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68th Legislature 2023 HB 770.1
1 HOUSE BILL NO. 770
2 INTRODUCED BY M. REGIER, K. ZOLNIKOV
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS REGARDING REGULATION OF
5 ELECTRONIC AND SOCIAL MEDIA COMMUNICATIONS; REQUIRING SOCIAL MEDIA PLATFORMS TO
6 PUBLICLY DISCLOSE CERTAIN INFORMATION; REQUIRING SOCIAL MEDIA PLATFORMS TO PUBLISH
7 ACCEPTABLE USE POLICIES AND TRANSPARENCY REPORTS; PROVIDING REQUIREMENTS FOR
8 REMOVAL OF CONTENT FROM SOCIAL MEDIA PLATFORMS AND REQUIRING AN APPEAL
9 PROCEDURE TO CHALLENGE THE REMOVAL; PROHIBITING CENSORSHIP BY SOCIAL MEDIA
10 PLATFORMS; PROVIDING A CAUSE OF ACTION AND REMEDIES AGAINST A SOCIAL MEDIA
11 PLATFORM; PROHIBITING TRANSMISSION OF CERTAIN COMMERCIAL E-MAIL MESSAGES;
12 PROVIDING REQUIREMENTS FOR TRANSMISSION OF UNSOLICITED E-MAIL MESSAGES;
13 PROHIBITING AN E-MAIL SERVICE PROVIDER FROM IMPEDING TRANSMISSION OF E-MAIL
14 MESSAGES OR SELLING OR PROVIDING CERTAIN E-MAIL ADDRESSES TO ANOTHER; PROVIDING A
15 CRIMINAL PENALTY FOR TRANSMISSION OF CERTAIN OBSCENE E-MAIL MESSAGES; PROVIDING
16 CIVIL ACTIONS, DAMAGES, AND PENALTIES FOR VIOLATIONS INVOLVING TRANSMISSION OF E-MAIL
17 MESSAGES; PROVIDING IMMUNITIES AND QUALIFIED IMMUNITIES FOR TELECOMMUNICATIONS
18 CARRIERS, E-MAIL SERVICE PROVIDERS, AND E-MAIL MESSAGE SENDERS; PROVIDING
19 DEFINITIONS; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.”
20
21 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
22
23 NEW SECTION. Section 1. Legislative findings. The legislature finds that:
24 (1) each person in this state has a fundamental interest in the free exchange of ideas and
25 information, including the freedom of others to share and receive ideas and information;
26 (2) this state has a fundamental interest in protecting the free exchange of ideas and information in
27 this state;
28 (3) social media platforms function as common carriers, are affected with a public interest, are
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1 central public forums for debate, and have enjoyed government support in the United States; and
2 (4) social media platforms with the largest numbers of users are common carriers by virtue of their
3 market dominance.
4
5 NEW SECTION. Section 2. Definitions. As used in [sections 1 through 15], the following definitions
6 apply:
7 (1) "Censor" means to block, ban, remove, deplatform, demonetize, deboost, restrict, deny equal
8 access or visibility to, or otherwise discriminate against expression.
9 (2) "Expression" means any word, music, sound, still or moving image, number, or other
10 perceivable communication.
11 (3) "Internet services provider" has the meaning provided in 2-17-602.
12 (4) "Receive" means, with respect to an expression, to read, hear, look at, access, or gain access
13 to the expression.
14 (5) (a) "Social media platform" means a website or application that is open to the public, allows a
15 user to create an account, and enables users to communicate with other users for the primary purpose of
16 posting information, comments, messages, or images.
17 (b) The term does not include:
18 (i) an internet services provider;
19 (ii) electronic mail; or
20 (iii) an online service, application, or website:
21 (A) that consists primarily of news, sports, entertainment, or other information or content that is not
22 user generated but is instead preselected by the provider; or
23 (B) for which any chat, comments, or interactive functionality is incidental to or dependent on the
24 provision of the content described in subsection (5)(b)(iii)(A).
25 (6) "Unlawful expression" means an expression that is unlawful under the United States
26 constitution, the Montana constitution, federal law, or the laws of this state, including expression that constitutes
27 a tort under federal law or the laws of this state.
28 (7) "User" means a person who posts, uploads, transmits, shares, or otherwise publishes or
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1 receives content or expression through a social media platform. The term includes a person who has a social
2 media platform account that the social media platform has locked or disabled.
