By: Cain, et al. (Senate Sponsor - Hughes) H.B. No. 20
(In the Senate - Received from the House August 30, 2021;
August 30, 2021, read first time and referred to Committee on State
Affairs; August 30, 2021, reported favorably by the following
vote: Yeas 7, Nays 2; August 30, 2021, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to censorship of or certain other interference with
digital expression, including expression on social media platforms
or through electronic mail messages.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The legislature finds that:
(1) each person in this state has a fundamental
interest in the free exchange of ideas and information, including
the freedom of others to share and receive ideas and information;
(2) this state has a fundamental interest in
protecting the free exchange of ideas and information in this
state;
(3) social media platforms function as common
carriers, are affected with a public interest, are central public
forums for public debate, and have enjoyed governmental support in
the United States; and
(4) social media platforms with the largest number of
users are common carriers by virtue of their market dominance.
SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is
amended by adding Chapter 120 to read as follows:
CHAPTER 120. SOCIAL MEDIA PLATFORMS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 120.001. DEFINITIONS. In this chapter:
(1) "Social media platform" means an Internet website
or application that is open to the public, allows a user to create
an account, and enables users to communicate with other users for
the primary purpose of posting information, comments, messages, or
images. The term does not include:
(A) an Internet service provider as defined by
Section 324.055;
(B) electronic mail; or
(C) an online service, application, or website:
(i) that consists primarily of news,
sports, entertainment, or other information or content that is not
user generated but is preselected by the provider; and
(ii) for which any chat, comments, or
interactive functionality is incidental to, directly related to, or
dependent on the provision of the content described by Subparagraph
(i).
(2) "User" means a person who posts, uploads,
transmits, shares, or otherwise publishes or receives content
through a social media platform. The term includes a person who has
a social media platform account that the social media platform has
disabled or locked.
Sec. 120.002. APPLICABILITY OF CHAPTER. (a) This chapter
applies only to a user who:
(1) resides in this state;
(2) does business in this state; or
(3) shares or receives content on a social media
platform in this state.
(b) This chapter applies only to a social media platform
that functionally has more than 50 million active users in the
United States in a calendar month.
Sec. 120.003. CONSTRUCTION OF CHAPTER. This chapter may
not be construed to limit or expand intellectual property law.
SUBCHAPTER B. DISCLOSURE REQUIREMENTS
Sec. 120.051. PUBLIC DISCLOSURES. (a) A social media
platform shall, in accordance with this subchapter, publicly
disclose accurate information regarding its content management,
data management, and business practices, including specific
information regarding the manner in which the social media
platform:
(1) curates and targets content to users;
(2) places and promotes content, services, and
products, including its own content, services, and products;
(3) moderates content;
(4) uses search, ranking, or other algorithms or
procedures that determine results on the platform; and
(5) provides users' performance data on the use of the
platform and its products and services.
(b) The disclosure required by Subsection (a) must be
sufficient to enable users to make an informed choice regarding the
purchase of or use of access to or services from the platform.
(c) A social media platform shall publish the disclosure
required by Subsection (a) on an Internet website that is easily
accessible by the public.
Sec. 120.052. ACCEPTABLE USE POLICY. (a) A social media
platform shall publish an acceptable use policy in a location that
is easily accessible to a user.
(b) A social media platform's acceptable use policy must:
(1) reasonably inform users about the types of content
allowed on the social media platform;
(2) explain the steps the social media platform will
take to ensure content complies with the policy;
(3) explain the means by which users can notify the
social media platform of content that potentially violates the
acceptable use policy, illegal content, or illegal activity, which
includes:
(A) an e-mail address or relevant complaint
intake mechanism to handle user complaints; and
(B) a complaint system described by Subchapter C;
and
(4) include publication of a biannual transparency
report outlining actions taken to enforce the policy.
