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23LSO-0529
2023
STATE OF WYOMING
23LSO-0529
Numbered
2.0
HOUSE BILL NO. HB0274
Internet freedom-prohibiting discrimination.
Sponsored by: Representative(s) Hornok, Davis, Heiner, Locke, Ottman and Rodriguez-Williams and Senator(s) French, Hutchings, McKeown and Steinmetz
A BILL
for
AN ACT relating to trade and commerce; prohibiting discrimination based on viewpoint, race, religion and location by interactive computer services, social media platforms and businesses as specified; providing legislative findings; specifying a breach of fiduciary duty for release or loss of private information; defining terms related to the prohibitions on discrimination; providing remedies for violations as specified; specifying applicability of prohibitions; specifying severability; and providing for an effective date.
Be It Enacted by the Legislature of the State of Wyoming:
Section 1.
(a)
The legislature finds that:
(i)
Interactive computer services and companies are similar to common carriers, are affected with a public interest, are central public forums for public debate and have enjoyed governmental support in the United States;
(ii)
Interactive computer services and companies may owe a fiduciary duty to their users;
(iii)
Interactive computer services and companies appear to be increasingly censoring expression on their services and platforms based on the point of view of the person making the expression;
(iv)
In Hudgens v. NLRB, 424 U.S. 507 (1976), the United States Supreme Court has recognized that statutory or common law may, in some situations, extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others;
(v)
The laws of the several states and of the United States already protect against obscene, violent, harassing and other dangerous expression.
Section 2.
W.S. 40
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12
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801 through 40
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12
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805 are created to read:
ARTICLE 8
DISCRIMINATION BY INTERACTIVE COMPUTER SERVICES
AND SOCIAL MEDIA PLATFORMS
40
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12
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801.
Definitions.
(a)
As used in this article:
(i)
"Censor" means to block, ban, remove, deplatform, demonetize, de
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boost, restrict, deny equal access or visibility to or otherwise discriminate against a person;
(ii)
"Expression" means any words, music, sounds, still or moving images, numbers, video or perceivable communication;
(iii)
"Free speech state" means any state or territory of the United States or the federal government that protects expression from censorship by interactive computer services based on the viewpoint, race or religion of a person or of a person's expression;
(iv)
"Identifiable private information" means private information that may reasonably be expected to be associated with a user or could reasonably be associated with a user;
(v)
"Interactive computer service" means any information service, system or access software provider that provides or enables computer access by multiple users to a computer server. "Interactive computer service" includes networks, websites and a service or system that provides access to the internet including systems operated or services offered by libraries or educational institutions. "Interactive computer service" does not include an internet service provider;
(vi)
"Internet service provider" means any entity that provides internet access services and that may also provide associated internet services, such as internet transport, encryption, account security services, email hosting services, web hosting services, domain services, data storage services, intranet services and cloud
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based solutions;
(vii)
"Private information" means information acquired by an interactive computer service or social media platform from any user who has not expressly given prior authorization for the release or disclosure of the information, including its specific content, form or recipient of the information;
(viii)
"Receive" means to read, hear, look at, gain access to or otherwise receive;
(ix)
"Share" means to speak, sing, publish, post, upload, transmit, communicate or otherwise share;
(x)
"Social media platform" means any information service, system or access software that provides or enables computer access by multiple users to a computer server and that allows a user to publish or share expression with other persons. "Social media platform" does not include an internet service provider;
(xi)
"Unlawful expression" means expression that is unlawful under federal or state law;
(xii)
"User" means a person who shares or receives expression through an interactive computer service.
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802.
Interactive computer services; discrimination prohibited; applicability.
(a)
No interactive computer service shall censor a user, a user's expression, a user's sharing or ability to share an expression or a user's receiving of expression from another person based on:
(i)
The race, religion or viewpoint of any user or other person; or
(ii)
The viewpoint presented in any user's or other person's expression.
(b)
No interactive computer service shall censor a user, a user's expression, a user's sharing or ability to share an expression or a user's receiving of expression based on the user's residing, doing business, sharing expression or receiving expression in this state.
