Bill Summary – FastDemocracy

Enrolled Copy                                                                           H.B. 464
                                 SOCIAL MEDIA AMENDMENTS
                                           2024 GENERAL SESSION
                                                 STATE OF UTAH
                                     Chief Sponsor: Jordan D. Teuscher Senate Sponsor: Kirk A. Cullimore
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  LONG TITLE
  General Description:
      This bill concerns harm to minors from social media.
  Highlighted Provisions:
      This bill:
      ▸ defines terms;
      ▸ amends the criminal offense of electronic communication harassment and creates a civil
  cause of action to address certain conduct involving minors;
      ▸ enacts legislative findings regarding potential harms of excessive social media use by
  minors;
      ▸ allows a private right of action related to harms to minors from excessive social media
  use and establishes related provisions;
      ▸ establishes an affirmative defense for a social media company to defend against the
  private right of action;
      ▸ prohibits waivers of rights and protections; and
      ▸ makes technical and conforming changes.
  Money Appropriated in this Bill:
      None
  Other Special Clauses:
      This bill provides a special effective date.
  Utah Code Sections Affected:
  AMENDS:
      76-9-201 (Effective 05/01/24), as last amended by Laws of Utah 2023, Chapter 111
  ENACTS:
      78B-3-1101 (Effective 10/01/24), Utah Code Annotated 1953
     H.B. 464                                                                              Enrolled Copy
       78B-3-1102 (Effective 10/01/24), Utah Code Annotated 1953
       78B-3-1103 (Effective 10/01/24), Utah Code Annotated 1953
       78B-3-1104 (Effective 10/01/24), Utah Code Annotated 1953
       78B-3-1105 (Effective 10/01/24), Utah Code Annotated 1953
       78B-3-1106 (Effective 10/01/24), Utah Code Annotated 1953
   REPEALS:
       13-63-101 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapters 477, 498
       13-63-102 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 498
       13-63-103 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 498
       13-63-104 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 498
       13-63-105 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 498
       13-63-201 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 498
       13-63-202 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 498
       13-63-203 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 498
       13-63-301 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 498
       13-63-401 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 477
       13-63-501 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapter 477
       13-63-601 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapters 477, 498
       13-63-701 (Effective 05/01/24), as enacted by Laws of Utah 2023, Chapters 477, 498
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   Be it enacted by the Legislature of the state of Utah:
         Section 1. Section 76-9-201 is amended to read:
         76-9-201 (Effective 05/01/24). Electronic communication harassment --
   Definitions -- Penalties.
   (1) As used in this section:
       (a) (i) "Adult" means an individual 18 years old or older.
            (ii) "Adult" does not include an individual who is 18 years old and enrolled in high
                school.
       (b) "Electronic communication" means a communication by electronic,
            electro-mechanical, or electro-optical communication device for the transmission and
            reception of audio, image, or text but does not include broadcast transmissions or
            similar communications that are not targeted at a specific individual.
       (c) "Electronic communication device" includes a telephone, a facsimile machine,
            electronic mail, a pager, a computer, or another device or medium that can be used to
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     Enrolled Copy                                                                                 H.B. 464
          communicate electronically.
      (d) (i) "Minor" means an individual who is younger than 18 years old.
          (ii) "Minor" includes an individual who is 18 years old and enrolled in high school.
      (e) "Minor victim" means a minor who is a victim of a violation of Subsection (4).
      [(e)] (f) "Personal identifying information" means the same as that term is defined in
          Section 76-6-1101.
  (2) Except to the extent the person's conduct constitutes an offense under Section 76-9-203,
      a person is guilty of electronic communication harassment and subject to prosecution in
      the jurisdiction where the communication originated or was received if with intent to
      intimidate, abuse, threaten, harass, frighten, or disrupt the electronic communications of
      another, the person:
      (a) (i) makes repeated contact by means of electronic communications, regardless of
          whether a conversation ensues; or
          (ii) after the recipient has requested or informed the person not to contact the
                recipient, and the person repeatedly or continuously:
                (A) contacts the electronic communication device of the recipient; or
                (B) causes an electronic communication device of the recipient to ring or to
                    receive other notification of attempted contact by means of electronic
                    communication;
      (b) makes contact by means of electronic communication and insults, taunts, or
          challenges the recipient of the communication or any person at the receiving location
          in a manner likely to provoke a violent or disorderly response;
      (c) makes contact by means of electronic communication and threatens to inflict injury,
          physical harm, or damage to any person or the property of any person; or
      (d) causes disruption, jamming, or overload of an electronic communication system
          through excessive message traffic or other means utilizing an electronic
          communication device.
