Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB385 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 SENATE BILL 385
5	5	August 9, 2023 - Introduced by Senators C OWLES and CABRAL-GUEVARA,
6	6	cosponsored by Representatives STEFFEN, ARMSTRONG, GUNDRUM, MAXEY,
7	7	MURPHY, ROZAR, SCHMIDT, STUBBS, TITTL, TUSLER and WICHGERS. Referred to
8	8	Committee on Mental Health, Substance Abuse Prevention, Children and
9	9	Families.
10	10	AN ACT to create 100.75 of the statutes; relating to: use of social media
11	11	platforms by minors, granting rule-making authority, and providing a penalty.
12	12	Analysis by the Legislative Reference Bureau
13	13	This bill creates requirements related to social media companies' and social
14	14	media platforms' treatment of account holders on the basis of age.
15	15	Under the bill, social media companies must ensure that all accounts created
16	16	on or after January 1, 2019, are designated as a youth accounts that comply with the
17	17	youth account requirements of the bill. A social media company may remove the
18	18	youth account designation from an account if 1) the social media company estimates
19	19	that the account holder is not a minor through employment of a process or program
20	20	that provides a 95 percent accuracy rate of estimating age within 24 months of actual
21	21	age; 2) the social media company verifies that the account holder is not a minor; or
22	22	3) a parent or guardian of a minor account holder requests for the youth account
23	23	designation to be removed from the minor's account.
24	24	Under the bill, a social media company shall do all of the following in regards
25	25	to a youth account: 1) prevent direct messaging between the account holder and
26	26	other account holders or users with whom the youth account holder is not connected;
27	27	2) refrain from showing information about the youth account to any person not
28	28	connected to the youth account holder; 3) prevent advertising from being shown to
29	29	the youth account holder; 4) refrain from collecting or using personal information
30	30	from the youth account; 5) refrain from the use of targeted or suggested groups or
31	31	content on the youth account; and 6) ensure that the youth account cannot be used
32	32	between the hours of 10 p.m. and 7 a.m.
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36	36	SENATE BILL 385
37	37	The bill also provides to parents of minor account holders certain access,
38	38	including full access to the account and all its posts and messages, the ability to
39	39	change the time limits on the account, and to opt out the minor's account from the
40	40	youth account designation.
41	41	A violation of the requirements of the bill may result in the social media
42	42	platform being required to forfeit $100 per violation per day, an award of damages
43	43	to an injured account holder, and an injunction preventing further violations.
44	44	For further information see the state fiscal estimate, which will be printed as
45	45	an appendix to this bill.
46	46	The people of the state of Wisconsin, represented in senate and assembly, do
47	47	enact as follows:
48	48	SECTION 1. 100.75 of the statutes is created to read:
49	49	100.75 Social media company requirements. (1) DEFINITIONS. In this
50	50	section:
51	51	(a) “Account” means a social media platform account or profile.
52	52	(b) “Account holder” means a person who has, or opens, an account.
53	53	(c) “Educational entity” means any of the following:
54	54	1. A public school, as defined in s. 115.01 (1).
55	55	2. A charter school, as defined in s. 115.001 (1).
56	56	3. A tribal school, as defined in s. 115.001 (15m).
57	57	4. A private school participating in a program in s. 118.60 or 119.23.
58	58	5. The Wisconsin Center for the Blind and Visually Impaired.
59	59	6. The Wisconsin Educational Services Program for the Deaf and Hard of
60	60	Hearing.
61	61	7. A school of a parochial or denominational character that offers a course with
62	62	a sectarian objective.
63	63	8. A technical college under the authority of a district board, as defined in s.
64	64	38.01 (6).
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84	84	SECTION 1
85	85	SENATE BILL 385
86	86	9. A college campus, as defined in s. 36.05 (6m).
87	87	10. An institution, as defined in s. 36.05 (9).
88	88	11. A tribally controlled college located in this state.
89	89	12. A private, nonprofit postsecondary institution that is a member of the
90	90	Wisconsin Association of Independent Colleges and Universities.
91	91	(d) “Interactive computer service” means an information service, an
92	92	information system, or information access software that provides access to the
93	93	Internet or provides or enables computer access by multiple users to a computer
94	94	server. “Interactive computer service” includes a web service, a web system, a
95	95	website, a web application, and a web portal. “Interactive computer service” does not
96	96	include an Internet service provider.
