SF 2219 (LSB 5153XS (6) 90)

SENATE FILE 2219

BY  PETERSEN

A BILL FOR

An Act relating to the regulation of access to obscene material by minors on social media platforms, and including effective date 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 context otherwise requires:

   1.  “Child pornography” means the same as defined in 18 U.S.C. §2256.
   2.  “Child sexual abuse material” means any of the following:
   a.  Child pornography.
   b.  Obscene material that depicts a minor personally engaging in, or personally simulating, sexual conduct.
   3.  “Identifiable minor” means the same as defined in 18 U.S.C. §2256.
   4.  “Minor” means the same as defined in 18 U.S.C. §2256.
   5.  “Obscene material” means the same as defined in section 728.1.
   6.  “Reporting user” means a natural person who reports material to a social media platform using the means provided by the social media platform.
   7.  “Social media company” means a person or entity that owns or operates one or more social media platforms. “Social media company” does not include a nonprofit organization exempt from federal income tax pursuant to section 501(c)(3) of the Internal Revenue Code.
   8.  a.  “Social media platform” means a public or semipublic internet-based service or application that has users in this state and that meets all of the following criteria:
   (1)  (a)  A substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application.
   (b)  A service or application that provides electronic mail or direct messaging services shall not be considered to meet this criterion on the basis of that function alone.
   (2)  The service or application allows users to do all of the following:
   (a)  Construct a public or semipublic profile for purposes of signing into and using the service or application.
   (b)  Populate a list of other users with whom an individual shares a social connection within the system.
   (c)  Create or post content viewable by other users, including on message boards, in chat rooms, or through a landing page or main feed that presents the user with content generated by other users.
   b.  “Social media platform” does not include any of the following:
   (1)  A stand-alone direct messaging service that provides end-to-end encrypted communication or the portion of a multiservice platform that uses end-to-end encrypted communication.
   (2)  An internet-based service or application owned or operated by a nonprofit organization exempt from federal income tax pursuant to section 501(c)(3) of the Internal Revenue Code.
    Sec. 2.  NEW SECTION.  659B.2  Reporting requirements.
   A social media platform shall do all of the following:
   1.  Provide, in a mechanism that is reasonably accessible to users, a means for a user who is a resident of this state to report material to the social media platform that the user reasonably believes meets all of the following criteria:
   a.  The reported material is child sexual abuse material.
   b.  The reporting user is an identifiable minor depicted in the reported material.
   c.  The reported material is displayed, stored, or hosted on the social media platform.
   2.  Collect information reasonably sufficient to enable the social media platform to contact, pursuant to subsection 3, a reporting user.
   3.  Contact a reporting user in writing by a method, including but not limited to a telephone number for purposes of sending text messages or an electronic mail address, that meets all of the following criteria:
   a.  The method is chosen by the reporting user.
   b.  The method is not a method that is within the control of the social media company that owns or operates the social media platform.
   4.  a.  Permanently block the instance of reported material from being viewable on the social media platform if the reported material meets all of the following criteria:
   (1)  There is a reasonable basis to believe that the reported material is child sexual abuse material.
   (2)  The reported material is displayed, stored, or hosted on the social media platform.
   (3)  (a)  The report contains basic identifying information, such as an account identifier, sufficient to permit the social media platform to locate the reported material.
   (b)  A social media platform shall not require a report to contain a specific piece of information for purposes of this subparagraph.
   b.  A social media platform shall make reasonable efforts to remove and block other instances of the same reported material blocked pursuant to this subsection from being viewable on the social media platform.
   5.  Provide written confirmation to a reporting user that the social media platform received that person’s report that meets all of the following criteria:
   a.  The written confirmation is provided to the reporting user within thirty-six hours of when the material was first reported.
   b.  The written confirmation is provided using the information collected from the reporting user under subsection 2.
   c.  The written confirmation informs the reporting user of the schedule of regular written updates that the social media platform is required to make under subsection 6.
   6.  a.  Provide a written update to the reporting user as to the status of the social media platform’s handling of the reported material using the information collected from the reporting user under subsection 2.
   b.  The written update required by this paragraph shall be provided seven days after the date on which the written confirmation required under subsection 5 was provided and every seven days thereafter until the final written determination required by subsection 7 is provided.
   7.  Issue a final written determination to the reporting user, using the information collected from the reporting user under subsection 2, stating one of the following:
   a.  The reported material has been determined to be child sexual abuse material that was displayed, stored, or hosted on the social media platform and has been blocked on the social media platform.
   b.  The reported material has been determined not to be child sexual abuse material.
   c.  The reported material has been determined not to be displayed, stored, or hosted on the social media platform.
   8.  a.  Except as provided in paragraph “b”, comply with this section no later than thirty days after the date on which material was first reported pursuant to this section.
   b.  (1)  If the social media platform cannot comply with this section due to circumstances beyond the reasonable control of the social media platform, the social media platform shall comply with this section no later than sixty days after the date on which material was first reported pursuant to this section.
