporarily place the name of that person on the antitrust violator vendor list, and of the person's right to a hearing, the procedure that must be followed, and the appliable time requirements. If the person does not request a hearing, the Attorney General shall enter a final order temporarily placing the name of the person on the antitrust violator vendor list. A person may be placed on the antitrust violator vendor list only after being provided with a notice of intent from the Attorney General. (3) Within twenty-one days after receipt of the notice of intent, the person may file a petition for a formal hearing to determine whether it is in the public interest for the person to be temporarily placed on the antitrust violator vendor list. A person may not file a petition for an informal hearing. (4) In determining whether it is in the public interest to place a person on the antitrust violator vendor list under this paragraph, the following factors shall be considered: (A) The likelihood the person will be convicted or held civilly liable for the antitrust violation. (B) The nature and details of the antitrust violation. (C) The degree of culpability of the person proposed to be placed on the antitrust violator vendor list. (D) The needs of the public entities for additional competition in the procurement of goods and services in their respective markets. (E) The effect of the antitrust violations on residents of Hawaii. (5) The Attorney General has the burden to prove that it is in the public interest for the person to whom it has given notice under this paragraph to be temporarily placed on the antitrust violator vendor list. (6) This paragraph does not apply to affiliates. (a)(1) A person or an affiliate may be removed from the antitrust violator vendor list subject to such terms and conditions as may be prescribed upon a determination that removal is in the public interest. Upon proof that a person was found not guilty or not civilly liable, the antitrust violation case was dismissed, the court entered a finding in the person's favor, the person's conviction or determination of liability has been reversed on appeal, or the person has been pardoned, it shall be determined that the removal of the person or affiliate of that person from the antitrust violator vendor list is in the public interest. A person or an affiliate on the antitrust violator vendor list may petition for removal from the list no sooner than six months after the date a final order is entered pursuant to this section but may petition for removal at any time if the petition is based upon a reversal of the conviction or liability on appellate review or pardon. The petition must be filed with the department, and the proceeding must be conducted pursuant to the procedures and requirements of this section. (2) If the petition for removal is denied, the person or affiliate may not petition for another hearing on removal for a period of nine months after the date of denial unless the petition is based upon a reversal of the conviction on appellate review or a pardon. The department may petition for removal before the expiration of such a period if, in its discretion, it determines that removal is in the public interest. (e) The conviction of a person or person being held civilly liable for an antitrust violation, or placement on the antitrust violator vendor list, does not affect any rights or obligations under any contract, franchise, or other binding agreement that predates such conviction, finding of civil liability, or placement on the antitrust violator vendor list. (f) A person who has been placed on the antitrust violator vendor list is not a qualified applicant for economic incentives, and such person shall not be qualified to receive such economic incentives. This subsection does not apply to economic incentives that are awarded before a person is placed on the antitrust violator vendor list on or before July 1, 2023. (g) This section does not apply to: (1) Any activity regulated by the Public Service Commission; (2) The purchase of goods or services made by any public entity from the Department of Corrections or from any qualified nonprofit agency for the blind or other severely handicapped persons; or (3) Any contract with a public entity to provide any goods or services for emergency response efforts related to a state of emergency declaration issued by the Governor. (h) This section may only be enforced to the extent not inconsistent with federal law and notwithstanding any other provision of state law." SECTION 4. New statutory material is underscored. SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable. SECTION 7. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________
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4949 SECTION 1. The legislature finds that social media platforms represent an extraordinary advance in communication technology for the people of Hawaii, and that the people of Hawaii are increasingly reliant on social media platforms to express their opinions. It is commonplace for users of social media platforms to want control over their personal information related to their social media accounts.
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5151 The legislature also finds that social media platforms have transformed into the new public town square. Where free speech and the exchange of ideas used to occur in the physical realm, more and more often we see the important conversations of consequence taking place in the virtual realm. Before people can physically talk about ideas, they read about them first on forums like Facebook, Twitter, Instagram, Reddit, and many other video sharing sites like YouTube, TikTok, Rumble, and many others like them. Social media platforms have become as important for conveying public opinion as public utilities are for supporting modern society. Social media platforms hold a unique place in preserving first amendment protections for all residents of Hawaii, and should be treated similarly to common carriers.
