Texas 2021 - 87th 2nd C.S.

Texas House Bill HB20 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	H.B. No. 20
	1	+	By: Cain, White, Burrows, Metcalf, Shaheen, H.B. No. 20
	2	+	et al.
2	3
3	4
	5	+	A BILL TO BE ENTITLED
4	6		AN ACT
5	7		relating to censorship of or certain other interference with
6	8		digital expression, including expression on social media platforms
7	9		or through electronic mail messages.
8	10		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	11		SECTION 1. The legislature finds that:
10	12		(1) each person in this state has a fundamental
11	13		interest in the free exchange of ideas and information, including
12	14		the freedom of others to share and receive ideas and information;
13	15		(2) this state has a fundamental interest in
14	16		protecting the free exchange of ideas and information in this
15	17		state;
16	18		(3) social media platforms function as common
17	19		carriers, are affected with a public interest, are central public
18	20		forums for public debate, and have enjoyed governmental support in
19	21		the United States; and
20	22		(4) social media platforms with the largest number of
21	23		users are common carriers by virtue of their market dominance.
22	24		SECTION 2. Subtitle C, Title 5, Business & Commerce Code, is
23	25		amended by adding Chapter 120 to read as follows:
24	26		CHAPTER 120. SOCIAL MEDIA PLATFORMS
25	27		SUBCHAPTER A. GENERAL PROVISIONS
26	28		Sec. 120.001. DEFINITIONS. In this chapter:
27	29		(1) "Social media platform" means an Internet website
28	30		or application that is open to the public, allows a user to create
29	31		an account, and enables users to communicate with other users for
30	32		the primary purpose of posting information, comments, messages, or
31	33		images. The term does not include:
32	34		(A) an Internet service provider as defined by
33	35		Section 324.055;
34	36		(B) electronic mail; or
35	37		(C) an online service, application, or website:
36	38		(i) that consists primarily of news,
37	39		sports, entertainment, or other information or content that is not
38	40		user generated but is preselected by the provider; and
39	41		(ii) for which any chat, comments, or
40	42		interactive functionality is incidental to, directly related to, or
41	43		dependent on the provision of the content described by Subparagraph
42	44		(i).
43	45		(2) "User" means a person who posts, uploads,
44	46		transmits, shares, or otherwise publishes or receives content
45	47		through a social media platform. The term includes a person who has
46	48		a social media platform account that the social media platform has
47	49		disabled or locked.
48	50		Sec. 120.002. APPLICABILITY OF CHAPTER. (a) This chapter
49	51		applies only to a user who:
50	52		(1) resides in this state;
51	53		(2) does business in this state; or
52	54		(3) shares or receives content on a social media
53	55		platform in this state.
54	56		(b) This chapter applies only to a social media platform
55	57		that functionally has more than 50 million active users in the
56	58		United States in a calendar month.
57	59		Sec. 120.003. CONSTRUCTION OF CHAPTER. This chapter may
58	60		not be construed to limit or expand intellectual property law.
59	61		SUBCHAPTER B. DISCLOSURE REQUIREMENTS
60	62		Sec. 120.051. PUBLIC DISCLOSURES. (a) A social media
61	63		platform shall, in accordance with this subchapter, publicly
62	64		disclose accurate information regarding its content management,
63	65		data management, and business practices, including specific
64	66		information regarding the manner in which the social media
65	67		platform:
66	68		(1) curates and targets content to users;
67	69		(2) places and promotes content, services, and
68	70		products, including its own content, services, and products;
69	71		(3) moderates content;
70	72		(4) uses search, ranking, or other algorithms or
71	73		procedures that determine results on the platform; and
72	74		(5) provides users' performance data on the use of the
73	75		platform and its products and services.
74	76		(b) The disclosure required by Subsection (a) must be
75	77		sufficient to enable users to make an informed choice regarding the
76	78		purchase of or use of access to or services from the platform.
