SB1432

SECTION 1. The legislature finds that social media platforms represent an extraordinary advance in communication technology for the people of Hawaii, and that the people of Hawaii are increasingly reliant on social media platforms to express their opinions. It is commonplace for users of social media platforms to want control over their personal information related to their social media accounts.

The legislature also finds that social media platforms have transformed into the new public town square. Where free speech and the exchange of ideas used to occur in the physical realm, more and more often we see the important conversations of consequence taking place in the virtual realm. Before people physically talk about ideas, they read about them first on forums like Facebook, Twitter, Instagram, Reddit, and many other video sharing sites like YouTube, TikTok, Rumble, and many others like them. Social media platforms have become as important for conveying public opinion as public utilities are for supporting modern society. Social media platforms hold a unique place in preserving first amendment protections for all residents of Hawaii, and should be treated similarly to common carriers.

Social media platforms that unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Hawaii candidates, Hawaii users, and Hawaii residents are not acting in good faith. Hawaii has a substantial interest in protecting its residents from inconsistent and unfair actions by social media platforms, and Hawaii must vigorously enforce state law to protect its residents.

The purpose of this Act is to prohibit social media and other companies from censoring information posted on their platforms.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

ANTI-BIG-TECH CENSORSHIP ACT

PART I. GENERAL PROVISIONS

§ -1 Definitions. As used in this chapter, unless the context indicates otherwise:

"Candidate" has the same meaning as in section 11-302.

"Deplatform" means the action or practice by a social media platform to permanently delete or ban a user or to temporarily delete or ban a user from the social media platform for more than fourteen days.

"Social media platform" means any information service, system, internet search engine, or access software provider that:

(1) Provides or enables computer access by multiple users to a computer server, including an internet platform or social media site;

(2) Operates as a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity;

(3) Does business in the State; and

(4) Satisfies at least one of the following thresholds:

(A) Has annual gross revenues in excess of $100,000,000, as adjusted in January of each odd‑numbered year to reflect any increase in the consumer price index; and

(B) Has at least one hundred million monthly individual platform participants globally.

"User" means a person who resides or is domiciled in this State and who has an account on a social media platform, regardless of whether the person posts or has posted content or material to the social media platform.

§ -2 Social media deplatforming of political candidates. (a) A social media platform shall not wilfully deplatform a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate. A social media platform shall provide each user a method by which the user may be identified as a qualified candidate and that provides sufficient information to allow the social media platform to confirm the user's qualification by reviewing the website of the office of elections or the website of the local supervisor of elections.

(b) Upon a finding of a violation of subsection (a) by the Hawaii state ethics commission, the social media platform may be fined $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices.

(c) A social media platform that wilfully provides free advertising for a candidate shall inform the candidate of the in-kind contribution; provided that posts, content, material, and comments by candidates that are shown on the platform in the same or similar way as other users' posts, content, material, and comments are not considered free advertising.

(d) This section shall only be enforced to the extent not inconsistent with federal law and title 42 United States Code section 230(e)(3), and notwithstanding any other provision of state law.

§ -3 Unlawful acts and practices by social media platforms. (a) As used in this section:

"Algorithm" means a mathematical set of rules that specifies how a group of data behaves and that will assist in ranking search results and maintaining order or that is used in sorting or ranking content or material based on relevancy or other factors instead of using published time or chronological order of such content or material.

"Censor" includes any section taken by a social media platform to delete, regulate, restrict, edit, alter, inhibit the publication or republication of, suspend a right to post, remove, or post an addendum to any content or material posted by a user. The term also includes actions to inhibit the ability of a user to be viewable by or to interact with another user of the social media platform.

"Journalistic enterprise" means any entity doing business in Hawaii that:

(1) Publishes in excess of one hundred thousand words available online, with at least fifty thousand paid subscribers, or one hundred thousand monthly active users;

(2) Publishes one hundred hours of audio or video available online with at least one hundred million viewers annually;

(3) Operates a cable channel that provides more than forty hours of content per week to more than one hundred thousand cable television subscribers; or

(4) Operates under a broadcast license issued by the Federal Communications Commission.