(c)
The prohibitions of subsections (a) and (b) of this section shall apply:
(i)
Whether the viewpoint is expressed on an interactive computer service or elsewhere;
(ii)
Only to an interactive computer service that:
(A)
Functionally has more than twenty million (20,000,000) active users within any thirty (30) day period;
(B)
Functionally has more than one hundred fifty million (150,000,000) active users within one (1) calendar month.
(iii)
Only to protect:
(A)
A user residing, doing business, sharing expression or receiving expression in this state;
(B)
Expression, sharing expression or receiving expression to the extent the expression, sharing or receiving occurs in this state;
(C)
Expression, sharing expression or receiving expression to the extent the expression is shared with or received from any other free speech state; and
(D)
Expression, sharing expression or receiving expression to the extent the expression is shared with, or received from, any other state or territory of the United States that is not a free speech state.
(d)
This article shall not be construed to:
(i)
Subject an interactive computer service to any action or require a remedy from an interactive computer service for which the interactive computer service is protected under state or federal law;
(ii)
Prohibit an interactive computer service from censoring any expression that it is specifically authorized to censor under the laws of Wyoming or of the United States;
(iii)
Prohibit an interactive computer service from censoring an unlawful expression.
(e)
This chapter shall not apply to an interactive computer service that:
(i)
Has been available to users for not more than twelve (12) months; or
(ii)
Is engaged primarily in its own expression and that allows users to comment on its expression, provided that the commentary or ability to comment is merely incidental to the expression.
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12
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803.
Interactive computer services; remedies; procedures; fiduciary requirements.
(a)
Any user residing, doing business, sharing expression or receiving expression in this state may bring a civil action in any court of this state against any interactive computer service for a violation of this article by an interactive computer service against the user. The user may seek, and the court may grant, declaratory or injunctive relief. The court shall award to any user prevailing in an action under this section treble damages or, at the user's election, fifty thousand dollars ($50,000.00). The court shall also award costs and reasonable attorney fees to any prevailing user.
(b)
Any user residing, doing business, sharing expression or receiving expression in this state may bring a civil action in any court of this state against any person who aids or abets a violation of this article by an interactive computer service against that user. The user may seek, and the court may grant, declaratory or injunctive relief. The court shall award to any user prevailing in an action under this section treble damages or, at the user's election, fifty thousand dollars ($50,000.00). The court shall also award costs and reasonable attorney fees to any prevailing user.
(c)
Notwithstanding any other provision of law, the courts of Wyoming may exercise personal jurisdiction over any interactive computer service subject to an action initiated under this section or any person alleged to have aided or abetted a violation of this article to the maximum extent permitted by the United States constitution and Wyoming constitution.
(d)
Notwithstanding any other provision of law, any user initiating a civil action pursuant to this section shall have the right to a jury trial.
(e)
The court may hold an interactive computer service or a person in contempt if the interactive computer service or person fails to promptly comply with any order issued under this section. The court may use all lawful measures to secure immediate compliance, including daily penalties sufficient to secure immediate compliance.
(f)
Any loss, release or distribution by an interactive computer service of personally identifiable information or private information that has been collected by the interactive computer service and not released or distributed by the user or for which the user has not consented to the release shall be deemed a breach of fiduciary duty and shall be subject to any remedy or recovery authorized by law. For any intentional or reckless loss, release or distribution by an interactive computer service of identifiable private information, the court shall award to a person whose information is lost, released or distributed as damages treble damages or one million dollars ($1,000,000.00), whichever is greater.
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804.
Social media platforms; discrimination prohibited; applicability.
(a)
No social media platform shall censor a user, a user's expression, a user's sharing or ability to share an expression or a user's receiving of expression from another person based on:
(i)
The race, religion or viewpoint of any user or other person; or
(ii)
The viewpoint presented in any user's or other person's expression.
(b)
No social media platform shall censor a user, a user's expression, a user's sharing or ability to share an expression or a user's receiving of expression based on the user's residing, doing business, sharing expression or receiving expression in this state.