77	79		(c) A social media platform shall publish the disclosure
78	80		required by Subsection (a) on an Internet website that is easily
79	81		accessible by the public.
80	82		Sec. 120.052. ACCEPTABLE USE POLICY. (a) A social media
81	83		platform shall publish an acceptable use policy in a location that
82	84		is easily accessible to a user.
83	85		(b) A social media platform's acceptable use policy must:
84	86		(1) reasonably inform users about the types of content
85	87		allowed on the social media platform;
86	88		(2) explain the steps the social media platform will
87	89		take to ensure content complies with the policy;
88	90		(3) explain the means by which users can notify the
89	91		social media platform of content that potentially violates the
90	92		acceptable use policy, illegal content, or illegal activity, which
91	93		includes:
92	94		(A) an e-mail address or relevant complaint
93	95		intake mechanism to handle user complaints; and
94	96		(B) a complaint system described by Subchapter C;
95	97		and
96	98		(4) include publication of a biannual transparency
97	99		report outlining actions taken to enforce the policy.
98	100		Sec. 120.053. BIANNUAL TRANSPARENCY REPORT. (a) As part of
99	101		a social media platform's acceptable use policy under Section
100	102		120.052, the social media platform shall publish a biannual
101	103		transparency report that includes, with respect to the preceding
102	104		six-month period:
103	105		(1) the total number of instances in which the social
104	106		media platform was alerted to illegal content, illegal activity, or
105	107		potentially policy-violating content by:
106	108		(A) a user complaint;
107	109		(B) an employee of or person contracting with the
108	110		social media platform; or
109	111		(C) an internal automated detection tool;
110	112		(2) subject to Subsection (b), the number of instances
111	113		in which the social media platform took action with respect to
112	114		illegal content, illegal activity, or potentially policy-violating
113	115		content known to the platform due to the nature of the content as
114	116		illegal content, illegal activity, or potentially policy-violating
115	117		content, including:
116	118		(A) content removal;
117	119		(B) content demonetization;
118	120		(C) content deprioritization;
119	121		(D) the addition of an assessment to content;
120	122		(E) account suspension;
121	123		(F) account removal; or
122	124		(G) any other action taken in accordance with the
123	125		platform's acceptable use policy;
124	126		(3) the country of the user who provided the content
125	127		for each instance described by Subdivision (2);
126	128		(4) the number of coordinated campaigns, if
127	129		applicable;
128	130		(5) the number of instances in which a user appealed
129	131		the decision to remove the user's potentially policy-violating
130	132		content;
131	133		(6) the percentage of appeals described by Subdivision
132	134		(5) that resulted in the restoration of content; and
133	135		(7) a description of each tool, practice, action, or
134	136		technique used in enforcing the acceptable use policy.
135	137		(b) The information described by Subsection (a)(2) must be
136	138		categorized by:
137	139		(1) the rule violated; and
138	140		(2) the source for the alert of illegal content,
139	141		illegal activity, or potentially policy-violating content,
140	142		including:
141	143		(A) a government;
142	144		(B) a user;
143	145		(C) an internal automated detection tool;
144	146		(D) coordination with other social media
145	147		platforms; or
146	148		(E) persons employed by or contracting with the
147	149		platform.
148	150		(c) A social media platform shall publish the information
149	151		described by Subsection (a) with an open license, in a
150	152		machine-readable and open format, and in a location that is easily
151	153		accessible to users.
152	154		SUBCHAPTER C. COMPLAINT PROCEDURES
153	155		Sec. 120.101. COMPLAINT SYSTEM. A social media platform
154	156		shall provide an easily accessible complaint system to enable a
155	157		user to submit a complaint in good faith and track the status of the
156	158		complaint, including a complaint regarding:
157	159		(1) illegal content or activity; or
158	160		(2) a decision made by the social media platform to
159	161		remove content posted by the user.