"Post-prioritization" means action by a social media platform to place, feature, or prioritize certain content or material ahead of, below, or in a more or less prominent position that others in a newsfeed, a feed, a view, or in search results. The term does not include post-prioritization of content and material of a third party, including other users, based on payments by that third party, to the social media platform.

"Shadow ban" means action by a social media platform, through any means, whether the action is determined by a natural person or an algorithm, to limit or eliminate the exposure of a user or content or material posted by a user or other users of the social media platform. This term includes acts of shadow banning by a social media platform that are not readily apparent to a user.

(b) A social media platform that fails to comply with any of the provisions of this section commits an unfair or deceptive act that:

(1) A social media platform shall publish the standards, including detailed definitions, it uses or has used for determining how to censor, deplatform, and shadow ban;

(2) A social media platform shall apply censorship, deplatforming, and shadow banning standards in a consistent manner among its suers on the platform;

(3) A social media platform shall inform each user about any changes to its rules, terms, and agreements before implementing the changes and shall not make changes more than once every thirty days;

(4) A social media platform shall not censor or shadow ban a user's content or material or deplatform a user from the social media platform:

(A) Without notifying the user who posted or attempted to post the content or material; or

(B) In a way that violates this section;

(5) A social media platform shall:

(A) Provide a mechanism that allows a user to request the number of other individual platform participants who were provided or shown the user's content or posts; and

(B) Provide, upon request, a user with the number of other individual platform participants who were provided or shown content or posts;

(6) A social media platform shall:

(A) Categorize algorithms used for post‑prioritization and shadow banning; and

(B) Allow a user to opt out of post-prioritization and shadow banning algorithm categories to allow sequential or chronological post and content;

(7) A social media platform shall provide users with an annual notice on the use of algorithms for post‑prioritization and shadow banning and reoffer annually the opt-out opportunity in subparagraph (b)(6)(B);

(8) A social media platform shall not apply or use post‑prioritization or shadow banning algorithms for content and material posted by or about a user who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate. Post-prioritization of certain content or material from or about a candidate for office based on payments to the social media platform by a candidate for office or a third party is not a violation of this paragraph. A social media platform shall provide each user a method by which the user may be identified as a qualified candidate and that provides sufficient information to allow the social media platform to confirm the user's qualification by reviewing the website of the office of elections or the website of the local supervisor of elections;

(9) A social media platform shall allow a user who has been deplatformed to access or retrieve all of the user's information, content, material, and data for at least sixty days after the user receives the notice required; and

(10) A social media platform shall not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast. Post‑prioritization of certain journalistic enterprise content based on payments to the social media platform by a journalistic enterprise is not a violation of this paragraph.

(1) Be in writing;

(2) Be delivered via electronic mail or direct electronic notification to the user within seven days after the censoring action;

(3) Include a thorough rationale explaining the reason that the social media platform censored the user; and

(4) Include a precise and thorough explanation of how the social media platform became aware of the censored content or material, including a thorough explanation of the algorithms used, if any, to identify or flag the user's content or material as objectionable.

(d) Notwithstanding any other provisions of this section, a social media platform is not required to notify a user if the censored content or material is obscene.

(e) If the department, by its own inquiry or as a result of a complaint, suspects that a violation of this section is imminent, occurring, or has occurred, the department may investigate the suspected violation in accordance with this chapter. Based on the investigation, the department may bring a civil or administrative action under this chapter.

(f) A user shall only bring a private cause of action for violations of subsection (b)(2) or (b)(4)(A). In a private cause of action brought under subsection (b)(2) or (b)(4)(A), the court may award the user:

(1) Up to $100,000 in statutory damages per proven claim;

(2) Actual damages;

(3) If aggravating factors are present, punitive damages;

(4) Other forms of equitable relief, including injunctive relief; or

(5) If the user was deplatformed in violation of (b)(2), costs and reasonable attorney's fees.

(g) For purposes of bringing an action in accordance with subsections (e) and (f), each failure to comply with the individual provisions of subsection (b) shall be treated as a separate violation, act, or practice. For purposes of bringing an action in accordance with section (e) and (f), a social media platform that censors, shadow bans, deplatforms, or applies post‑prioritization algorithms to candidates and users in the state is conclusively presumed to be both engaged in substantial and not isolated activities within the state and operating, conducting, engaging in, or carrying on a business, and doing business in this State, and is therefore subject to the jurisdiction of the courts of the State.