  (3) A person is guilty of electronic communication harassment if the person:
      (a) electronically publishes, posts, or otherwise discloses personal identifying
          information of another individual in a public online site or forum with the intent to
          abuse, threaten, or disrupt the other individual's electronic communication and
          without the other individual's permission; or
      (b) sends a communication by electronic mail, instant message, or other similar means,
          if:
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      H.B. 464                                                                                 Enrolled Copy
            (i) the communication references personal identifying information of another
                individual;
            (ii) the person sends the communication:
                (A) without the individual's consent; and
                (B) with the intent to cause a recipient of the communication to reasonably believe
                     that the individual authorized or sent the communication; and
            (iii) with the intent to:
                (A) cause an individual physical, emotional, or economic injury or damage; or
                (B) defraud an individual.
   (4) A person is guilty of electronic communication harassment if:
       (a) the person:
            (i) is an adult;
            (ii) electronically publishes, posts, or otherwise discloses in a public online site or
                forum personal identifying information of a minor who is unrelated by blood,
                marriage, or adoption to the person; and
            (iii) knows of, but consciously disregards, a substantial and unjustifiable risk that
                performing the action described in Subsection (4)(a)(ii) will result in the minor
                being the victim of an offense described in Title 76, Chapter 5, Offenses Against
                the Individual; and
       (b) the minor described in Subsection (4)(a)(ii) is aware of the person's action described
            in Subsection (4)(a)(ii).
   [(4)] (5) (a) [Electronic communication harassment] Except as provided in Subsection
       (5)(b), a violation of Subsection (2) or (3) is a class B misdemeanor.
       (b) A second or subsequent [offense of electronic communication harassment] violation
            of Subsection (2) or (3) is a class A misdemeanor.
       (c) A violation of Subsection (4) is a class A misdemeanor.
   [(5)] (6) (a) Except as provided under Subsection [(5)(b)] (6)(b), criminal prosecution
       under this section does not affect an individual's right to bring a civil action for
       damages suffered as a result of the commission of an offense under this section.
       (b) This section does not create a civil cause of action based on electronic
            communications made for legitimate business purposes.
   (7) (a) A minor victim has a civil right of action against an actor who violates
       Subsection (4).
       (b) A minor victim who brings a successful civil action under Subsection (7)(a) is
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      Enrolled Copy                                                                               H.B. 464
          entitled to recover from the actor:
          (i) damages resulting from the violation of Subsection (4);
          (ii) reasonable attorney fees; and
          (iii) court costs.
        Section 2. Section 78B-3-1101 is enacted to read:
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                    Part 11. Harm to Minors by Algorithmically Curated Social Media Service
        78B-3-1101 (Effective 10/01/24). Definitions.
    As used in this part:
  (1) "Account holder" means a person who has, creates, or opens an account or profile to use
      an algorithmically curated social media service.
  (2) (a) "Adverse mental health outcome" means a condition affecting a minor's mental
      health that is:
          (i) diagnosable by a licensed mental health care provider; and
          (ii) acknowledged by professional mental health experts as having a negative impact
               on a minor's well-being.
      (b) "Adverse mental health outcome" includes depression, anxiety, suicidal thoughts or
          behaviors, and self-harm thoughts or behaviors.
  (3) "Algorithmically curated social media service" means a social media service that drives
      user engagement primarily through the use of:
      (a) a curation algorithm; and
      (b) engagement driven design elements.
  (4) "Content" means any information, visual depiction, or other material that appears on or
      is available or enabled through a social media service.
  (5) (a) "Curation algorithm" means a computational process or set of rules used by a
      social media platform that determines, influences, or personalizes, designed to
      encourage prolonged or frequent engagement:
          (i) the content a user views;
          (ii) the order in which content is displayed;
          (iii) how prominently content is displayed; or
          (iv) the manner in which content is displayed.