Sec. 120.053. BIANNUAL TRANSPARENCY REPORT. (a) As part of
a social media platform's acceptable use policy under Section
120.052, the social media platform shall publish a biannual
transparency report that includes, with respect to the preceding
six-month period:
(1) the total number of instances in which the social
media platform was alerted to illegal content, illegal activity, or
potentially policy-violating content by:
(A) a user complaint;
(B) an employee of or person contracting with the
social media platform; or
(C) an internal automated detection tool;
(2) subject to Subsection (b), the number of instances
in which the social media platform took action with respect to
illegal content, illegal activity, or potentially policy-violating
content known to the platform due to the nature of the content as
illegal content, illegal activity, or potentially policy-violating
content, including:
(A) content removal;
(B) content demonetization;
(C) content deprioritization;
(D) the addition of an assessment to content;
(E) account suspension;
(F) account removal; or
(G) any other action taken in accordance with the
platform's acceptable use policy;
(3) the country of the user who provided the content
for each instance described by Subdivision (2);
(4) the number of coordinated campaigns, if
applicable;
(5) the number of instances in which a user appealed
the decision to remove the user's potentially policy-violating
content;
(6) the percentage of appeals described by Subdivision
(5) that resulted in the restoration of content; and
(7) a description of each tool, practice, action, or
technique used in enforcing the acceptable use policy.
(b) The information described by Subsection (a)(2) must be
categorized by:
(1) the rule violated; and
(2) the source for the alert of illegal content,
illegal activity, or potentially policy-violating content,
including:
(A) a government;
(B) a user;
(C) an internal automated detection tool;
(D) coordination with other social media
platforms; or
(E) persons employed by or contracting with the
platform.
(c) A social media platform shall publish the information
described by Subsection (a) with an open license, in a
machine-readable and open format, and in a location that is easily
accessible to users.
SUBCHAPTER C. COMPLAINT PROCEDURES
Sec. 120.101. COMPLAINT SYSTEM. A social media platform
shall provide an easily accessible complaint system to enable a
user to submit a complaint in good faith and track the status of the
complaint, including a complaint regarding:
(1) illegal content or activity; or
(2) a decision made by the social media platform to
remove content posted by the user.
Sec. 120.102. PROCESSING OF COMPLAINTS. A social media
platform that receives notice of illegal content or illegal
activity on the social media platform shall make a good faith effort
to evaluate the legality of the content or activity within 48 hours
of receiving the notice, excluding hours during a Saturday or
Sunday and subject to reasonable exceptions based on concerns about
the legitimacy of the notice.
Sec. 120.103. REMOVAL OF CONTENT; EXCEPTIONS. (a) Except
as provided by Subsection (b), if a social media platform removes
content based on a violation of the platform's acceptable use
policy under Section 120.052, the social media platform shall,
concurrently with the removal:
(1) notify the user who provided the content of the
removal and explain the reason the content was removed;
(2) allow the user to appeal the decision to remove the
content to the platform; and
(3) provide written notice to the user who provided
the content of:
(A) the determination regarding an appeal
requested under Subdivision (2); and
(B) in the case of a reversal of the social media
platform's decision to remove the content, the reason for the
reversal.
(b) A social media platform is not required to provide a
user with notice or an opportunity to appeal under Subsection (a) if
the social media platform:
(1) is unable to contact the user after taking
reasonable steps to make contact; or
(2) knows that the potentially policy-violating
content relates to an ongoing law enforcement investigation.
Sec. 120.104. APPEAL PROCEDURES. If a social media
platform receives a user complaint on the social media platform's
removal from the platform of content provided by the user that the
user believes was not potentially policy-violating content, the
social media platform shall, not later than the 14th day, excluding
Saturdays and Sundays, after the date the platform receives the
complaint:
(1) review the content;
(2) determine whether the content adheres to the
platform's acceptable use policy;
(3) take appropriate steps based on the determination
under Subdivision (2); and
(4) notify the user regarding the determination made
under Subdivision (2) and the steps taken under Subdivision (3).
SUBCHAPTER D. ENFORCEMENT
Sec. 120.151. ACTION BY ATTORNEY GENERAL. (a) The attorney
general may bring an action against a social media platform to
enjoin a violation of this chapter.
(b) If an injunction is granted in an action brought under
Subsection (a), the attorney general may recover costs incurred in
bringing the action, including reasonable attorney's fees and
reasonable investigative costs.
SECTION 3. The heading to Chapter 321, Business & Commerce
Code, is amended to read as follows:
CHAPTER 321. REGULATION OF [CERTAIN] ELECTRONIC MAIL
SECTION 4. Section 321.001, Business & Commerce Code, is
amended by adding Subdivision (4-a) to read as follows:
(4-a) "Malicious computer code" means an unwanted
computer program or other set of instructions inserted into a
computer's memory, operating system, or program that:
(A) is specifically constructed with the ability
to replicate itself or to affect the other programs or files in the
computer by attaching a copy of the unwanted program or other set of
instructions to one or more computer programs or files; or
(B) is intended to perform an unauthorized
process that will adversely impact the confidentiality of
information contained in or the integrity or availability of the
computer's memory, operating system, or program.