97	97	(e) “Minor” means a resident under the age of 18. “Minor” does not include an
98	98	emancipated minor, as defined in s. 48.375 (2) (e).
99	99	(f) “Post” means content that an account holder or user makes available on a
100	100	social media platform for other account holders or users to view.
101	101	(g) “Resident” means an individual who resides in this state.
102	102	(h) “Social media company” means an interactive computer service that makes
103	103	available a social media platform that has 5,000,000 or more account holders.
104	104	(i) 1. “Social media platform” means an online forum that a social media
105	105	company makes publicly available and for which the primary purpose of is enabling
106	106	an account holder to open a profile, upload a post, view a post of another account
107	107	holder, or interact with other account holders or users.
108	108	2. Notwithstanding subd. 1., “social media platform” does not include an online
109	109	service, website, or application for which the predominant or exclusive function is
110	110	any of the following:
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137	137	SECTION 1 SENATE BILL 385
138	138	a. Electronic mail.
139	139	b. The direct messaging of text, photo, or video messages that are sent between
140	140	devices by electronic means, in which the messages shared between the sender and
141	141	the recipient are visible only to the sender and the recipient and are not posted
142	142	publicly.
143	143	c. A streaming service that provides only licensed media in a continuous flow
144	144	from itself to the end user and that does not obtain a license to the media from an
145	145	account holder or user by agreement to its terms of service.
146	146	d. News, sports, entertainment, or other content that is preselected by a social
147	147	media platform that is not user-generated, on which any provided chat, comment,
148	148	or other interactive functionality is incidental to, directly related to, or dependent
149	149	upon the provision of the content.
150	150	e. A community forum, the primary purpose of which is for customer
151	151	self-service support related to products, sellers, services, events, or places, or any
152	152	combination thereof.
153	153	f. Online shopping or e-commerce if an account holder's or user's interaction
154	154	with other account holders or users is generally limited to the ability to upload a post
155	155	or comment on reviews, the ability to display lists or collections of goods for sale, and
156	156	other functions that are focused on online shopping or e-commerce rather than on
157	157	interaction between account holders or users.
158	158	g. Interactive gaming, virtual gaming, or an online service that allows the
159	159	creating and uploading of content for the purpose of interactive gaming, educational
160	160	entertainment, or entertainment associated with interactive gaming or educational
161	161	entertainment, and the communication related to that content.
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188	188	SECTION 1
189	189	SENATE BILL 385
190	190	h. A professional creative network for showcasing and discovering artistic
191	191	content if the content is required to be non-pornographic.
192	192	i. Single-purpose community groups for public safety if interaction between
193	193	account holders or users is generally limited to the single purpose and the
194	194	community has guidelines or policies against illegal content.
195	195	j. Providing career development opportunities, including professional
196	196	networking, job skills, learning certificates, and job posting and application services.
197	197	k. Business-to-business software.
198	198	L. A teleconferencing or videoconferencing service that allows reception and
199	199	transmission of audio and video signals for real-time communication.
200	200	m. Cloud storage.
201	201	n. Shared document collaboration.
202	202	o. Cloud computing services.
203	203	p. Providing access to or interfacing with data visualization platforms,
204	204	libraries, or hubs.
205	205	q. Permitting comments on a digital news website if the news content is posted
206	206	only by the provider of the digital news website.
207	207	r. Providing or obtaining technical support for a platform, product, or service.
208	208	s. Academic or scholarly research.
209	209	t. Genealogical research.
210	210	u. Providing content to account holders or users if any ability of account holders
211	211	or users to chat, comment, or interact with other account holders or users is directly
212	212	related to the provider's content.
213	213	v. A classified ad service that permits only the sale of goods and prohibits the
214	214	solicitation of personal services.
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241	241	SECTION 1 SENATE BILL 385
242	242	w. Use by and under the direction of an educational entity, including a learning
243	243	management system, a student engagement program, and a subject or skill-specific
244	244	program.
245	245	(j) “User” means a person who is not an account holder and who has access to
246	246	view or create a post on a social media platform.
247	247	(k) “Youth account” means an account on a social media platform for use by a
248	248	minor.