      (b) "Curation algorithm" does not include the curation of:
          (i) responses to specific user queries or user prompts requesting content related to
               defined topics or interests selected by the user; or
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      H.B. 464                                                                                Enrolled Copy
            (ii) content to ensure only age appropriate material is provided to a user based on the
                user's age;
            (iii) content that prevents a minor from viewing violent, bullying, threatening, or
                harassing content; or
            (iv) content to comply with any state or federal law restricting the display of material
                harmful to minors.
   (6) "Engagement driven design elements" means:
       (a) autoplay features that continuously play content without requiring user interaction;
       (b) scroll or pagination that loads additional content as long as the user continues
            scrolling; or
       (c) push notifications.
   (7) "Excessive use" means the use of a social media service by a minor to an extent that the
       use substantially interferes with the minor's normal functioning in:
       (a) academic performance;
       (b) sleep;
       (c) in-person relationships;
       (d) mental health; or
       (e) physical health.
   (8) "Minor" means an individual who is under 18 years old that:
       (a) has not been emancipated as that term is defined in Section 80-7-102; or
       (b) has not been married.
   (9) "Parent" includes a legal guardian.
   (10) "Push notification" means an automatic electronic message displayed on an account
       holder's device, when the user interface for the social media service is not actively open
       or visible on the device, that prompts the account holder to repeatedly check and engage
       with the social media service.
   (11) "Resident" means the same as that term is defined in Section 53-3-102.
   (12) "Social media company" means an entity that owns or operates a social media service.
   (13) (a) "Social media service" means a public website or application that:
            (i) displays content that is primarily generated by account holders and not by the
                social media company;
            (ii) permits an individual to register as an account holder and create a profile that is
                made visible to the general public or a set of other users defined by the account
                holder;
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      Enrolled Copy                                                                                   H.B. 464
          (iii) connects account holders to allow users to interact socially with each other
                within the website or application;
          (iv) makes available to each account holder a list or lists of other account holders
                with whom the account holder shares a connection within the system; and
          (v) allows account holders to post content viewable by other users.
      (b) "Social media service" does not include:
          (i) email;
          (ii) cloud storage; or
          (iii) document viewing, sharing, or collaboration services.
  (14) "User" means an individual who accesses or uses an algorithmically curated social
      media service.
  (15) (a) "Utah account holder" means a person who is a Utah resident and an account
      holder.
      (b) "Utah account holder" includes a Utah minor account holder.
  (16) "Utah minor account holder" means a Utah account holder who is a minor.
        Section 3. Section 78B-3-1102 is enacted to read:
        78B-3-1102 (Effective 10/01/24). Legislative findings.
    The Legislature finds that:
  (1) social media services utilize curation algorithms and engagement driven design
      elements to maximize user engagement;
  (2) minors are particularly vulnerable to manipulation by the use of curation algorithms and
      engagement driven design elements;
  (3) a minor's excessive use of an algorithmically curated social media service is likely to
      cause adverse mental health outcomes in minors, regardless of the content being viewed;
  (4) the risk of an adverse mental health outcome resulting from the excessive use of an
      algorithmically curated social media service increases when a minor uses the service for
      more than three hours per day, or during regular sleeping hours;
  (5) algorithmically curated social media services are designed without sufficient tools to
      allow adequate parental oversight, exposing minors to risks that could be mitigated with
      additional parental control;
  (6) protecting minors from the risks associated with the use of algorithmically curated
      social media services requires intervention at a societal level, informed by expertise in
      technology, psychology, and youth mental health;
  (7) the state has a long-established role and responsibility in implementing protections and
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      H.B. 464                                                                                 Enrolled Copy
       regulations to safeguard the health and welfare of minors;
   (8) the state has enacted safeguards around products and activities that pose risks to minors,
       including regulations on motor vehicles, medications, and products and services targeted
       to children;
   (9) any adverse mental health outcomes for minors that are linked to the excessive use of
       algorithmically curated social media services are a serious public health concern for the
       state; and
   (10) the state has a compelling interest to protect minors in the state against adverse mental
       health outcomes.
         Section 4. Section 78B-3-1103 is enacted to read:
         78B-3-1103 (Effect