3
4 NEW SECTION. Section 3. Public disclosures. (1) A social media platform shall, in accordance
5 with [sections 1 through 15], publicly disclose accurate information regarding its content management, data
6 management, and business practices, including specific information regarding the manner in which the social
7 media platform:
8 (a) curates and targets content to users;
9 (b) places and promotes content, services, and products, including its own content, services, and
10 products;
11 (c) moderates content;
12 (d) uses search, ranking, or other algorithms or procedures that determine results on the platform;
13 and
14 (e) provides users' performance data on the use of the social media platform and its products and
15 services.
16 (2) The disclosures required under subsection (1) must be sufficient to enable users to make an
17 informed choice regarding the purchase of, use of access to, or use of services from the platform.
18 (3) A social media platform shall publish the disclosure required under subsection (1) on a website
19 that is easily accessible by the public.
20
21 NEW SECTION. Section 4. Acceptable use policy. (1) A social media platform shall publish an
22 acceptable use policy in a location that is easily accessible to a user.
23 (2) A social media platform's acceptable use policy must:
24 (a) reasonably inform users about the types of content allowed on the social media platform;
25 (b) explain the steps the social media platform will take to ensure the content complies with the
26 policy;
27 (c) explain the means by which users can notify the social media platform of illegal content, illegal
28 activity, or content that potentially violates the acceptable use policy. The means of notification must include an
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1 e-mail address or relevant complaint intake mechanism to handle user complaints and a complaint system as
2 required in [section 6].
3 (d) include publication of a transparency report every 6 months pursuant to [section 5] outlining
4 actions taken to enforce the acceptable use policy.
5
6 NEW SECTION. Section 5. Reporting requirements. (1) As part of a social media platform's
7 acceptable use policy under [section 4], the social media platform shall publish a transparency report every 6
8 months that includes, with respect to the preceding 6-month period:
9 (a) the total number of instances in which the social media platform was alerted to illegal content,
10 illegal activity, or content in potential violation of the acceptable use policy, broken out by:
11 (i) a user complaint;
12 (ii) a complaint by an employee of or person contracting with the social media platform; or
13 (iii) content flagged by an internal automatic detection tool;
14 (b) subject to subsection (2), the number of instances in which the social media platform took
15 action with respect to illegal content, illegal activity, or content in potential violation of the acceptable use policy
16 known to the social media platform due to the nature of the content, including:
17 (i) content removal;
18 (ii) content demonetization;
19 (iii) content deprioritization;
20 (iv) the addition of an assessment to content;
21 (v) account suspension;
22 (vi) account removal; or
23 (vii) any other action taken in accordance with the acceptable use policy;
24 (c) the country of the user who provided the content for each instance provided for in subsection
25 (1)(b);
26 (d) the number of coordinated campaigns, if applicable;
27 (e) the number of instances in which a user appealed the decision to remove the user's content
28 that potentially violated the acceptable use policy;
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1 (f) the percentage of appeals provided for in subsection (1)(e) that resulted in the restoration of
2 the content; and
3 (g) a description of each tool, practice, action, or technique used in enforcing the acceptable use
4 policy.
5 (2) The information provided for in subsection (1)(b) must be categorized by:
6 (a) the element of the acceptable use policy that was violated; and
7 (b) the source for the alert of illegal content, illegal activity, or content in potential violation of the
8 acceptable use policy, including:
9 (i) a government;
10 (ii) a user;
11 (iii) an internal automated detection tool;
12 (iv) coordination with other social media platform; or
13 (v) persons employed by or contracting with the social media platform.
14 (3) A social media platform shall publish the information required under subsection (1) with an
15 open license, in a machine-readable and open format, and in a location that is easily accessible to users.
16
17 NEW SECTION. Section 6. Complaint system required. A social media platform shall provide an
18 easily accessible complaint system to enable a user to submit a complaint in good faith and track the status of
19 the complaint, including a complaint regarding illegal content or illegal activity or a decision made by the social
20 media platform to remove content posted by the user.
21
22 NEW SECTION. Section 7. Processing of complaints. A social media platform that receives a
23 complaint of illegal content or illegal activity on the social media platform shall make a good faith effort to
24 evaluate the legality of the content or activity within 48 hours of receiving the complaint, excluding weekends
25 and holidays, and subject to reasonable expectations based on concerns about the legitimacy of the complaint.