SECTION 5. Subchapter B, Chapter 321, Business & Commerce
Code, is amended by adding Section 321.054 to read as follows:
Sec. 321.054. IMPEDING ELECTRONIC MAIL MESSAGES
PROHIBITED. An electronic mail service provider may not
intentionally impede the transmission of another person's
electronic mail message based on the content of the message unless:
(1) the provider is authorized to block the
transmission under Section 321.114 or other applicable state or
federal law; or
(2) the provider has a good faith, reasonable belief
that the message contains malicious computer code, obscene
material, material depicting sexual conduct, or material that
violates other law.
SECTION 6. Section 321.105(a), Business & Commerce Code, is
amended to read as follows:
(a) In lieu of actual damages, a person injured by a
violation of this chapter arising from the transmission of an
unsolicited or commercial electronic mail message or by a violation
of Section 321.054 may recover an amount equal to the lesser of:
(1) $10 for each unlawful message or each message
unlawfully impeded, as applicable; or
(2) $25,000 for each day the unlawful message is
received or the message is unlawfully impeded, as applicable.
SECTION 7. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 143A to read as follows:
CHAPTER 143A. DISCOURSE ON SOCIAL MEDIA PLATFORMS
Sec. 143A.001. DEFINITIONS. In this chapter:
(1) "Censor" means any action taken to edit, alter,
block, ban, delete, remove, deplatform, demonetize, de-boost,
regulate, restrict, inhibit the publication or reproduction of, or
deny equal access or visibility to expression, to suspend a right to
post, remove, or post an addendum to any content or material posted
by a user, or to otherwise discriminate against expression.
(2) "Expression" means any word, music, sound, still
or moving image, number, or other perceivable communication.
(3) "Receive," with respect to an expression, means to
read, hear, look at, access, or gain access to the expression.
(4) "Social media platform" has the meaning assigned
by Section 120.001, Business & Commerce Code.
(5) "Unlawful expression" means an expression that is
unlawful under the United States Constitution, federal law, the
Texas Constitution, or the laws of this state, including expression
that constitutes a tort under the laws of this state or the United
States.
(6) "User" means a person who posts, uploads,
transmits, shares, or otherwise publishes or receives expression,
through a social media platform. The term includes a person who has
a social media platform account that the social media platform has
disabled or locked.
Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media
platform may not censor a user, a user's expression, or a user's
ability to receive the expression of another person based on:
(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user's expression
or another person's expression; or
(3) a user's geographic location in this state or any
part of this state.
(b) This section applies regardless of whether the
viewpoint is expressed on a social media platform or through any
other medium.
Sec. 143A.003. WAIVER PROHIBITED. (a) A waiver or
purported waiver of the protections provided by this chapter is
void as unlawful and against public policy, and a court or
arbitrator may not enforce or give effect to the waiver, including
in an action brought under Section 143A.007, notwithstanding any
contract or choice-of-law provision in a contract.
(b) The waiver prohibition described by Subsection (a) is a
public-policy limitation on contractual and other waivers of the
highest importance and interest to this state, and this state is
exercising and enforcing this limitation to the full extent
permitted by the United States Constitution and Texas Constitution.
Sec. 143A.004. APPLICABILITY OF CHAPTER. (a) This chapter
applies only to a user who:
(1) resides in this state;
(2) does business in this state; or
(3) shares or receives expression in this state.
(b) This chapter applies only to expression that is shared
or received in this state.
(c) This chapter applies only to a social media platform
that functionally has more than 50 million active users in the
United States in a calendar month.
(d) This chapter applies to the maximum extent permitted by
the United States Constitution and the laws of the United States but
no further than the maximum extent permitted by the United States
Constitution and the laws of the United States.
Sec. 143A.005. LIMITATION ON EFFECT OF CHAPTER. This
chapter does not subject a social media platform to damages or other
legal remedies to the extent the social media platform is protected
from those remedies under federal law.