   (2)  If this paragraph applies, the social media platform shall promptly provide written notice of the delay, no later than forty-eight hours from the time the social media platform knew the delay was likely to occur, to the reporting user using the information collected from the reporting user under subsection 2.
    Sec. 3.  NEW SECTION.  659B.3  Liability.
   1.  A social media company that fails to comply with the requirements of this chapter shall be liable to a reporting user for all of the following:
   a.  Any actual damages sustained by the reporting user as a result of the violation.
   b.  (1)  (a)  Subject to subparagraph divisions (b) and (c), statutory damages of no more than two hundred fifty thousand dollars per violation.
   (b)  If a social media platform has permanently blocked the instance of the reported material pursuant to section 659B.2, subsection 4, before a complaint is filed for a violation of this chapter, the maximum statutory damages awarded pursuant to subparagraph division (a) shall be one hundred twenty-five thousand dollars per violation.
   (c)  If a social media platform meets all of the following requirements, the maximum statutory damages awarded pursuant to subparagraph division (a), for a violation of section 658B.2, subsections 4, 5, 6, and 7, shall be seventy-five thousand dollars per violation:
   (i)  The social media platform registers with, and participates in, the national center for missing and exploited children’s take it down service or service’s successor.
   (ii)  The social media platform receives updated hash values for identified child sexual abuse material from the national center for missing and exploited children’s take it down service, or the service’s successor, at least once every thirty-six hours.
   (iii)  Within thirty-six hours of receiving updated hash values for identified child sexual abuse material from the national center for missing and exploited children’s take it down service, or service’s successor, pursuant to subparagraph subdivision (ii), the social media platform removes child sexual abuse material identified by hash values from the social media platform.
   (iv)  The social media platform reports identified child sexual abuse material to the national center for missing and exploited children’s cybertipline, as required by 18 U.S.C. §2258A.
   (v)  The social media platform provides to a reporting user all of the following when a user reports child sexual abuse material to the platform directly:
   (A)  Written confirmation to the reporting user that the social media platform received that person’s report within thirty-six hours after the child sexual abuse material was reported.
   (B)  A final written determination to the reporting user within thirty days after the date on which the material was first reported.
   (2)  In determining the amount of statutory damages pursuant to this paragraph, a court shall consider the willfulness and severity of the violation and whether the social media platform has previously violated this chapter.
   c.  Costs of the action including reasonable attorney fees.
   d.  Any other relief that the court deems proper.
   2.  The failure of a social media platform to comply with section 658B.2, subsections 4, 5, 6, and 7, within sixty days after the date on which material was first reported pursuant to section 658B.2 shall establish a rebuttable presumption that the reporting user is entitled to statutory damages under this section.
   3.  This chapter shall not be construed to limit or impair in any way a cause of action under section 714H.3.
    Sec. 4.  NEW SECTION.  659B.4  Civil actions.
   1.  This section shall apply only in a civil action brought by, or on behalf of, or for the benefit of, a person who is a minor or nonminor dependent and is a victim of commercial sexual exploitation committed by a person who is over eighteen years of age or facilitated, aided, or abetted by a social media platform in violation of subsection 7. For purposes of this section, the age of the victim, the status of the victim as a minor or nonminor dependent, and the age of the defendant is determined at the time of the defendant’s act of commercial sexual exploitation of the victim.
   2.  In a civil action brought by, on behalf of, or for the benefit of a minor, or nonminor dependent, against a person who engaged in any act of commercial sexual exploitation of a minor or nonminor dependent, whenever a trier of fact is authorized by a statute, other than subsection 3, to impose either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter, and the amount of the fine, penalty, or other remedy is subject to the trier of fact’s discretion, the trier of fact shall consider all of the following factors, in addition to other appropriate factors, in determining the amount of fine, civil penalty, or other penalty, or other remedy to impose. If the trier of fact makes an affirmative finding in regard to one or more of the following factors, the trier of fact may impose a fine, civil penalty, or other penalty, or other remedy in an amount up to three times greater than authorized by the statute, or, if the statute does not authorize a specific amount, up to three times greater than the amount the trier of fact would impose in the absence of that affirmative finding:
   a.  Whether the defendant’s conduct was directed to more than one minor or nonminor dependent.
   b.  Whether one or more minors or nonminor dependents suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct.
   c.  Whether the defendant knew or reasonably should have known that the victim was a minor or nonminor dependent. It shall not be a defense to imposition of fines, penalties, or other remedies pursuant to this paragraph that the defendant was unaware of the victim’s age or status as a nonminor dependent at the time of the act.
   3.  If the trier of fact is not authorized by statute to impose a civil penalty in an action described in subsection 2, the court may award a civil penalty not exceeding fifty thousand dollars, and not less than ten thousand dollars, for each act of commercial sexual exploitation committed by the defendant upon making an affirmative finding in regard to one or more of the factors in subsection 2. This penalty may be imposed in addition to any other remedy available in law or in equity.
   4.  Any penalty imposed pursuant to this section shall be paid to the victim of the act of sexual exploitation.
   5.  It shall not be a defense to the imposition of fines or penalties pursuant to this section that the victim consented to the act of commercial sexual exploitation.
