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  87S20454 SCL/JES-D
 
  By: Cain H.B. No. 20
 
 
 
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 quarterly transparency
  report outlining actions taken to enforce the policy.
         Sec. 120.053.  QUARTERLY 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 quarterly
  transparency report that includes, with respect to the preceding
  three-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 24 hours
  of receiving the notice, 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.  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 unless:
               (1)  the provider is authorized to block the
  transmission under Section 321.114; or
               (2)  the message contains a computer virus, as defined
  by Section 33.01, Penal Code, obscene material, material depicting
  sexual conduct, or material that violates other law.
         SECTION 5.  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 6.  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.  The
  term includes an action taken to inhibit a social media platform
  user's ability to be viewed by or interact with another user of the
  platform.
               (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 7.  (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 8.  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 9.  This Act takes effect on the 91st day after the
  last day of the legislative session.