160	162		Sec. 120.102. PROCESSING OF COMPLAINTS. A social media
161	163		platform that receives notice of illegal content or illegal
162	164		activity on the social media platform shall make a good faith effort
163	165		to evaluate the legality of the content or activity within 48 hours
164	166		of receiving the notice, excluding hours during a Saturday or
165	167		Sunday and subject to reasonable exceptions based on concerns about
166	168		the legitimacy of the notice.
167	169		Sec. 120.103. REMOVAL OF CONTENT; EXCEPTIONS. (a) Except
168	170		as provided by Subsection (b), if a social media platform removes
169	171		content based on a violation of the platform's acceptable use
170	172		policy under Section 120.052, the social media platform shall,
171	173		concurrently with the removal:
172	174		(1) notify the user who provided the content of the
173	175		removal and explain the reason the content was removed;
174	176		(2) allow the user to appeal the decision to remove the
175	177		content to the platform; and
176	178		(3) provide written notice to the user who provided
177	179		the content of:
178	180		(A) the determination regarding an appeal
179	181		requested under Subdivision (2); and
180	182		(B) in the case of a reversal of the social media
181	183		platform's decision to remove the content, the reason for the
182	184		reversal.
183	185		(b) A social media platform is not required to provide a
184	186		user with notice or an opportunity to appeal under Subsection (a) if
185	187		the social media platform:
186	188		(1) is unable to contact the user after taking
187	189		reasonable steps to make contact; or
188	190		(2) knows that the potentially policy-violating
189	191		content relates to an ongoing law enforcement investigation.
190	192		Sec. 120.104. APPEAL PROCEDURES. If a social media
191	193		platform receives a user complaint on the social media platform's
192	194		removal from the platform of content provided by the user that the
193	195		user believes was not potentially policy-violating content, the
194	196		social media platform shall, not later than the 14th day, excluding
195	197		Saturdays and Sundays, after the date the platform receives the
196	198		complaint:
197	199		(1) review the content;
198	200		(2) determine whether the content adheres to the
199	201		platform's acceptable use policy;
200	202		(3) take appropriate steps based on the determination
201	203		under Subdivision (2); and
202	204		(4) notify the user regarding the determination made
203	205		under Subdivision (2) and the steps taken under Subdivision (3).
204	206		SUBCHAPTER D. ENFORCEMENT
205	207		Sec. 120.151. ACTION BY ATTORNEY GENERAL. (a) The attorney
206	208		general may bring an action against a social media platform to
207	209		enjoin a violation of this chapter.
208	210		(b) If an injunction is granted in an action brought under
209	211		Subsection (a), the attorney general may recover costs incurred in
210	212		bringing the action, including reasonable attorney's fees and
211	213		reasonable investigative costs.
212	214		SECTION 3. The heading to Chapter 321, Business & Commerce
213	215		Code, is amended to read as follows:
214	216		CHAPTER 321. REGULATION OF [CERTAIN] ELECTRONIC MAIL
215	217		SECTION 4. Section 321.001, Business & Commerce Code, is
216	218		amended by adding Subdivision (4-a) to read as follows:
217	219		(4-a) "Malicious computer code" means an unwanted
218	220		computer program or other set of instructions inserted into a
219	221		computer's memory, operating system, or program that:
220	222		(A) is specifically constructed with the ability
221	223		to replicate itself or to affect the other programs or files in the
222	224		computer by attaching a copy of the unwanted program or other set of
223	225		instructions to one or more computer programs or files; or
224	226		(B) is intended to perform an unauthorized
225	227		process that will adversely impact the confidentiality of
226	228		information contained in or the integrity or availability of the
227	229		computer's memory, operating system, or program.