249	249	(2) AGE-BASED ACCOUNT REQUIREMENTS. (a) Except as provided in par. (b),
250	250	beginning on August 1, 2024, a social media company shall ensure that all accounts
251	251	created on or after January 1, 2019, are designated as youth accounts that comply
252	252	with the requirements under sub. (3).
253	253	(b) A social media company may remove a youth account designation from a
254	254	user's account and in turn be exempted from the corresponding requirements under
255	255	sub. (3) for the account if any of the following applies:
256	256	1. The social media company estimates that the account holder is not a minor
257	257	through employment of a process or program that provides a 95 percent accuracy rate
258	258	of estimating age within 24 months of actual age.
259	259	2. The social media company verifies that the account holder is not a minor.
260	260	3. A parent or guardian of a minor account holder requests that the social media
261	261	company remove the youth account designation from the minor's account as provided
262	262	under sub. (4) (f).
263	263	(3) YOUTH ACCOUNTS. A social media company shall do all of the following
264	264	regarding a youth account:
265	265	(a) Prevent direct messaging between the account holder and any other account
266	266	holder or user that is not linked to the account through friending or another process
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294	294	SECTION 1
295	295	SENATE BILL 385
296	296	through which 2 persons add each other to a list of contacts associated with the
297	297	account holder.
298	298	(b) Refrain from showing the account or information about the account in
299	299	search results provided to any other account holder or user that is not linked to the
300	300	account through friending or another process through which 2 persons add each
301	301	other to a list of contacts associated with the account holder.
302	302	(c) Prevent advertising from being shown to the account holder.
303	303	(d) Refrain from collecting or using personal information from the account or
304	304	the account holder's posts, messages, text, usage activities, or entered information,
305	305	other than information that is necessary to comply with state or federal law.
306	306	(e) Refrain from the use of targeted or suggested groups, accounts, users,
307	307	services, posts, and products on the account.
308	308	(f) Subject to sub. (4) (c), ensure that the account cannot be used or accessed
309	309	between the hours of 10 p.m. and 7 a.m. The time of day under this paragraph shall
310	310	be calculated on the basis of the Internet protocol address being used by the account
311	311	at the time of attempted access. The social media company shall ensure that an
312	312	account holder does not change or bypass the time restrictions under this paragraph.
313	313	(4) PARENTAL ACCESS. A social media company shall provide to a parent or
314	314	guardian of a minor account holder a password or other means for the parent or
315	315	guardian to access the minor's account until the account holder is no longer a minor.
316	316	The parent or guardian access required under this subsection shall include all of the
317	317	following:
318	318	(a) Access to posts that the minor has made on the social media platform.
319	319	(b) Access to all messages and responses sent by or to the minor on the social
320	320	media platform.
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347	347	SECTION 1 SENATE BILL 385
348	348	(c) The ability to change or eliminate the time restrictions required under sub.
349	349	(3) (c).
350	350	(d) The ability to set a limit of total time per day that the minor may use or
351	351	access the minor's youth account.
352	352	(e) The ability to access the minor's youth account without time restrictions.
353	353	(f) The ability to opt the minor's account out of the youth account designation
354	354	and the corresponding youth account requirements provided under sub. (3).
355	355	(5) PRIVACY. (a) A social media company and its agents may use and retain
356	356	information and data obtained under this section only for the purpose of complying
357	357	with this section and may not use that information or data for any other purpose.
358	358	(b) A social media company may not use or employ a person to process
359	359	estimation or verification requirements for the social media company unless the
360	360	person's principal place of business is located in the United States of America.
361	361	(6) WAIVER PROHIBITED. A social media company may not include a provision
362	362	in an agreement or contract, and a finder of fact or court may not enforce or give effect
363	363	to a provision in an agreement or contract, that waives, limits, or purports to waive
364	364	or limit any of the following:
365	365	(a) A protection or requirement of this section.
366	366	(b) The right of a person to cooperate with the department or to file a complaint
367	367	with the department.
368	368	(7) NOTICE AND ENFORCEMENT. (a) The department shall receive consumer
369	369	complaints alleging violations of this section, and shall investigate alleged violations
370	370	of this section. Subject to par. (b), the department, the department of justice in
371	371	consultation with the department, or a district attorney in consultation with the
372	372	department may bring an action for temporary or permanent injunctive or other
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400	400	SECTION 1
401	401	SENATE BILL 385
402	402	relief for any violation of this section or an action for the penalties authorized in sub.