(h) In an investigation by the department into alleged violations of this section, the department's investigative powers include, but are not limited to, the ability to subpoena any algorithm used by a social media platform related to any alleged violation.

(i) This section shall only be enforced to the extent not inconsistent with federal law and title 47 United States Code section 230(e)(3), and notwithstanding any other provision of state law."

SECTION 3. Chapter 480, Hawaii Revised Statutes, is amended by adding five new definitions to be appropriately inserted and to read as follows:

""Affiliate" means:

(1) A predecessor or successor of a person convicted or held civilly liable for an antitrust violation; or

(2) An entity under the control of any natural person who is active in the management of the entity that has been convicted of or held civilly liable for an antitrust violation.

The term includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm's length agreement, is a prima facie case that one person controls another person.

The term also includes a person who knowingly enters into a joint venture with a person who has violated an antitrust law during the preceding thirty‑six months.

"Antitrust violation" means any failure to comply with a state or federal antitrust law as determined in a civil or criminal proceeding brought by the attorney general, a state attorney, a similar body or agency of another state, the federal trade commission, or the United States Department of Justice.

"Antitrust violator vendor list" means the list required to be kept by the department pursuant to §480- (e).

"Conviction or being held civilly liable" or "convicted or held civilly liable" means a criminal finding of responsibility or guilt or conviction, with or without an adjudication of guilt, being held civilly responsible or liable, or having a judgment levied for an antitrust violation in any federal or state trial court of record relating to charges brought by indictment, information, or complaint on or after July 1, 2023, as a result of jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere or other finding of responsibility or liability.

"Public entity" means the State and any of its departments or agencies."

SECTION 4. Chapter 480, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§480- Antitrust violations; denial or revocation of the right to transact between public entities; denial of economic benefits. (a) A person or an affiliate who has been placed on the antitrust violator vendor list following a conviction or being held civilly liable for an antitrust violation shall not submit a bid, proposal, or reply for any new contract to provide any goods or services to a public entity; shall not submit a bud, proposal, or reply for a new contract with a public entity for the construction or repair of a public building or public work; may not submit a bid, proposal, or reply on new leases of real property to a public entity; shall not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a new contract with a public entity; and shall not transact new business with a public entity.

(b) A public entity shall not accept a bid, proposal, or reply from, award a new contract to, or transact new business with any person or affiliate on the antitrust violator vendor list unless that person or affiliate has been removed from the list pursuant to subsection (e).

(c) This section does not apply to contracts that were awarded or business transaction that began before a person or an affiliate was placed on the antitrust violator vendor list or before July 1, 2023, whichever date occurs later.

(d) Beginning on July 1, 2023, all invitations to bid, requests for proposals, and invitations to negotiate, and any contract document shall contain a statement informing persons of the provisions of subsection (a).

(e) The department shall maintain an antitrust violator vendor list of the names and addresses of the persons or affiliates who have been disqualified from the public contracting and purchasing process under this section. The department shall electronically publish the initial antitrust violator vendor list on January 1, 2024, and shall update and electronically publish the list quarterly thereafter. Notwithstanding this subsection, a person or an affiliate disqualified from the public contracting and purchasing process pursuant to this section is disqualified as of the date the department enters the final order.

(f) After receiving notice of a judgment, sentence, or order from any source that a person was convicted or held civilly liable for an antitrust violation and after the department has investigated the information and verified both the judgment, sentence, or order and the identity of the person named in the documentation, the department shall immediately notify the person or affiliate in writing of its intent to place the name of that person or affiliate on the antitrust violator vendor list and of the person's or affiliate's right to a hearing, the procedure that must be followed, and the applicable time requirements. If the person or affiliate does not request a hearing, the department shall enter a final order placing the name of the person or affiliate on the antitrust violator vendor list. A person or affiliate shall be placed on the antitrust violator vendor list only after the department has provided the person or affiliate with a notice of intent.