228	230		SECTION 5. Subchapter B, Chapter 321, Business & Commerce
229	231		Code, is amended by adding Section 321.054 to read as follows:
230	232		Sec. 321.054. IMPEDING ELECTRONIC MAIL MESSAGES
231	233		PROHIBITED. An electronic mail service provider may not
232	234		intentionally impede the transmission of another person's
233	235		electronic mail message based on the content of the message unless:
234	236		(1) the provider is authorized to block the
235	237		transmission under Section 321.114 or other applicable state or
236	238		federal law; or
237	239		(2) the provider has a good faith, reasonable belief
238	240		that the message contains malicious computer code, obscene
239	241		material, material depicting sexual conduct, or material that
240	242		violates other law.
241	243		SECTION 6. Section 321.105(a), Business & Commerce Code, is
242	244		amended to read as follows:
243	245		(a) In lieu of actual damages, a person injured by a
244	246		violation of this chapter arising from the transmission of an
245	247		unsolicited or commercial electronic mail message or by a violation
246	248		of Section 321.054 may recover an amount equal to the lesser of:
247	249		(1) $10 for each unlawful message or each message
248	250		unlawfully impeded, as applicable; or
249	251		(2) $25,000 for each day the unlawful message is
250	252		received or the message is unlawfully impeded, as applicable.
251	253		SECTION 7. Title 6, Civil Practice and Remedies Code, is
252	254		amended by adding Chapter 143A to read as follows:
253	255		CHAPTER 143A. DISCOURSE ON SOCIAL MEDIA PLATFORMS
254	256		Sec. 143A.001. DEFINITIONS. In this chapter:
255		-	(1) "Censor" means to block, ban, remove, deplatform,
256		-	demonetize, de-boost, restrict, deny equal access or visibility to,
257		-	or otherwise discriminate against expression.
	257	+	(1) "Censor" means any action taken to edit, alter,
	258	+	block, ban, delete, remove, deplatform, demonetize, de-boost,
	259	+	regulate, restrict, inhibit the publication or reproduction of, or
	260	+	deny equal access or visibility to expression, to suspend a right to
	261	+	post, remove, or post an addendum to any content or material posted
	262	+	by a user, or to otherwise discriminate against expression.
258	263		(2) "Expression" means any word, music, sound, still
259	264		or moving image, number, or other perceivable communication.
260	265		(3) "Receive," with respect to an expression, means to
261	266		read, hear, look at, access, or gain access to the expression.
262	267		(4) "Social media platform" has the meaning assigned
263	268		by Section 120.001, Business & Commerce Code.
264	269		(5) "Unlawful expression" means an expression that is
265	270		unlawful under the United States Constitution, federal law, the
266	271		Texas Constitution, or the laws of this state, including expression
267	272		that constitutes a tort under the laws of this state or the United
268	273		States.
269	274		(6) "User" means a person who posts, uploads,
270	275		transmits, shares, or otherwise publishes or receives expression,
271	276		through a social media platform. The term includes a person who has
272	277		a social media platform account that the social media platform has
273	278		disabled or locked.
274	279		Sec. 143A.002. CENSORSHIP PROHIBITED. (a) A social media
275	280		platform may not censor a user, a user's expression, or a user's
276	281		ability to receive the expression of another person based on:
277	282		(1) the viewpoint of the user or another person;
278	283		(2) the viewpoint represented in the user's expression
279	284		or another person's expression; or
280	285		(3) a user's geographic location in this state or any
281	286		part of this state.
282	287		(b) This section applies regardless of whether the
283	288		viewpoint is expressed on a social media platform or through any
284	289		other medium.
285	290		Sec. 143A.003. WAIVER PROHIBITED. (a) A waiver or
286	291		purported waiver of the protections provided by this chapter is
287	292		void as unlawful and against public policy, and a court or
288	293		arbitrator may not enforce or give effect to the waiver, including
289	294		in an action brought under Section 143A.007, notwithstanding any
290	295		contract or choice-of-law provision in a contract.
291	296		(b) The waiver prohibition described by Subsection (a) is a
292	297		public-policy limitation on contractual and other waivers of the
293	298		highest importance and interest to this state, and this state is
294	299		exercising and enforcing this limitation to the full extent
295	300		permitted by the United States Constitution and Texas Constitution.