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5353 Social media platforms that unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Hawaii candidates, Hawaii users, and Hawaii residents are not acting in good faith. Hawaii has a substantial interest in protecting its residents from inconsistent and unfair actions by social media platforms, and Hawaii must vigorously enforce state law to protect its residents.
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5555 The purpose of this Act is to prohibit social media and other companies from censoring information posted on their platforms.
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5757 SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
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5959 "Chapter
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6161 ANTI-BIG-TECH CENSORSHIP ACT
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6363 PART I. GENERAL PROVISIONS
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6565 § -1 Definitions. As used in this chapter, unless the context indicates otherwise:
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6767 "Candidate" has the same meaning as in §11-302.
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6969 "Deplatform" means the action or practice by a social media platform to permanently delete or ban a user or to temporarily delete or ban a user from the social media platform for more than fourteen days.
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7171 "Social media platform" means any information service, system, internet search engine, or access software provider that:
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7373 (1) Provides or enables computer access by multiple users to a computer server, including an internet platform or social media site;
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7575 (2) Operates as a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity;
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7777 (3) Does business in the state; and
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7979 (4) Satisfies at least one of the following thresholds:
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8181 (a) Has annual gross revenues in excess of $100 million, as adjusted in January of each odd-numbered year to reflect any increase in the consumer price index.
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8383 (b) Has at least 100 million monthly individual platform participants globally.
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8585 "User" means a person who resides or is domiciled in this state and who has an account on a social media platform, regardless of whether the person posts or has posted content or material to the social media platform.
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8787 § -2 Social media deplatforming of political candidates. (1) A social media platform may not willfully deplatform a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate. A social media platform must provide each user a method by which the user may be identified as a qualified candidate and which provides sufficient information to allow the social media platform to confirm the user's qualification by reviewing the website of the Office of Elections or the website of the local supervisor of elections.
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8989 (2) Upon a finding of a violation of subsection (1) by the Hawaii State Ethics commission, the social media platform may be fined $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices.
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9393 (3) A social media platform that willfully provides free advertising for a candidate must inform the candidate of such in-kind contribution. Posts, content, material, and comments by candidates which are shown on the platform in the same or similar way as other users' posts, content, material, and comments are not considered free advertising.
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9595 (4) This section may only be enforced to the extent not inconsistent with federal law and 42 U.S.C. §230(e)(3), and notwithstanding any other provision of state law.
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9797 § -3 Unlawful acts and practices by social media platforms. (a) As used in this section:
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9999 (1) "Algorithm" means a mathematical set of rules that specifies how a group of data behaves and that will assist in ranking search results and maintaining order or that is used in sorting or ranking content or material based on relevancy or other factors instead of using published time or chronological order of such content or material.
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101101 (2) "Censor" includes any section taken by a social media platform to delete, regulate, restrict, edit, alter, inhibit the publication or republication of, suspend a right to post, remove, or post an addendum to any content or material posted by a user. The term also includes actions to inhibit the ability of a user to be viewable by or to interact with another user of the social media platform.
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103103 (3) "Journalistic enterprise" means any entity doing business in Hawaii that:
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105105 (A) Publishes in excess of one hundred thousand words available online, with at least fifty thousand paid subscribers, or one hundred thousand monthly active users;
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107107 (B) Publishes one hundred hours of audio or video available online with at least one hundred million viewers annually;
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109109 (C) Operates a cable channel that provides more than forty hours of content per week to more than one hundred thousand cable television subscribers; or
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111111 (D) Operates under a Broadcast license issued by the Federal Communications Commission.
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113113 (4) "Post-prioritization" means action by a social media platform to place, feature, or prioritize certain content or material ahead of, below, or in a more or less prominent position that others in a newsfeed, a feed, a view, or in search results. The term does not include post-prioritization of content and material of a third party, including other users, based on payments by that third party, to the social media platform.
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115115 (5) "Shadow ban" means action by a social media platform, through any means, whether the action is determined by a natural person or an algorithm, to limit or eliminate the exposure of a user or content or material posted by a user or other users of the social media platform. This term includes acts of shadow banning by a social media platform which are not readily apparent to a user.
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117117 (b) A social media platform that fails to comply with any of the provisions of this section commits an unfair or deceptive act.
