88R10031 MLH-F

By: Slawson H.B. No. 4412

A BILL TO BE ENTITLED

AN ACT

relating to online agreements between certain minors and certain digital service providers.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle A, Title 11, Business & Commerce Code, is amended by adding Chapter 509 to read as follows:

CHAPTER 509. ONLINE AGREEMENTS BETWEEN MINORS AND DIGITAL SERVICE

PROVIDERS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 509.001. DEFINITIONS. In this chapter:

(1) "Digital service" means a website, an application, a program, or software that performs collection or processing functions with Internet connectivity.

(2) "Digital service provider" means a person who owns or operates a digital service.

(3) "Minor" means a child who is at least 13 years of age but younger than 18 years of age.

(4) "Personal identifying information" means any information linked or reasonably linked to a specific minor, including:

(A) a name, account name, alias, or online identifier;

(B) a home or other physical address;

(C) an Internet Protocol (IP) address or e-mail address;

(D) a social security number;

(E) a telephone number;

(F) a driver's license number or state identification card number;

(G) a passport number;

(H) physical characteristics or description;

(I) race, ethnicity, or national origin;

(J) religion or faith;

(K) sex, gender, or sexual orientation;

(L) family status;

(M) disability status;

(N) political affiliation;

(O) commercial information, including:

(i) records relating to personal property;

(ii) products or services the minor purchased, obtained, or considered; or

(iii) other histories, interests, or tendencies in consumption;

(P) biometric information;

(Q) device identifiers, online identifiers, persistent identifiers, or digital fingerprinting information;

(R) Internet, browsing, or search history, including any information relating to a minor's use of an Internet website;

(S) geolocation information;

(T) audio, electronic, visual, thermal, olfactory, or similar information, including facial recognition;

(U) educational information;

(V) health information;

(W) the contents of, attachments to, and parties to text messages, e-mails, voicemails, audio conversations, and video conversations;

(X) financial information, including:

(i) bank account numbers;

(ii) credit card numbers;

(iii) debit card numbers;

(iv) insurance policy numbers; or

(v) information related to the balance of any financial accounts; or

(Y) any inferences drawn from personal identifying information that might identify a minor's traits, characteristics, or trends.

Sec. 509.002. APPLICABILITY. (a) This chapter applies to a digital service provider that:

(1) collects or processes the personal identifying information of minors; and

(2) either:

(A) targets minors; or

(B) knows or should know that the digital service appeals to minors.

(b) For purposes of Subsection (a):

(1) a digital service targets or appeals to minors if:

(A) the digital service contains subject matter that is tailored toward minors, including:

(i) animated characters;

(ii) instruction or activities intended for minors;

(iii) music or audio popular among minors;

(iv) images containing:

(a) models who are minors; or

(b) celebrities who are minors or who are popular among minors;

(v) colloquial use of language that is common among minors; or

(vi) advertisements intended for minors; or

(B) empirical evidence obtained by the digital service provider, an advertiser, the press, third-party complaints, or another entity that conducts privacy and security impact assessments demonstrates that:

(i) many users of the digital service are minors; or

(ii) the intended audience for the digital service is minors; and

(2) a digital service does not target or appeal to minors by referring or linking to a digital service that targets or appeals to minors.

SUBCHAPTER B. DIGITAL SERVICE PROVIDER DUTIES AND PROHIBITIONS

Sec. 509.051. PROHIBITION ON AGREEMENTS WITH CERTAIN MINORS; EXEMPTIONS. (a) Except as provided by this section, a digital service provider may not enter into an agreement with a minor.

(b) For purposes of this section, an agreement includes:

(1) a terms of service agreement;

(2) a user agreement; and

(3) the creation of an account for a digital service.

(c) A digital service provider may enter into an agreement with a minor if the minor's parent or guardian consents in a manner that:

(1) is specific, informed, and unambiguous;

(2) takes into account:

(A) the minor's age; and

(B) the minor's developmental and cognitive needs and capabilities;

(3) is for only a single specific agreement;

(4) occurs in the absence of any financial or other incentive;

(5) occurs before the agreement is entered into;

(6) occurs in a time, place, and manner that the minor's parent or guardian would expect the consent to be sought; and

(7) is not deceptive or coercive.

SUBCHAPTER C. ENFORCEMENT

Sec. 509.101. CIVIL ACTION; LIABILITY. (a) A minor's parent or guardian may bring an action against a digital service provider for a violation of this chapter.

(b) Notwithstanding Sections 41.003 and 41.004, Civil Practice and Remedies Code, a parent or guardian who prevails in an action under this section is entitled to receive:

(1) injunctive relief;

(2) actual damages;

(3) punitive damages;

(4) reasonable attorney's fees;

(5) court costs; and

(6) any other relief the court deems appropriate.

(c) A violation of this chapter constitutes an injury in fact to the minor.

Sec. 509.102. DECEPTIVE TRADE PRACTICE. A violation of this chapter is a false, misleading, or deceptive act or practice as defined by Section 17.46(b). In addition to any remedy under this chapter, a remedy under Subchapter E, Chapter 17, is also available for a violation of this chapter.

SECTION 2. This Act takes effect September 1, 2024.