(c)
The prohibitions of subsections (a) and (b) of this section shall apply:
(i)
Whether the viewpoint is expressed on an interactive computer service or elsewhere;
(ii)
Only to a social media platform that:
(A)
Functionally has more than twenty million (20,000,000) active users within any thirty (30) day period;
(B)
Functionally has more than one hundred fifty million (150,000,000) active users within one (1) calendar month.
(iii)
Only to protect:
(A)
A user residing, doing business, sharing expression or receiving expression in this state;
(B)
Expression, sharing expression or receiving expression to the extent the expression, sharing or receiving occurs in this state;
(C)
Expression, sharing expression or receiving expression to the extent the expression is shared with or received from any other free speech state; and
(D)
Expression, sharing expression or receiving expression to the extent the expression is shared with, or received from, any other state or territory of the United States.
(d)
This article shall not be construed to:
(i)
Subject a social media platform to any action or require a remedy from a social media platform for which the social media platform is protected under the laws of Wyoming or of the United States;
(ii)
Prohibit a social media platform from censoring any expression that it is specifically authorized to censor under the laws of Wyoming or of the United States;
(iii)
Prohibit a social media platform from censoring an unlawful expression.
(e)
This chapter shall not apply to a social media platform that:
(i)
Has been available to users for not more than twelve (12) months; or
(ii)
Is engaged primarily in its own expression and that allows users to comment on its expression, provided that the commentary or ability to comment is merely incidental to the expression.
40
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12
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805.
Social medial platforms; remedies; procedures; fiduciary requirements.
(a)
Any user residing, doing business, sharing expression or receiving expression in this state may bring a civil action in any court of this state against any social media platform for a violation of this article by a social media platform against the user. The user may seek, and the court may grant, declaratory or injunctive relief. The court shall award to any user prevailing in an action under this section treble damages or, at the user's election, fifty thousand dollars ($50,000.00). The court shall also award costs and reasonable attorney fees to any prevailing user.
(b)
Any user residing, doing business, sharing expression or receiving expression in this state may bring a civil action in any court of this state against any person who aids or abets a violation of this article by any social media platform against that user. The user may seek, and the court may grant, declaratory or injunctive relief. The court shall award to any user prevailing in an action under this section treble damages or, at the user's election, fifty thousand dollars ($50,000.00). The court shall also award costs and reasonable attorney fees to any prevailing user.
(c)
Notwithstanding any other provision of law, the courts of Wyoming may exercise personal jurisdiction over any social media platform subject to an action initiated under this section or any person alleged to have aided or abetted a violation of this article to the maximum extent permitted by the United States constitution and Wyoming constitution.
(d)
Notwithstanding any other provision of law, any user initiating a civil action pursuant to this section shall have the right to a jury trial.
(e)
The court may hold a social media platform or a person in contempt if the social media platform or person fails to promptly comply with any order issued under this section. The court may use all lawful measures to secure immediate compliance, including daily penalties sufficient to secure immediate compliance.
(f)
Any loss, release or distribution by a social media platform of identifiable private information that has been collected by the interactive computer service and has not been released or distributed by the user or for which the user has not consented to the release shall be deemed a breach of fiduciary duty and shall be subject to any remedy or recovery authorized by law. For any intentional or reckless loss, release or distribution by a social media platform of identifiable private information, the court shall award to a person whose information is lost, released or distributed as damages, treble damages or one million dollars ($1,000,000.00), whichever is greater.
Section 3.
If any clause, sentence or provision of this act or its application is held invalid, the invalidity shall not affect other clauses, sentences or provisions or applications of this act that can be given effect without the invalid clause, sentence or provision or application and to the end that the clauses, sentences and provisions of this act are severable. It is the intent of the legislature that the clauses, sentences and provisions of this section be liberally construed to the maximum possible extent.
Section 4.
The provisions of this act shall apply to actions that may be deemed violations of W.S. 40
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12
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802 or 40
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12
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804, as created by section 2 of this act, that occur on or after the effective date of this act.
Section 5
.
This act is effective July 1, 2023
.
(END)
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HB0274