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119119 (1) A social media platform must publish the standards, including detailed definitions, it uses or has used for determining how to censor, deplatform, and shadow ban.
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121121 (2) A social media platform must apply censorship, deplatforming, and shadow banning standards in a consistent manner among its suers on the platform.
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123123 (3) A social media platform must inform each user about any changes to its rules, terms, and agreements before implementing the changes and may not make changes more than once every thirty days.
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125125 (4) A social media platform may not censor or shadow ban a user's content or material or deplatform a user from the social media platform:
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127127 (A) Without notifying the user who posted or attempted to post the content or material; or
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129129 (B) In a way that violates this section.
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131131 (5) A social media platform must:
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133133 (A) Provide a mechanism that allows a user to request the number of other individual platform participants who were provided or shown the user's content or posts.
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135135 (B) Provide, upon request, a user with the number of other individual platform participants who were provided or shown content or posts.
136136
137137 (6) A social media platform must:
138138
139139 (A) Categorize algorithms used for post-prioritization and shadow banning.
140140
141141 (B) Allow a user to opt out of post-prioritization and shadow banning algorithm categories to allow sequential or chronological post and content.
142142
143143 (7) A social media platform must provide users with an annual notice on the use of algorithms for post-prioritization and shadow banning and reoffer annually the opt-out opportunity in subparagraph (b)(6)(B).
144144
145145 (8) A social media platform may not apply or use post-prioritization or shadow banning algorithms for content and material posted by or about a user who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate. Post-prioritization of certain content or material from or about a candidate for office based on payments to the social media platform by such candidate for office or a third party is not a violation of this paragraph. A social media platform must provide each user a method by which the user may be identified as a qualified candidate and which provides sufficient information to allow the social media platform to confirm the user's qualification by reviewing the website of the Office of Elections or the website of the local supervisor of elections.
146146
147147 (9) A social media platform must allow a user to has been deplatformed to access or retrieve all of the user's information, content, material, and data for at least sixty days after the user receives the notice required.
148148
149149 (10) A social media platform may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast. Post-prioritization of certain journalistic enterprise content based on payments to the social media platform by such journalistic enterprise is not a violation of this paragraph.
150150
151151 (c) For purposes of subsection (b)(4)(A), a notification must:
152152
153153 (1) Be in writing;
154154
155155 (2) Be delivered via electronic mail or direct electronic notification to the user within seven days after the censoring action.
156156
157157 (3) Include a thorough rationale explaining the reason that the social media platform censored the user.
158158
159159 (4) Include a precise and thorough explanation of how the social media platform became aware of the censored content or material, including a thorough explanation of the algorithms used, if any, to identify or flag the user's content or material as objectionable.
160160
161161 (d) Notwithstanding any other provisions of this section, a social media platform is not required to notify a user if the censored content or material is obscene.
162162
163163 (e) If the department, by its own inquiry or as a result of a complaint, suspects that a violation of this section is imminent, occurring, or has occurred, the department may investigate the suspected violation in accordance with this chapter. Based on the investigation, the department may bring a civil or administrative action under this chapter.
164164
165165 (f) A user may only bring a private cause of action for violations of sections (b)(2) or (b)(4)(A). In a private cause of action brought under paragraph (b)(2) or (b)(4)(A), the court may award the user:
166166
167167 (1) Up to $100,000 in statutory damages per proven claim.
168168
169169 (2) Actual damages.
170170
171171 (3) If aggravating factors are present, punitive damages.
172172
173173 (4) Other forms of equitable relief, including injunctive relief.
174174
175175 (5) If the user was deplatformed in violation of (b)(2), costs and reasonable attorneys' fees.
176176
177177 (g) For purposes of bringing an action in accordance with (e) and (f), each failure to comply with the individual provisions of subsection (b) shall be treated as a separate violation, act, or practice. For purposes of bringing an action in accordance with section (e) and (f), a social media platform that censors, shadow bans, deplatforms, or applies post-prioritization algorithms to candidates and users in the state is conclusively presumed to be both engaged in substantial and not isolated activities within the state and operating, conducting, engaging in, or carrying on a business, and doing business in this state, and is therefore subject to the jurisdiction of the courts of the state.