403	403	(8).
404	404	(b) 1. At least 30 days before the day on which an action against a social media
405	405	company is initiated under par. (a), the department, the department of justice in
406	406	consultation with the department, or a district attorney in consultation with the
407	407	department seeking to bring an action under par. (a) shall provide the social media
408	408	company with written notice that identifies each alleged violation of this section, and
409	409	an explanation of the basis for each allegation.
410	410	2. An action may not be initiated under par. (a) if, within 30 days after the day
411	411	on which the social media company was provided notice under subd. 1., the social
412	412	media company cures the violation of this section and the social media company
413	413	provides to the department a written statement that the violation has been cured and
414	414	that no further violation will occur.
415	415	3. Notwithstanding subd. 2., the department, the department of justice, or a
416	416	district attorney may initiate an action under par. (a) if the social media company
417	417	does not cure a violation of this section or provide a written statement as provided
418	418	in subd. 2., or, if after curing a noticed violation of this section and providing a written
419	419	statement in accordance with subd. 2., the social media company commits another
420	420	violation of the same provision of this section.
421	421	(8) PENALTIES. A social media company that violates this section is subject to
422	422	all of the following:
423	423	(a) A forfeiture of $100 for each violation. Each account affected by a violation
424	424	constitutes a separate offense. Each day of continued violation constitutes a
425	425	separate offense.
426	426	(b) An order to pay an award of damages to an injured account holder.
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453	453	SECTION 1 SENATE BILL 385
454	454	(c) Disgorgement of the money the social media company received in the course
455	455	of violating this section's requirements and payout of the disgorged money to all
456	456	injured account holders.
457	457	(d) Notwithstanding s. 814.04 (1), a court-ordered award to the department
458	458	and the department of justice, as appropriate, for the reasonable and necessary costs
459	459	of investigation and expenses of prosecution, including court costs and attorney fees.
460	460	(e) Any other relief or course of action the court deems reasonable and
461	461	necessary.
462	462	(9) RULE MAKING. The department shall promulgate rules establishing all of the
463	463	following:
464	464	(a) Processes by which a social media company may meet the requirements of
465	465	this section.
466	466	(b) Acceptable forms or methods of age verification that are not limited to a
467	467	valid identification card issued by a government entity.
468	468	(c) Requirements for providing confirmation of the receipt of any information
469	469	provided by a person seeking to verify age under this section.
470	470	(d) Processes to confirm the identity of a person claiming to be a minor account
471	471	holder's parent or guardian.
472	472	(e) Requirements for social media companies regarding the retaining,
473	473	protecting, and securely disposing of any information obtained by a social media
474	474	company or one of its agents as a result of compliance with the requirements of this
475	475	section.
476	476	(f) Processes by which the department ensures that it appropriately retains,
477	477	protects, and securely disposes of any forms of identification or documents it obtains
478	478	in the course of enforcing this section.
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506	506	SECTION 1
507	507	SENATE BILL 385
508	508	(g) Such rules as are necessary to effectively enforce this section.
509	509	(10) DEPARTMENT REPORT. (a) The department shall, on July 1, 2025, and
510	510	annually thereafter, submit a report to the governor and the appropriate standing
511	511	committees of the legislature under s. 13.172 (3) that includes all of the following
512	512	information:
513	513	1. An evaluation of the liability and enforcement provisions of this section,
514	514	including the effectiveness of the department's efforts to enforce this section and any
515	515	recommendations for changes to this section.
516	516	2. A summary of the consumer interactions that are protected and not protected
517	517	by this section, including a list of alleged violations of this section that the
518	518	department has received.
519	519	3. An accounting for the year of all penalties assessed and all forfeitures
520	520	collected.
521	521	(b) The department may update or correct the report submitted under par. (a)
522	522	as new information becomes available.
523	523	SECTION 2.0Effective dates. This act takes effect on August 1, 2024, except as
524	524	follows:
525	525	(1) The treatment of s. 100.75 (9) takes effect on the day after publication.
526	526	(END)
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