HF 2133 (LSB 5299YH (4) 89)

HOUSE FILE 2133

BY  SALMON

A BILL FOR

An Act relating to censorship of expression on interactive computer services and social media platforms and including retroactive applicability provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  659B.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Censor” means any action to edit, alter, block, ban, delete, remove, deplatform, demonetize, de-boost, regulate, restrict, inhibit the publication or reproduction of, deny equal access or visibility to, suspend the right to post, remove, or otherwise discriminate against expression. “Censor” also includes actions that deplatform a person or that inhibit or restrict an interactive computer service or social media 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.  “Interactive computer service” means an information service, system, or access software provider that provides or enables computer access by multiple users to a computer server. “Interactive computer service” does not include a person providing connectivity to the internet or another wide area network.
   4.  “Receive”, with respect to an expression, means to read, hear, look at, access, or gain access to the expression.
   5.  “Social media platform” means an internet search engine, internet website, internet system, access software provider, or application that is open to the public, allows a user of the platform to create an account, and enables users to communicate with one another for the primary purpose of posting information, comments, messages, or images. “Social media platform” does not include any of the following:
   a.  An internet service provider.
   b.  Electronic mail.
   c.  An online service, application, or website that consists primarily of news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider and for which any chat, comments, or interactive functionality is incidental to, directly related to, or dependent on the content.
   6.  “Unlawful expression” means an expression that is unlawful under the Constitution of the United States, federal law, the Constitution of the State of Iowa, or the laws of this state, including expression that constitutes a tort under the laws of this state or the United States.
   7.  “User” means a person who posts, uploads, transmits, shares, or otherwise publishes or receives expression, through a social media platform. “User” includes a person who has a social media platform account that the social media platform has disabled or locked.
    Sec. 2.  NEW SECTION.  659B.2  Prohibited actions.
   1.  An interactive computer service or social media platform shall not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on any of the following:
   a.  The viewpoint of the user or another person.
   b.  The viewpoint represented in the user’s expression or another person’s expression.
   c.  The geographic location of a user in the state.
   2.  This section applies regardless of whether the viewpoint is expressed on an interactive computer service, a social media platform, or through any other medium.
    Sec. 3.  NEW SECTION.  659B.3  Waiver prohibited.
   1.  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 shall not enforce or give effect to the waiver, including in an action brought under section 659B.7, notwithstanding any contract or choice-of-law provision in a contract.
   2.  The waiver prohibition shall not apply to contractual waivers to the extent such application would impair the obligation of contract in violation of the Constitution of the State of Iowa.
   3.  The waiver prohibition is a public policy limitation on contractual and other waivers of the highest importance and interest to the state, and the state is exercising and enforcing this limitation to the full extent permitted by the Constitution of the United States and the Constitution of the State of Iowa.
    Sec. 4.  NEW SECTION.  659B.4  Applicability.
   1.  This chapter applies only to a user who does any of the following:
   a.  Resides in this state.
   b.  Engages in business in this state.
   c.  Shares or receives expression in this state.
   2.  This chapter applies only to expression that is shared or received in this state.
   3.  This chapter applies only to a social media platform that functionally has more than fifty million active users in the United States in a calendar month.
   4.  This chapter applies to the maximum extent permitted by the Constitution of the United States and the laws of the United States but no further than the maximum extent permitted by the Constitution of the United States and the laws of the United States.
    Sec. 5.  NEW SECTION.  659B.5  Limitations.
   1.  This chapter does not subject an interactive computer service or a social media platform to any cause of action or liability to the extent the interactive computer service or social media platform is protected from causes of action or liability by federal law.
   2.  This chapter does not prohibit an interactive computer service or social media platform from any of the following:
   a.  Censoring expression that the interactive computer service or social media platform is specifically authorized to censor by federal law.
   b.  Censoring unlawful expression, including expression that unlawfully harasses individuals or unlawfully incites violence.
   3.  This chapter does not prohibit an interactive computer service or a social media platform from authorizing or facilitating a user’s ability to do any of the following:
   a.  Limit the user’s reception of obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable expression at the specific active request of that user.
   b.  Censor obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable expression on a specific active request of the user.
    Sec. 6.  NEW SECTION.  659B.6  Construction of chapter.