178178
179179 (h) In an investigation by the department into alleged violations of this section, the department's investigative powers include, but are not limited to, the ability to subpoena any algorithm used by a social media platform related to any alleged violation.
180180
181181 (i) This section may only be enforced to the extent not inconsistent with federal law and 47. U.S.C. §230(e)(3), and notwithstanding any other provision of state law."
182182
183183 SECTION 3. Chapter 480, Hawaii Revised Statutes, is amended by amending §480-1 and adding a new section to be properly designated and to read as follows:
184184
185185 "[PART I. ANTITRUST PROVISIONS]
186186
187187 §480-1 Definitions. As used in this chapter:
188188
189189 "Class action" includes the definition as provided in rule 23 of the Hawaii rules of civil procedure.
190190
191191 "Commodity" includes, but is not restricted to, goods, merchandise, produce, choses in action, and any other article of commerce. It also includes trade or business in service trades, transportation, insurance, banking, lending, advertising, bonding, and any other business.
192192
193193 "Consumer" means a natural person who, primarily for personal, family, or household purposes, purchases, attempts to purchase, or is solicited to purchase goods or services or who commits money, property, or services in a personal investment.
194194
195195 "De facto class action" means an action that has not been certified by the court but includes identical considerations as provided in Hawaii rules of civil procedure rule 23 such as common questions of law or fact, claims or defenses of the representative parties are typical of the claims or defenses of nonparties and, as a practical matter, the disposition of the interest of the class or other members not parties to the adjudications would substantially impair or impede their ability to protect their interest.
196196
197197 "Person" or "persons" includes individuals, corporations, firms, trusts, partnerships, limited partnerships, limited liability partnerships, limited liability limited partnerships, limited liability companies, and incorporated or unincorporated associations, existing under or authorized by the laws of this State, or any other state, or any foreign country.
198198
199199 "Purchase" or "buy" includes "contract to buy", "lease", "contract to lease", "acquire a license", and "contract to acquire a license".
200200
201201 "Purchaser" includes the equivalent terms of "purchase" and "buy".
202202
203203 "Sale" or "sell" includes "contract to sell", "lease", "contract to lease", "license", and "contract to license".
204204
205205 "Seller" includes the equivalent terms of "sale" and "sell".
206206
207207 "Affiliate" means:
208208
209209 (a) A predecessor or successor of a person convicted or held civilly liable for an antitrust violation; or
210210
211211 (b) An entity under the control of any natural person who is active in the management of the entity that has been convicted of or held civilly liable for an antitrust violation. The term includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm's length agreement, is a prima facie case that one person controls another person. The term also includes a person who knowingly enters into a joint venture with a person who has violated an antitrust law during the preceding thirty-six months.
212212
213213 "Antitrust violation" means any failure to comply with a state or federal antitrust law as determined in a civil or criminal proceeding brought by the Attorney General, a state attorney, a similar body or agency of another state, the Federal Trade Commission, or the United States Department of Justice.
214214
215215 "Antitrust violator vendor list" means the list required to be kept by the department pursuant to §480- (b)(2) below.
216216
217217 "Conviction or being held civilly liable" or "convicted or held civilly liable" means a criminal finding of responsibility or guilt or conviction, with or without an adjudication of guilt, being held civilly responsible or liable, or having a judgment levied for an antitrust violation in any federal or state trial court of record relating to charges brought by indictment, information, or complaint on or after July 1, 2023, as a result of jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere or other finding of responsibility or liability.
218218
219219 "Public entity" means the state and any of its departments or agencies."
220220
221221 "§480- Antitrust violations; denial or revocation of the right to transact between public entities; denial of economic benefits. (a)(1) A person or an affiliate who has been placed on the antitrust violator vendor list following a conviction or being held civilly liable for an antitrust violation may not submit a bid, proposal, or reply for any new contract to provide any goods or services to a public entity; may not submit a bud, proposal, or reply for a new contract with a public entity for the construction or repair of a public building or public work; may not submit a bid, proposal, or reply on new leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a new contract with a public entity; and may not transact new business with a public entity.
222222
223223 (2) A public entity may not accept a bid, proposal, or reply from, award a new contract to, or transact new business with any person or affiliate on the antitrust violator vendor list unless that person or affiliate has been removed from the list pursuant to paragraph (b)(2) below.
