2023 - 2024 LEGISLATURE
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2023 SENATE BILL 385
August 9, 2023 - Introduced by Senators COWLES and CABRAL-GUEVARA,
cosponsored by Representatives STEFFEN, ARMSTRONG, GUNDRUM, MAXEY,
MURPHY, ROZAR, SCHMIDT, STUBBS, TITTL, TUSLER and WICHGERS. Referred to
Committee on Mental Health, Substance Abuse Prevention, Children and
Families.
1 AN ACT to create 100.75 of the statutes; relating to: use of social media
2 platforms by minors, granting rule-making authority, and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill creates requirements related to social media companies' and social
media platforms' treatment of account holders on the basis of age.
Under the bill, social media companies must ensure that all accounts created
on or after January 1, 2019, are designated as a youth accounts that comply with the
youth account requirements of the bill. A social media company may remove the
youth account designation from an account if 1) the social media company estimates
that the account holder is not a minor through employment of a process or program
that provides a 95 percent accuracy rate of estimating age within 24 months of actual
age; 2) the social media company verifies that the account holder is not a minor; or
3) a parent or guardian of a minor account holder requests for the youth account
designation to be removed from the minor's account.
Under the bill, a social media company shall do all of the following in regards
to a youth account: 1) prevent direct messaging between the account holder and
other account holders or users with whom the youth account holder is not connected;
2) refrain from showing information about the youth account to any person not
connected to the youth account holder; 3) prevent advertising from being shown to
the youth account holder; 4) refrain from collecting or using personal information
from the youth account; 5) refrain from the use of targeted or suggested groups or
content on the youth account; and 6) ensure that the youth account cannot be used
between the hours of 10 p.m. and 7 a.m.
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SENATE BILL 385
The bill also provides to parents of minor account holders certain access,
including full access to the account and all its posts and messages, the ability to
change the time limits on the account, and to opt out the minor's account from the
youth account designation.
A violation of the requirements of the bill may result in the social media
platform being required to forfeit $100 per violation per day, an award of damages
to an injured account holder, and an injunction preventing further violations.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
1 SECTION 1. 100.75 of the statutes is created to read:
2 100.75 Social media company requirements. (1) DEFINITIONS. In this
3 section:
4 (a) “Account” means a social media platform account or profile.
5 (b) “Account holder” means a person who has, or opens, an account.
6 (c) “Educational entity” means any of the following:
7 1. A public school, as defined in s. 115.01 (1).
8 2. A charter school, as defined in s. 115.001 (1).
9 3. A tribal school, as defined in s. 115.001 (15m).
10 4. A private school participating in a program in s. 118.60 or 119.23.
11 5. The Wisconsin Center for the Blind and Visually Impaired.
12 6. The Wisconsin Educational Services Program for the Deaf and Hard of
13 Hearing.
14 7. A school of a parochial or denominational character that offers a course with
15 a sectarian objective.
16 8. A technical college under the authority of a district board, as defined in s.
17 38.01 (6).
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1 9. A college campus, as defined in s. 36.05 (6m).
2 10. An institution, as defined in s. 36.05 (9).
3 11. A tribally controlled college located in this state.
4 12. A private, nonprofit postsecondary institution that is a member of the
5 Wisconsin Association of Independent Colleges and Universities.
6 (d) “Interactive computer service” means an information service, an
7 information system, or information access software that provides access to the
8 Internet or provides or enables computer access by multiple users to a computer
9 server. “Interactive computer service” includes a web service, a web system, a
10 website, a web application, and a web portal. “Interactive computer service” does not
11 include an Internet service provider.
12 (e) “Minor” means a resident under the age of 18. “Minor” does not include an
13 emancipated minor, as defined in s. 48.375 (2) (e).
14 (f) “Post” means content that an account holder or user makes available on a
15 social media platform for other account holders or users to view.
16 (g) “Resident” means an individual who resides in this state.
17 (h) “Social media company” means an interactive computer service that makes
18 available a social media platform that has 5,000,000 or more account holders.
