Bill Summary – FastDemocracy

Stricken language would be deleted from and underlined language would be added to present law.
 State of Arkansas              As Engrossed:        H3/10/21 H4/7/21
 93rd General Assembly                         A Bill
 Regular Session, 2021                                                              HOUSE BILL 1647
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 By: Representatives Evans, Barker, Beaty Jr., Beck, Bentley, M. Berry, Boyd, Brooks, Brown, Bryant,
 Carr, Cavenaugh, Christiansen, Cloud, Coleman, C. Cooper, Cozart, Crawford, M. Davis, L. Fite,
 Gonzales, Haak, Hillman, Hollowell, Ladyman, Lowery, Lundstrum, Lynch, Maddox, McCollum, McNair,
 S. Meeks, Penzo, Pilkington, Richmond, Rye, Slape, B. Smith, S. Smith, Speaks, Vaught, Wooten
 By: Senators Hill, B. Ballinger, Beckham, Caldwell, A. Clark, J. Dismang, J. English, Flippo, T. Garner,
 Gilmore, K. Hammer, Irvin, B. Johnson, M. Johnson, Rapert, Rice, G. Stubblefield, D. Sullivan, D.
 Wallace
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                                   For An Act To Be Entitled
                 AN ACT TO PROMOTE ARKANSAS VOICES; TO COMBAT CANCEL
                 CULTURE AND PROTECT FREEDOM OF SPEECH; TO ESTABLISH
                 THE ARKANSAS UNFAIR SOCIAL MEDIA CENSORSHIP ACT; TO
                 CLARIFY THAT CERTAIN ACTS OF CENSORSHIP ARE DECEPTIVE
                 TRADE PRACTICES; AND FOR OTHER PURPOSES.
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                                                Subtitle
                         TO PROMOTE ARKANSAS VOICES; AND TO COMBAT
                         CANCEL CULTURE AND PROTECT FREEDOM OF
                         SPEECH.
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 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
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         SECTION 1. DO NOT CODIFY.           Legislative findings and intent.
         (a)   The General Assembly finds that:
                 (1)     Technological advances have propelled internet and online
 services to become an essential means upon which individuals and businesses
 depend to communicate and conduct business within communities, regionally,
 nationally, and globally;
                 (2)     Technology companies that offer social media services have
 enjoyed extraordinary growth and profits from the dependence on their
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     As Engrossed:    H3/10/21 H4/7/21                                         HB1647
 internet services by individuals and businesses;
            (3)    Recently, national events have demonstrated that the
 absolute and unscrupulous power and motives held by global technology
 companies to control and silence any speech by individuals and businesses to
 which the technology companies may disagree has created a culture to cancel
 out the right of freedom of expression for all;
            (4)    The citizens of Arkansas have become painfully aware of how
 vulnerable they are to the whims of social media services to censor,
 restrict, or ban anyone who may express an idea, ideology, or any speech that
 is deemed not compatible to the opinions held by the global technology
 companies that provide these services; and
            (5)    Existing federal law does not adequately protect citizens
 from the autonomous power of censorship by technology companies.
      (b)   It is the intent of the General Assembly:
            (1)    To protect the citizens of this state from being unfairly
 targeted by technology companies for exercising their freedom of speech in an
 online social media platform;
            (2)    To protect the citizens of this state from being unfairly
 subjected to the unilateral judgments of technology companies to censor the
 free expression of ideas and speech;
            (3)    To protect the citizens of this state from becoming victims
 of cancel culture unfairly imposed on them by technology companies that do
 not act in good faith and act with bias to silence and cancel certain speech
 while permitting other speech;
            (4)    To rein in the absolute and unrestrained power exercised by
 technology companies to act with impunity to silence speech and the free
 expression of ideas with which they disagree;
            (5)    To define the meaning of good faith for any actions taken
 by technology companies under 47 U.S.C.  230, as it existed on January 1,
 2021, to censor, restrict, or ban speech by individuals or businesses on
 their services; and
            (6)    That this act is construed as broadly as possible to ensure
 that the citizens of this state are protected from the infringement and
 silencing of the freedom of speech guaranteed as a right in the First
 Amendment of the United States Constitution and to ensure that technology
 companies are held accountable for acting unfairly and without good faith to
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     As Engrossed:    H3/10/21 H4/7/21                                           HB1647
 favor certain speech over other speech.
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      SECTION 2.     Arkansas Code Title 4 is amended to add an additional
 chapter to read as follows:
                                     CHAPTER 119
                    ARKANSAS UNFAIR SOCIAL MEDIA CENSORSHIP ACT
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      4-119-101.     Title.
      This chapter shall be known and may be cited as the "Arkansas Unfair
 Social Media Censorship Act".
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      4-119-102.     Definitions.
      As used in this chapter:
            (1)    "Content banning" means to restrict, in whole or in part,
 covertly or overtly:
                     (A)   The ability of an information content provider to
 post, upload, or publish content; or
                     (B)   The visibility or distribution of content posted,
 uploaded, or published by an information content provider;
            (2)    "Demonetizing" means to exclude or restrict an information
 content provider from participating in advertisement revenue sharing
 arrangements of an interactive computer service;
            (3)    "Information content provider" means the same as defined in
 47 U.S.C.  230(f), as it existed on January 1, 2021;
            (4)(A)     "Interactive computer service" means the same as defined
 in 47 U.S.C.  230(f), as it existed on January 1, 2021.