224224
225225 (3) This subsection does not apply to contracts that were awarded or business transaction that began before a person or an affiliate was placed on the antitrust violator vendor list or before July 1, 2023, whichever date occurs later.
226226
227227 (b)(1) Beginning on July 1, 2023, all invitations to bid, requests for proposals, and invitations to negotiate, and any contract document must contain a statement informing persons of the provisions of paragraph (a)(1).
228228
229229 (2) The department shall maintain an antitrust violator vendor list of the names and addresses of the persons or affiliates who have been disqualified from the public contracting and purchasing process under this section. The department shall electronically publish the initial antitrust violator vendor list on January 1, 2024, and shall update and electronically publish the list quarterly thereafter. Notwithstanding this paragraph, a person or an affiliate disqualified from the public contracting and purchasing process pursuant to this section is disqualified as of the date the department enters the final order.
230230
231231 (c)(1) After receiving notice of a judgment, sentence, or order from any source that a person was convicted or held civilly liable for an antitrust violation and after the department has investigated the information and verified both the judgment, sentence, or order and the identity of the person named in the documentation, the department must immediately notify the person or affiliate in writing of its intent to place the name of that person or affiliate on the antitrust violator vendor list and of the person's or affiliate's right to a hearing, the procedure that must be followed, and the applicable time requirements. If the person or affiliate does not request a hearing, the department shall enter a final order placing the name of the person or affiliate on the antitrust violator vendor list. A person or affiliate may be placed on the antitrust violator vendor list only after the department has provided the person or affiliate with a notice of intent.
232232
233233 (2) Within twenty-one days after receipt of the notice of intent, the person or affiliate may file a petition for a formal hearing to determine whether good cause has been shown by the department and whether it is in the public interest for the person to be placed on the antitrust violator vendor list. A person or an affiliate may not file a petition for an informal hearing.
234234
235235 (3) In determining whether it is in the public interest to place a person or affiliate on the antitrust violator vendor list under this paragraph, the following factors shall be considered:
236236
237237 (a) Whether the person or affiliate was convicted or held civilly liable for an antitrust violation.
238238
239239 (b) The nature and details of the antitrust violation.
240240
241241 (c) The degree of culpability of the person or affiliate proposed to be placed on the antitrust violator vendor list.
242242
243243 (d) Reinstatement or clemency in any jurisdiction in relation to the antitrust violation at issue in the proceeding.
244244
245245 (e) The needs of the public entities for additional competition in the procurement of goods and services in their respective markets.
246246
247247 (f) The effect of the antitrust violations on residents of Hawaii.
248248
249249 (4) After the person or affiliate requests a formal hearing, the burden shifts to the department to prove that it is in the public interest for the person or affiliate to whom it has given notice under this paragraph to be placed on the antitrust violator vendor list. Proof that a person was convicted or was held civilly liable or that an entity is an affiliate of such person constitutes a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the antitrust violator vendor list. Status as an affiliate must be proven by clear and convincing evidence.
250250
251251 (5) Any person or affiliate who has been notified by the department of its intent to place his or her name on the antitrust violator vendor list may offer evidence on any relevant issue. An affidavit alone does not constitute competent substantial evidence that the person has not been convicted or is not an affiliate of a person convicted or held civilly liable. Upon establishment of a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the antitrust violator vendor list, the person or affiliate may prove by a preponderance of the evidence that it would not be in the public interest to put him or her on the antitrust violator vendor list, based on evidence addressing the factors in subparagraph (3).
252252
253253 (d)(1) Upon receipt of an information or indictment from any source that a person has been charged with or accused of violating any state or federal antitrust law in a civil or criminal proceeding, including a civil investigative demand, brought by the Attorney General, a state attorney, the Federal Trade Commission, or the United States Department of Justice on or after July 1, 2023, the Attorney General must determine whether there is probable cause that a person has likely violated the underlying antitrust laws, which justifies temporary placement of such person on the antitrust violator vendor list until such proceeding has concluded.
254254
255255 (2) If the Attorney General determines probable cause exists, the Attorney General shall notify the person in writing of its intent to temporarily place the name of that person on the antitrust violator vendor list, and of the person's right to a hearing, the procedure that must be followed, and the appliable time requirements. If the person does not request a hearing, the Attorney General shall enter a final order temporarily placing the name of the person on the antitrust violator vendor list. A person may be placed on the antitrust violator vendor list only after being provided with a notice of intent from the Attorney General.