26
27 NEW SECTION. Section 8. Removal of content -- exceptions. (1) Except as provided in subsection
28 (2), if a social media platform removes content based on a violation of the social media platform's acceptable
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1 use policy under [section 4], the social media platform shall, concurrently with the removal:
2 (a) notify the user who provided the content of the removal and explain the reason the content was
3 removed;
4 (b) allow the user to appeal the decision to remove the content to the social media platform as
5 provided for in [section 9]; and
6 (c) provide written notice to the user who provided the content:
7 (i) of the determination regarding an appeal requested under subsection (1)(b); and
8 (ii) in the case of a reversal of the social media platform's decision to remove the content, of the
9 reason for the reversal.
10 (2) A social media platform is not required to provide a user with notice or an opportunity to appeal
11 under subsection (1) if the social media platform:
12 (a) is unable to contact the user after taking reasonable steps to make contact; or
13 (b) knows that the content that potentially violates the acceptable use policy relates to an ongoing
14 law enforcement investigation.
15
16 NEW SECTION. Section 9. Appeal procedures. If a social media platform receives a user complaint
17 about removal of content provided by the user that the user believes was not in violation of the acceptable use
18 policy, within 14 days after receiving the complaint, excluding weekends and holidays, the social media platform
19 shall:
20 (1) review the content;
21 (2) determine whether the content adheres to the social media platform's acceptable use policy;
22 (3) take appropriate steps based on the determination under subsection (2); and
23 (4) notify the user regarding the determination made under subsection (2) and the steps taken
24 under subsection (3).
25
26 NEW SECTION. Section 10. Censorship prohibited. (1) A social media platform may not censor a
27 user, a user's expression, or a user's ability to receive the expression of another person based on:
28 (a) the viewpoint of the user or another person;
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1 (b) the viewpoint represented in the user's expression or another person's expression; or
2 (c) a user's geographic location in this state.
3 (2) The provisions of this section apply regardless of whether the viewpoint is expressed on a
4 social media platform or through any other medium.
5
6 NEW SECTION. Section 11. Waiver prohibited. (1) A wavier or purported waiver of the protections
7 provided by [sections 1 through 15] is void as unlawful and against public policy. A court or arbitrator may not
8 enforce or give effect to the waiver, including in an action brought under [section 14], notwithstanding any
9 contract or choice-of-law provision in a contract.
10 (2) The waiver prohibition provided for in this section is a public policy limitation on contractual and
11 other waivers of the highest importance and interest to this state, and this state exercises and enforces this
12 limitation to the fullest extent permitted by the United States constitution and the Montana constitution.
13
14 NEW SECTION. Section 12. Limitation on effect of laws. [Sections 1 through 15] do not subject a
15 social media platform to damages or other legal remedies to the extent the social media platform is protected
16 from those remedies under federal law.
17
18 NEW SECTION. Section 13. Statutory construction. [Sections 1 through 15] do not prohibit a social
19 media platform from censoring expression that:
20 (1) the social media platform is specifically authorized to censor by federal law;
21 (2) is the subject of a referral or request from an organization with the purpose of preventing the
22 sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment;
23 (3) directly incites criminal activity or consists of specific threats of violence targeted against a
24 person or group because of their race, color, disability, religion, national origin, ancestry, age, sex, or status as
25 a peace officer or judge; or
26 (4) is an unlawful expression.
27
28 NEW SECTION. Section 14. Action by user -- remedies. (1) A user may bring an action against a
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1 social media platform that violates [sections 1 through 15] with respect to the user. If the user proves that the
2 social media platform violated [sections 1 through 15] with respect to the user, the user is entitled to:
3 (a) declaratory relief; and
4 (b) injunctive relief.
5 (2) If a social media platform fails to promptly comply with a court order in an action brought under
6 this section, the court shall hold the social media platform in contempt and shall use all lawful measures to
7 secure immediate compliance with the order, including daily penalties in an amount sufficient to secure
8 immediate compliance.
9 (3) A user may bring an action under this section regardless of whether another court has enjoined
10 the attorney general from enforcing [sections 1 through 15] or declared any provision