Sec. 143A.006. CONSTRUCTION OF CHAPTER. (a) This chapter
does not prohibit a social media platform from censoring expression
that:
(1) the social media platform is specifically
authorized to censor by federal law;
(2) is the subject of a referral or request from an
organization with the purpose of preventing the sexual
exploitation of children and protecting survivors of sexual abuse
from ongoing harassment;
(3) directly incites criminal activity or consists of
specific threats of violence targeted against a person or group
because of their race, color, disability, religion, national origin
or ancestry, age, sex, or status as a peace officer or judge; or
(4) is unlawful expression.
(b) This chapter may not be construed to prohibit or
restrict a social media platform from authorizing or facilitating a
user's ability to censor specific expression on the user's platform
or page at the request of that user.
(c) This chapter may not be construed to limit or expand
intellectual property law.
Sec. 143A.007. USER REMEDIES. (a) A user may bring an
action against a social media platform that violates this chapter
with respect to the user.
(b) If the user proves that the social media platform
violated this chapter with respect to the user, the user is entitled
to recover:
(1) declaratory relief under Chapter 37, including
costs and reasonable and necessary attorney's fees under Section
37.009; and
(2) injunctive relief.
(c) If a social media platform fails to promptly comply with
a court order in an action brought under this section, the court
shall hold the social media platform in contempt and shall use all
lawful measures to secure immediate compliance with the order,
including daily penalties sufficient to secure immediate
compliance.
(d) A user may bring an action under this section regardless
of whether another court has enjoined the attorney general from
enforcing this chapter or declared any provision of this chapter
unconstitutional unless that court decision is binding on the court
in which the action is brought.
(e) Nonmutual issue preclusion and nonmutual claim
preclusion are not defenses to an action brought under this
section.
Sec. 143A.008. ACTION BY ATTORNEY GENERAL. (a) Any person
may notify the attorney general of a violation or potential
violation of this chapter by a social media platform.
(b) The attorney general may bring an action to enjoin a
violation or a potential violation of this chapter. If the
injunction is granted, the attorney general may recover costs and
reasonable attorney's fees incurred in bringing the action and
reasonable investigative costs incurred in relation to the action.
SECTION 8. (a) Mindful of Leavitt v. Jane L., 518 U.S. 137
(1996), in which in the context of determining the severability of a
state statute the United States Supreme Court held that an explicit
statement of legislative intent is controlling, it is the intent of
the legislature that every provision, section, subsection,
sentence, clause, phrase, or word in this Act, and every
application of the provisions in this Act, are severable from each
other.
(b) If any application of any provision in this Act to any
person, group of persons, or circumstances is found by a court to be
invalid or unconstitutional, the remaining applications of that
provision to all other persons and circumstances shall be severed
and may not be affected. All constitutionally valid applications
of this Act shall be severed from any applications that a court
finds to be invalid, leaving the valid applications in force,
because it is the legislature's intent and priority that the valid
applications be allowed to stand alone.
(c) If any court declares or finds a provision of this Act
facially unconstitutional, when discrete applications of that
provision can be enforced against a person, group of persons, or
circumstances without violating the United States Constitution and
Texas Constitution, those applications shall be severed from all
remaining applications of the provision, and the provision shall be
interpreted as if the legislature had enacted a provision limited
to the persons, group of persons, or circumstances for which the
provision's application will not violate the United States
Constitution and Texas Constitution.
(d) The legislature further declares that it would have
enacted this Act, and each provision, section, subsection,
sentence, clause, phrase, or word, and all constitutional
applications of this Act, irrespective of the fact that any
provision, section, subsection, sentence, clause, phrase, or word,
or applications of this Act, were to be declared unconstitutional.
(e) If any provision of this Act is found by any court to be
unconstitutionally vague, the applications of that provision that
do not present constitutional vagueness problems shall be severed
and remain in force.
(f) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), (d), and (e) of this
section on the ground that severance would rewrite the statute or
involve the court in legislative or lawmaking activity. A court
that declines to enforce or enjoins a state official from enforcing
a statutory provision does not rewrite a statute, as the statute
continues to contain the same words as before the court's decision.
A judicial injunction or declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting
enforcement that may subsequently be vacated by a later court if
that court has a different understanding of the requirements of the
Texas Constitution or United States Constitution;
(2) is not a formal amendment of the language in a
statute; and
(3) no more rewrites a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
SECTION 9. Chapter 143A, Civil Practice and Remedies Code,
as added by this Act, applies only to a cause of action that accrues
on or after the effective date of this Act.
SECTION 10. This Act takes effect on the 91st day after the
last day of the legislative session.
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