19 (i) 1. “Social media platform” means an online forum that a social media
20 company makes publicly available and for which the primary purpose of is enabling
21 an account holder to open a profile, upload a post, view a post of another account
22 holder, or interact with other account holders or users.
23 2. Notwithstanding subd. 1., “social media platform” does not include an online
24 service, website, or application for which the predominant or exclusive function is
25 any of the following:
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1 a. Electronic mail.
2 b. The direct messaging of text, photo, or video messages that are sent between
3 devices by electronic means, in which the messages shared between the sender and
4 the recipient are visible only to the sender and the recipient and are not posted
5 publicly.
6 c. A streaming service that provides only licensed media in a continuous flow
7 from itself to the end user and that does not obtain a license to the media from an
8 account holder or user by agreement to its terms of service.
9 d. News, sports, entertainment, or other content that is preselected by a social
10 media platform that is not user-generated, on which any provided chat, comment,
11 or other interactive functionality is incidental to, directly related to, or dependent
12 upon the provision of the content.
13 e. A community forum, the primary purpose of which is for customer
14 self-service support related to products, sellers, services, events, or places, or any
15 combination thereof.
16 f. Online shopping or e-commerce if an account holder's or user's interaction
17 with other account holders or users is generally limited to the ability to upload a post
18 or comment on reviews, the ability to display lists or collections of goods for sale, and
19 other functions that are focused on online shopping or e-commerce rather than on
20 interaction between account holders or users.
21 g. Interactive gaming, virtual gaming, or an online service that allows the
22 creating and uploading of content for the purpose of interactive gaming, educational
23 entertainment, or entertainment associated with interactive gaming or educational
24 entertainment, and the communication related to that content.
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1 h. A professional creative network for showcasing and discovering artistic
2 content if the content is required to be non-pornographic.
3 i. Single-purpose community groups for public safety if interaction between
4 account holders or users is generally limited to the single purpose and the
5 community has guidelines or policies against illegal content.
6 j. Providing career development opportunities, including professional
7 networking, job skills, learning certificates, and job posting and application services.
8 k. Business-to-business software.
9 L. A teleconferencing or videoconferencing service that allows reception and
10 transmission of audio and video signals for real-time communication.
11 m. Cloud storage.
12 n. Shared document collaboration.
13 o. Cloud computing services.
14 p. Providing access to or interfacing with data visualization platforms,
15 libraries, or hubs.
16 q. Permitting comments on a digital news website if the news content is posted
17 only by the provider of the digital news website.
18 r. Providing or obtaining technical support for a platform, product, or service.
19 s. Academic or scholarly research.
20 t. Genealogical research.
21 u. Providing content to account holders or users if any ability of account holders
22 or users to chat, comment, or interact with other account holders or users is directly
23 related to the provider's content.
24 v. A classified ad service that permits only the sale of goods and prohibits the
25 solicitation of personal services.
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1 w. Use by and under the direction of an educational entity, including a learning
2 management system, a student engagement program, and a subject or skill-specific
3 program.
4 (j) “User” means a person who is not an account holder and who has access to
5 view or create a post on a social media platform.
6 (k) “Youth account” means an account on a social media platform for use by a
7 minor.
8 (2) AGE-BASED ACCOUNT REQUIREMENTS. (a) Except as provided in par. (b),
9 beginning on August 1, 2024, a social media company shall ensure that all accounts
10 created on or after January 1, 2019, are designated as youth accounts that comply
11 with the requirements under sub. (3).
12 (b) A social media company may remove a youth account designation from a
13 user's account and in turn be exempted from the corresponding requirements under
14 sub. (3) for the account if any of the following applies:
15 1. The social media company estimates that the account holder is not a minor
16 through employment of a process or program that provides a 95 percent accuracy rate
17 of estimating age within 24 months of actual age.
18 2. The social media company verifies that the account holder is not a minor.