256256
257257 (3) Within twenty-one days after receipt of the notice of intent, the person may file a petition for a formal hearing to determine whether it is in the public interest for the person to be temporarily placed on the antitrust violator vendor list. A person may not file a petition for an informal hearing.
258258
259259 (4) In determining whether it is in the public interest to place a person on the antitrust violator vendor list under this paragraph, the following factors shall be considered:
260260
261261 (A) The likelihood the person will be convicted or held civilly liable for the antitrust violation.
262262
263263 (B) The nature and details of the antitrust violation.
264264
265265 (C) The degree of culpability of the person proposed to be placed on the antitrust violator vendor list.
266266
267267 (D) The needs of the public entities for additional competition in the procurement of goods and services in their respective markets.
268268
269269 (E) The effect of the antitrust violations on residents of Hawaii.
270270
271271 (5) The Attorney General has the burden to prove that it is in the public interest for the person to whom it has given notice under this paragraph to be temporarily placed on the antitrust violator vendor list.
272272
273273 (6) This paragraph does not apply to affiliates.
274274
275275 (a)(1) A person or an affiliate may be removed from the antitrust violator vendor list subject to such terms and conditions as may be prescribed upon a determination that removal is in the public interest. Upon proof that a person was found not guilty or not civilly liable, the antitrust violation case was dismissed, the court entered a finding in the person's favor, the person's conviction or determination of liability has been reversed on appeal, or the person has been pardoned, it shall be determined that the removal of the person or affiliate of that person from the antitrust violator vendor list is in the public interest. A person or an affiliate on the antitrust violator vendor list may petition for removal from the list no sooner than six months after the date a final order is entered pursuant to this section but may petition for removal at any time if the petition is based upon a reversal of the conviction or liability on appellate review or pardon. The petition must be filed with the department, and the proceeding must be conducted pursuant to the procedures and requirements of this section.
276276
277277 (2) If the petition for removal is denied, the person or affiliate may not petition for another hearing on removal for a period of nine months after the date of denial unless the petition is based upon a reversal of the conviction on appellate review or a pardon. The department may petition for removal before the expiration of such a period if, in its discretion, it determines that removal is in the public interest.
278278
279279 (e) The conviction of a person or person being held civilly liable for an antitrust violation, or placement on the antitrust violator vendor list, does not affect any rights or obligations under any contract, franchise, or other binding agreement that predates such conviction, finding of civil liability, or placement on the antitrust violator vendor list.
280280
281281 (f) A person who has been placed on the antitrust violator vendor list is not a qualified applicant for economic incentives, and such person shall not be qualified to receive such economic incentives. This subsection does not apply to economic incentives that are awarded before a person is placed on the antitrust violator vendor list on or before July 1, 2023.
282282
283283 (g) This section does not apply to:
284284
285285 (1) Any activity regulated by the Public Service Commission;
286286
287287 (2) The purchase of goods or services made by any public entity from the Department of Corrections or from any qualified nonprofit agency for the blind or other severely handicapped persons; or
288288
289289 (3) Any contract with a public entity to provide any goods or services for emergency response efforts related to a state of emergency declaration issued by the Governor.
290290
291291 (h) This section may only be enforced to the extent not inconsistent with federal law and notwithstanding any other provision of state law."
292292
293293 SECTION 4. New statutory material is underscored.
294294
295295 SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
296296
297297 SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
298298
299299 SECTION 7. This Act shall take effect upon its approval.
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301301
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303303
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305305
306306
307307
308308
309309 INTRODUCED BY: _____________________________
310310
311311 INTRODUCED BY:
312312
313313 _____________________________
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318318
319319 Report Title: Social Media Platforms; Censorship; Safeguards. Description: Prohibits social media platforms from engaging in censorship of candidates for elected office and other users. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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325325 Report Title:
326326
327327 Social Media Platforms; Censorship; Safeguards.
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331331 Description:
332332
333333 Prohibits social media platforms from engaging in censorship of candidates for elected office and other users.
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337337
338338
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340340
341341 The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.