296	301		Sec. 143A.004. APPLICABILITY OF CHAPTER. (a) This chapter
297	302		applies only to a user who:
298	303		(1) resides in this state;
299	304		(2) does business in this state; or
300	305		(3) shares or receives expression in this state.
301	306		(b) This chapter applies only to expression that is shared
302	307		or received in this state.
303	308		(c) This chapter applies only to a social media platform
304	309		that functionally has more than 50 million active users in the
305	310		United States in a calendar month.
306	311		(d) This chapter applies to the maximum extent permitted by
307	312		the United States Constitution and the laws of the United States but
308	313		no further than the maximum extent permitted by the United States
309	314		Constitution and the laws of the United States.
310	315		Sec. 143A.005. LIMITATION ON EFFECT OF CHAPTER. This
311	316		chapter does not subject a social media platform to damages or other
312	317		legal remedies to the extent the social media platform is protected
313	318		from those remedies under federal law.
314	319		Sec. 143A.006. CONSTRUCTION OF CHAPTER. (a) This chapter
315	320		does not prohibit a social media platform from censoring expression
316	321		that:
317	322		(1) the social media platform is specifically
318	323		authorized to censor by federal law;
319	324		(2) is the subject of a referral or request from an
320	325		organization with the purpose of preventing the sexual
321	326		exploitation of children and protecting survivors of sexual abuse
322	327		from ongoing harassment;
323	328		(3) directly incites criminal activity or consists of
324	329		specific threats of violence targeted against a person or group
325	330		because of their race, color, disability, religion, national origin
326	331		or ancestry, age, sex, or status as a peace officer or judge; or
327	332		(4) is unlawful expression.
328	333		(b) This chapter may not be construed to prohibit or
329	334		restrict a social media platform from authorizing or facilitating a
330	335		user's ability to censor specific expression on the user's platform
331	336		or page at the request of that user.
332	337		(c) This chapter may not be construed to limit or expand
333	338		intellectual property law.
334	339		Sec. 143A.007. USER REMEDIES. (a) A user may bring an
335	340		action against a social media platform that violates this chapter
336	341		with respect to the user.
337	342		(b) If the user proves that the social media platform
338	343		violated this chapter with respect to the user, the user is entitled
339	344		to recover:
340	345		(1) declaratory relief under Chapter 37, including
341	346		costs and reasonable and necessary attorney's fees under Section
342	347		37.009; and
343	348		(2) injunctive relief.
344	349		(c) If a social media platform fails to promptly comply with
345	350		a court order in an action brought under this section, the court
346	351		shall hold the social media platform in contempt and shall use all
347	352		lawful measures to secure immediate compliance with the order,
348	353		including daily penalties sufficient to secure immediate
349	354		compliance.
350	355		(d) A user may bring an action under this section regardless
351	356		of whether another court has enjoined the attorney general from
352	357		enforcing this chapter or declared any provision of this chapter
353	358		unconstitutional unless that court decision is binding on the court
354	359		in which the action is brought.
355	360		(e) Nonmutual issue preclusion and nonmutual claim
356	361		preclusion are not defenses to an action brought under this
357	362		section.
358	363		Sec. 143A.008. ACTION BY ATTORNEY GENERAL. (a) Any person
359	364		may notify the attorney general of a violation or potential
360	365		violation of this chapter by a social media platform.
361	366		(b) The attorney general may bring an action to enjoin a
362	367		violation or a potential violation of this chapter. If the
363	368		injunction is granted, the attorney general may recover costs and
364	369		reasonable attorney's fees incurred in bringing the action and
365	370		reasonable investigative costs incurred in relation to the action.