                     (B)   "Interactive computer service" does not include
 internet service providers, email or any online service, application, or
 website consisting primarily of news, sports, entertainment, or other
 information or content that is not user-generated but is preselected or
 curated by the provider and for which any chat, comment, or interactive
 functionality is incidental to, directly related to, or dependent on the
 provision of the content;
            (5)    "Labeling" means the act of an interactive computer
 service's affixing a label or statement to content that is posted, uploaded,
 or published on the interactive computer service by an information content
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     As Engrossed:    H3/10/21 H4/7/21                                        HB1647
 provider; and
            (6)    "Obscene material" means the same as defined in  5-68-203.
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      4-119-103.     Personal jurisdiction  Advertisement revenue sharing 
 Interactive computer service.
      (a)   The posting, uploading, or publishing of content on an interactive
 computer service that generates revenues from advertising shall be deemed, as
 a matter of law, an activity occurring in business, commerce, or trade in
 connection with the advertisement, sale, purchase, or lease of goods,
 services, or charitable solicitations.
      (b)   As a matter of law, an interactive computer service is considered
 to have performed certain minimum contacts by purposefully availing itself of
 the privileges of conducting activity within this state for activity
 described in subsection (a) of this section, and that activity is sufficient
 to subject the interactive computer service to the personal jurisdiction of a
 court in this state to hear a civil action brought under this chapter.
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      4-119-104.     Interactive computer service  Good faith actions.
      (a)   An interactive computer service that takes any action under 47
 U.S.C.  230(c)(2)(A), as it existed on January 1, 2021, against an
 information content provider itself or against lawful content posted,
 uploaded, or published by an information content provider shall have engaged
 in an unlawful practice when such action is not taken in good faith.
      (b)   An interactive computer service fails to act in good faith if the
 action taken by the interactive computer service is:
            (1)    Dubious or pretextual;
            (2)    Inconsistent with the terms of service of the interactive
 computer service;
            (3)    Selectively applying the terms of service of the interactive
 computer service to restrict access to or availability of content that is
 similarly situated to content that the interactive computer service
 intentionally declines to restrict elsewhere; or
            (4)    For the purpose of:
                     (A)   Demonetizing;
                     (B)   Content banning;
                     (C)   Labeling content;
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     As Engrossed:       H3/10/21 H4/7/21                                          HB1647
                       (D)   Deleting or removing content; or
                       (E)   Restricting access to, or availability of, content.
      (c)(1)     An interactive computer service shall not assert that activity
 as described under this chapter that is taken by the interactive computer
 service is consistent with the terms of service unless the interactive
 computer service shows that the content was not permitted under the
 interactive computer service's plain and particular terms of service at the
 time that the content was posted.
               (2)    It shall not be a defense to a violation under this chapter
 for an interactive computer service to assert any term of service that is
 unconscionable, inequitable, or that purports in any manner that the
 interactive computer service may act unilaterally to take any action
 described under this chapter against content or an information content
 provider.
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      4-119-105.       Exceptions.
      This chapter does not apply to an interactive computer service taking
 an action described under this chapter against content it objectively and
 reasonably believes is patently:
               (1)    In furtherance of unlawful activity, including without
 limitation obscene material, material related to child sexual abuse, human
 trafficking, drug trafficking, or cyberstalking;
               (2)    Subject to final judgment of a United States federal or
 state court directing the removal of the content; or
               (3)    Promoting terrorism or violence.
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      4-119-106.       Violations  Unfair and deceptive act or practice.
      (a)(1)     A violation of this chapter is:
                       (A)   An unfair and deceptive act or practice, as defined by
 the Deceptive Trade Practices Act,  4-88-101 et seq.; and
                       (B)   Punishable solely by action of the Attorney General.
               (2)    All remedies, penalties, and authority granted to the
 Attorney General under the Deceptive Trade Practices Act,  4-88-101 et seq.,
 shall be available to the Attorney General for the enforcement of this
 chapter.
      (3)    The remedies and penalties for violations under this chapter are
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     As Engrossed:      H3/10/21 H4/7/21                                         HB1647
 cumulative and in addition to other procedures or remedies for violations or
 conduct under other law.
      (b)     It is an affirmative defense to a single occurrence of a violation
 of this chapter if within ten (10) days of receiving the first communication
 from the Attorney General of a violation of this chapter, the interactive
 computer service provides the Attorney General and the affected internet
 content provider with notice that the violation was a single occurrence and
 was cured.
      (c)     It is an affirmative defense to a violation of this chapter if an
 interactive computer service demonstrates through a preponderance of the
 evidence that:
              (1)    The interactive computer service described the relevant
 content moderation policies in plain and particular language in its terms of
 service that were conspicuously disclosed separately from other unrelated
 disclosures and made them available to the information content provider at
 the time of posting;
              (2)    The act or conduct alleged to be a violation of this chapter
 is objectively consistent with the terms of service of the interactive
 computer service; and
              (3)    The interactive computer service:
                      (A)   Provided the aggrieved information content provider an
 explanation in writing of the action taken under  4-119-104(a), including
 identifying the specific term of service that was violated; and
                      (B)   Provided the aggrieved information content provider
 with a timely, meaningful, and good faith opportunity to appeal the alleged
 bad faith decision related to content banning, labeling, or moderation.
                      (d)   An interactive computer service shall publish on a
 quarterly basis and in a conspicuous manner and location on its service the
 statistics of:
                             (1)   The number of posts and information content
 providers that are subject to an action described under  4-119-104(a);
                             (2)   The number of appeals filed under subdivision
 (c)(3)(B) of this section; and
                             (3)   The number of appeals granted.
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                                        /s/Evans
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