19 3. A parent or guardian of a minor account holder requests that the social media
20 company remove the youth account designation from the minor's account as provided
21 under sub. (4) (f).
22 (3) YOUTH ACCOUNTS. A social media company shall do all of the following
23 regarding a youth account:
24 (a) Prevent direct messaging between the account holder and any other account
25 holder or user that is not linked to the account through friending or another process
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1 through which 2 persons add each other to a list of contacts associated with the
2 account holder.
3 (b) Refrain from showing the account or information about the account in
4 search results provided to any other account holder or user that is not linked to the
5 account through friending or another process through which 2 persons add each
6 other to a list of contacts associated with the account holder.
7 (c) Prevent advertising from being shown to the account holder.
8 (d) Refrain from collecting or using personal information from the account or
9 the account holder's posts, messages, text, usage activities, or entered information,
10 other than information that is necessary to comply with state or federal law.
11 (e) Refrain from the use of targeted or suggested groups, accounts, users,
12 services, posts, and products on the account.
13 (f) Subject to sub. (4) (c), ensure that the account cannot be used or accessed
14 between the hours of 10 p.m. and 7 a.m. The time of day under this paragraph shall
15 be calculated on the basis of the Internet protocol address being used by the account
16 at the time of attempted access. The social media company shall ensure that an
17 account holder does not change or bypass the time restrictions under this paragraph.
18 (4) PARENTAL ACCESS. A social media company shall provide to a parent or
19 guardian of a minor account holder a password or other means for the parent or
20 guardian to access the minor's account until the account holder is no longer a minor.
21 The parent or guardian access required under this subsection shall include all of the
22 following:
23 (a) Access to posts that the minor has made on the social media platform.
24 (b) Access to all messages and responses sent by or to the minor on the social
25 media platform.
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1 (c) The ability to change or eliminate the time restrictions required under sub.
2 (3) (c).
3 (d) The ability to set a limit of total time per day that the minor may use or
4 access the minor's youth account.
5 (e) The ability to access the minor's youth account without time restrictions.
6 (f) The ability to opt the minor's account out of the youth account designation
7 and the corresponding youth account requirements provided under sub. (3).
8 (5) PRIVACY. (a) A social media company and its agents may use and retain
9 information and data obtained under this section only for the purpose of complying
10 with this section and may not use that information or data for any other purpose.
11 (b) A social media company may not use or employ a person to process
12 estimation or verification requirements for the social media company unless the
13 person's principal place of business is located in the United States of America.
14 (6) WAIVER PROHIBITED. A social media company may not include a provision
15 in an agreement or contract, and a finder of fact or court may not enforce or give effect
16 to a provision in an agreement or contract, that waives, limits, or purports to waive
17 or limit any of the following:
18 (a) A protection or requirement of this section.
19 (b) The right of a person to cooperate with the department or to file a complaint
20 with the department.
21 (7) NOTICE AND ENFORCEMENT. (a) The department shall receive consumer
22 complaints alleging violations of this section, and shall investigate alleged violations
23 of this section. Subject to par. (b), the department, the department of justice in
24 consultation with the department, or a district attorney in consultation with the
25 department may bring an action for temporary or permanent injunctive or other
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1 relief for any violation of this section or an action for the penalties authorized in sub.
2 (8).
3 (b) 1. At least 30 days before the day on which an action against a social media
4 company is initiated under par. (a), the department, the department of justice in
5 consultation with the department, or a district attorney in consultation with the
6 department seeking to bring an action under par. (a) shall provide the social media
7 company with written notice that identifies each alleged violation of this section, and
8 an explanation of the basis for each allegation.
9 2. An action may not be initiated under par. (a) if, within 30 days after the day
10 on which the social media company was provided notice under subd. 1., the social
11 media company cures the violation of this section and the social media company
12 provides to the department a written statement that the violation has been cured and
13 that no further violation will occur.
14 3. Notwithstanding subd. 2., the department, the department of justice, or a
15 district attorney may initiate an action under par. (a) if