   1.  This chapter shall not be construed to apply to an interactive computer service or a social media platform to the extent the interactive computer service or social media platform is merely providing expression to a user in a particular instance in response to that user’s express request in that particular instance for expression limited on the basis of viewpoint or geographic location.
   2.  This chapter shall not be construed to apply to commentary by an interactive computer service or a social media platform, except to the extent the commentary is presented in a manner that delays or diminishes the visibility of expression, delays or denies the equal access to the commentary, or otherwise censors the commentary in violation of section 659B.2.
   3.  This chapter shall not be construed to limit or expand intellectual property law.
   4.  This chapter shall not be construed to apply to actions in which this chapter would violate the doctrine on the dormant commerce clause enunciated by the supreme court of the United States.
    Sec. 7.  NEW SECTION.  659B.7  User remedies.
   1.  A user may bring an action against an interactive computer service or a social media platform that violates this chapter with respect to the user.
   2.  If the user proves that the interactive computer service or a social media platform violated this chapter with respect to the user, the user is entitled to recover all of the following:
   a.  Declaratory relief, including costs and reasonable and necessary attorney fees.
   b.  Injunctive relief.
   c.  Civil damages for each act of censorship of seventy-five thousand dollars.
   3.  If an interactive computer service or a social media platform fails to promptly comply with a court order in an action brought under this section, the court shall hold the interactive computer service or 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.
   4.  A user may bring an action under this section regardless of whether another court has declared any provision of this chapter unconstitutional unless that court decision is binding on the court in which the action is brought.
   5.  Nonmutual issue preclusion and nonmutual claim preclusion are not defenses to an action brought under this section.
    Sec. 8.  NEW SECTION.  659B.8  Limitations on public enforcement.
   Notwithstanding any other law, the requirements of this chapter shall be enforced exclusively through the private civil actions described in section 659B.7. Enforcement of this chapter shall not be taken or threatened by the state, a political subdivision, a county attorney, or any executive or administrative officer or employee of the state or political subdivision against any person, except as provided by section 659B.7.
    Sec. 9.  RETROACTIVE APPLICABILITY.  This Act applies retroactively to a user before the effective date of this Act to remedy censorship of the user’s ability to share or receive expression that occurred before the effective date of this Act if censorship continues after this Act takes effect.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to censorship of expression on interactive computer services and social media platforms. The bill defines “censor”, “expression”, “interactive computer service”, “receive”, “social media platform”, “unlawful expression”, and “user”.
   The bill prohibits an interactive computer service or social media platform from censoring a user’s expression based upon the viewpoint of the user or another person, the viewpoint represented, or the geographic location of a user in the state.
   The bill does not allow an interactive computer service or social media platform to create a waiver of the protection provided within the bill.
   The bill applies only to users who reside, do business within, or share within the state and the expression is done on a 50-million user interactive computer service or social media platform within the state.
   The bill does not subject an interactive computer service or a social media platform to any cause of action or liability that the interactive computer service or social media platform is protected from by federal law. An interactive computer service or social media platform may censor expression that the interactive computer service or social media platform is specifically authorized to censor by federal law and that unlawfully harasses individuals or unlawfully incites violence. An interactive computer service or a social media platform may authorize a user’s ability to receive objectionable expression at the specific active request of that user.
   The bill does not apply to an interactive computer service or a social media platform that is providing expression to a user in a particular instance in response to that user’s express request or to commentary by an interactive computer service or a social media platform. The bill does not change existing intellectual property law or violate doctrine on the dormant commerce clause.
   The bill provides remedies for a user’s expression that was unlawfully limited. The bill authorizes a user to bring an action for a violation of the provisions of the bill and a prevailing user is entitled to declaratory relief, including costs and reasonable and necessary attorney fees, injunctive relief, and civil damages for each act of censorship of $75,000. A court must hold an interactive computer service or a social media platform in contempt if it fails to promptly comply with a court order. The bill may only be enforced through private civil action and not by public officials or entities.
   The bill applies retroactively to a user before the effective date of the bill to remedy censorship of the user’s ability to share or receive expression that occurred before the effective date if censorship continues after the bill takes effect.