Texas 2021 - 87th 2nd C.S.

Texas Senate Bill SB90 Compare Versions

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