   6.  If the victim is under eighteen years of age, the court, in its discretion, may order that any penalty imposed pursuant to this section be held in trust for the victim and used exclusively for the benefit and well-being of the victim. When the victim reaches eighteen years of age or is emancipated, the trust shall expire and any unspent remainder shall be the sole property of the victim.
   7.  a.  A social media platform shall not knowingly facilitate, aid, or abet commercial sexual exploitation.
   b.  For a violation of this subsection, a court shall award statutory damages not exceeding four million dollars and not less than one million dollars for each act of commercial sexual exploitation facilitated, aided, or abetted by the social media platform.
   c.  A social media platform shall not be deemed to be in violation of this subsection if the social media platform demonstrates all of the following:
   (1)  The social media platform instituted and maintained a program of at least biannual audits of the social media platform designs, algorithms, practices, affordances, and features to detect designs, algorithms, practices, affordances, or features that have the potential to cause or contribute to violations of this subsection.
   (2)  The social media platform took action, within thirty days of the completion of an audit described in subparagraph (1), designed to mitigate or eliminate the reasonably foreseeable risk that a design, algorithm, practice, affordance, or feature violates, or contributes to a violation of, this subsection.
   (3)  The social media platform provided to each member of the social media platform’s board of directors a true and correct copy of each audit within ninety days of the audit being completed accompanied by a description of any action taken pursuant to subparagraph (2).
   (4)  For purposes of this subsection, a social media platform shall be deemed to have knowledge under paragraph “a” if all of the following are true:
   (a)  Material was reported to a social media platform using the mechanism required under section 659B.2, subsection 1, for four consecutive months.
   (b)  The criteria set forth in section 659B.2, subsection 1, are established with respect to that reported material.
   (c)  The reported material was first displayed, stored, or hosted on the platform after January 1, 2025.
   (5)  For the purposes of this subsection, “facilitate, aid, or abet” means to deploy a system, design, feature, or affordance that is a substantial factor in causing minor users to be victims of commercial sexual exploitation.
   8.  A waiver of the provisions of this section is contrary to public policy and is void and unenforceable.
   9.  Notwithstanding section 614.1 or any other provision of law to the contrary, no time limitation shall apply for an action brought under this section.
   10.  For purposes of this section:
   a.  “Commercial sexual exploitation” means an act committed for the purpose of obtaining property, money, or anything else of value in exchange for, or as a result of, a sexual act of a minor or nonminor dependent, including but not limited to an act that would constitute a violation of any of the following:
   (1)  Sex trafficking of a minor in violation of section 710A.2.
   (2)  Pimping of a minor in violation of section 725.2.
   (3)  Pandering of a minor in violation of section 725.3.
   (4)  Procurement of a child for lascivious acts in violation of section 709.8.
   (5)  Enticing a minor in violation of section 710.10.
   (6)  Sexual exploitation of a minor, in violation of section 728.12, subsections 1 and 2.
   b.  “Nonminor dependent” means the same as dependent adult defined in section 235B.2.
   c.  “Social media platform” does not include any of the following:
   (1)  A stand-alone direct messaging service that provides end-to-end encrypted communication or the portion of a multiservice platform that uses end-to-end encrypted communication.
   (2)  An internet-based service or application owned or operated by a nonprofit organization exempt from federal income tax pursuant to section 501(c)(3) of the Internal Revenue Code.
    Sec. 5.  EFFECTIVE DATE.  This Act takes effect on January 1, 2025.
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 the regulation of access to obscene material by a minor on social media platforms.
   The bill requires a social media platform to provide, in a mechanism that is reasonably accessible to users, a means for a user who is an Iowa resident to report material to the social media platform that the user reasonably believes meets certain criteria, including that the reported material is child sexual abuse material in which the reporting user is an identifiable minor depicted in the reported material.
   The bill requires the social media platform to permanently block the reported material and make reasonable efforts to remove and block other instances of the same reported material from being viewable on the social media platform if there is a reasonable basis to believe that the reported material is child sexual abuse material that is displayed, stored, or hosted on the social media platform, and the report contains basic identifying information sufficient to permit the social media platform to locate the reported material.
   The bill makes a social media platform liable to the reporting user, including for statutory damages of no more than $250,000 per violation, $125,000 per violation, or $75,000 per violation, as specified.
   The bill prohibits a social media platform from knowingly facilitating, aiding, or abetting commercial sexual exploitation, as specified. The bill would require a court to award statutory damages not exceeding $4 million and not less than $1 million for each act of commercial sexual exploitation facilitated, aided, or abetted by the social media platform. The bill defines “facilitate, aid, or abet” to mean to deploy a system, design, feature, or affordance that is a substantial factor in causing minor users to be victims of commercial sexual exploitation. The bill prohibits a social media platform from being deemed to be in violation of this provision if the social media platform demonstrates certain mitigating facts, including that the social media platform instituted and maintained a program of at least biannual audits of its designs, algorithms, practices, affordances, and features to detect designs, algorithms, practices, affordances, or features that have the potential to cause or contribute to violations of that provision. The bill provides that there is no time limitation in which to bring a civil action against a social media platform that violates this provision.
   The bill takes effect on January 1, 2025.