366	371		SECTION 8. (a) Mindful of Leavitt v. Jane L., 518 U.S. 137
367	372		(1996), in which in the context of determining the severability of a
368	373		state statute the United States Supreme Court held that an explicit
369	374		statement of legislative intent is controlling, it is the intent of
370	375		the legislature that every provision, section, subsection,
371	376		sentence, clause, phrase, or word in this Act, and every
372	377		application of the provisions in this Act, are severable from each
373	378		other.
374	379		(b) If any application of any provision in this Act to any
375	380		person, group of persons, or circumstances is found by a court to be
376	381		invalid or unconstitutional, the remaining applications of that
377	382		provision to all other persons and circumstances shall be severed
378	383		and may not be affected. All constitutionally valid applications
379	384		of this Act shall be severed from any applications that a court
380	385		finds to be invalid, leaving the valid applications in force,
381	386		because it is the legislature's intent and priority that the valid
382	387		applications be allowed to stand alone.
383	388		(c) If any court declares or finds a provision of this Act
384	389		facially unconstitutional, when discrete applications of that
385	390		provision can be enforced against a person, group of persons, or
386	391		circumstances without violating the United States Constitution and
387	392		Texas Constitution, those applications shall be severed from all
388	393		remaining applications of the provision, and the provision shall be
389	394		interpreted as if the legislature had enacted a provision limited
390	395		to the persons, group of persons, or circumstances for which the
391	396		provision's application will not violate the United States
392	397		Constitution and Texas Constitution.
393	398		(d) The legislature further declares that it would have
394	399		enacted this Act, and each provision, section, subsection,
395	400		sentence, clause, phrase, or word, and all constitutional
396	401		applications of this Act, irrespective of the fact that any
397	402		provision, section, subsection, sentence, clause, phrase, or word,
398	403		or applications of this Act, were to be declared unconstitutional.
399	404		(e) If any provision of this Act is found by any court to be
400	405		unconstitutionally vague, the applications of that provision that
401	406		do not present constitutional vagueness problems shall be severed
402	407		and remain in force.
403	408		(f) No court may decline to enforce the severability
404	409		requirements of Subsections (a), (b), (c), (d), and (e) of this
405	410		section on the ground that severance would rewrite the statute or
406	411		involve the court in legislative or lawmaking activity. A court
407	412		that declines to enforce or enjoins a state official from enforcing
408	413		a statutory provision does not rewrite a statute, as the statute
409	414		continues to contain the same words as before the court's decision.
410	415		A judicial injunction or declaration of unconstitutionality:
411	416		(1) is nothing more than an edict prohibiting
412	417		enforcement that may subsequently be vacated by a later court if
413	418		that court has a different understanding of the requirements of the
414	419		Texas Constitution or United States Constitution;
415	420		(2) is not a formal amendment of the language in a
416	421		statute; and
417	422		(3) no more rewrites a statute than a decision by the
418	423		executive not to enforce a duly enacted statute in a limited and
419	424		defined set of circumstances.
420	425		SECTION 9. Chapter 143A, Civil Practice and Remedies Code,
421	426		as added by this Act, applies only to a cause of action that accrues
422	427		on or after the effective date of this Act.
423	428		SECTION 10. This Act takes effect on the 91st day after the
424	429		last day of the legislative session.
425		-	______________________________ ______________________________
426		-	President of the Senate Speaker of the House
427		-	I certify that H.B. No. 20 was passed by the House on August
428		-	30, 2021, by the following vote: Yeas 77, Nays 49, 1 present, not
429		-	voting; and that the House concurred in Senate amendments to H.B.
430		-	No. 20 on September 2, 2021, by the following vote: Yeas 78, Nays
431		-	42, 1 present, not voting.
432		-	______________________________
433		-	Chief Clerk of the House
434		-	I certify that H.B. No. 20 was passed by the Senate, with
435		-	amendments, on August 31, 2021, by the following vote: Yeas 17,
436		-	Nays 14.
437		-	______________________________
438		-	Secretary of the Senate
439		-	APPROVED: __________________
440		-	Date
441		-	__________________
442		-	Governor