(g) Within twenty-one days after receipt of the notice of intent, the person or affiliate may file a petition for a formal hearing to determine whether good cause has been shown by the department and whether it is in the public interest for the person to be placed on the antitrust violator vendor list. A person or an affiliate shall not file a petition for an informal hearing.

(h) In determining whether it is in the public interest to place a person or affiliate on the antitrust violator vendor list under this subsection, the following factors shall be considered:

(1) Whether the person or affiliate was convicted or held civilly liable for an antitrust violation;

(2) The nature and details of the antitrust violation;

(3) The degree of culpability of the person or affiliate proposed to be placed on the antitrust violator vendor list;

(4) Reinstatement or clemency in any jurisdiction in relation to the antitrust violation at issue in the proceeding;

(5) The needs of the public entities for additional competition in the procurement of goods and services in their respective markets; and

(6) The effect of the antitrust violations on residents of Hawaii.

(i) After the person or affiliate requests a formal hearing, the department shall have the burden to prove that it is in the public interest for the person or affiliate to whom it has given notice under this section to be placed on the antitrust violator vendor list. Proof that a person was convicted or was held civilly liable or that an entity is an affiliate of the person constitutes a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the antitrust violator vendor list. Status as an affiliate shall be proven by clear and convincing evidence.

(j) Any person or affiliate who has been notified by the department of its intent to place the person's or affiliate's name on the antitrust violator vendor list may offer evidence on any relevant issue. An affidavit alone does not constitute competent substantial evidence that the person has not been convicted or is not an affiliate of a person convicted or held civilly liable. Upon establishment of a prima facie case that it is in the public interest for the person or affiliate to whom the department has given notice to be put on the antitrust violator vendor list, the person or affiliate may prove by a preponderance of the evidence that it would not be in the public interest to put the person or affiliate on the antitrust violator vendor list, based on evidence addressing the factors in subsection (h).

(k) Upon receipt of an information or indictment from any source that a person has been charged with or accused of violating any state or federal antitrust law in a civil or criminal proceeding, including a civil investigative demand, brought by the attorney general, a state attorney, the federal trade commission, or the United States Department of Justice on or after July 1, 2023, the attorney general shall determine whether there is probable cause that a person has likely violated the underlying antitrust laws, which justifies temporary placement of the person on the antitrust violator vendor list until the proceeding has concluded.

(l) If the attorney general determines probable cause exists, the attorney general shall notify the person in writing of its intent to temporarily place the name of that person on the antitrust violator vendor list, and of the person's right to a hearing, the procedure to be followed, and the appliable time requirements. If the person does not request a hearing, the attorney general shall enter a final order temporarily placing the name of the person on the antitrust violator vendor list. A person may be placed on the antitrust violator vendor list only after being provided with a notice of intent from the attorney general.

(m) Within twenty-one days after receipt of the notice of intent, the person may file a petition for a formal hearing to determine whether it is in the public interest for the person to be temporarily placed on the antitrust violator vendor list. A person shall not file a petition for an informal hearing.

(n) In determining whether it is in the public interest to place a person on the antitrust violator vendor list under this section, the following factors shall be considered:

(1) The likelihood the person will be convicted or held civilly liable for the antitrust violation;

(2) The nature and details of the antitrust violation;

(3) The degree of culpability of the person proposed to be placed on the antitrust violator vendor list;

(4) The needs of the public entities for additional competition in the procurement of goods and services in their respective markets; and

(5) The effect of the antitrust violations on residents of Hawaii.

(o) The attorney general has the burden to prove that it is in the public interest for the person to whom it has given notice under this section to be temporarily placed on the antitrust violator vendor list.

(p) This section does not apply to affiliates.

(q) A person or an affiliate may be removed from the antitrust violator vendor list subject to terms and conditions as may be prescribed upon a determination that removal is in the public interest. Upon proof that a person was found not guilty or not civilly liable, the antitrust violation case was dismissed, the court entered a finding in the person's favor, the person's conviction or determination of liability has been reversed on appeal, or the person has been pardoned, it shall be determined that the removal of the person or affiliate of that person from the antitrust violator vendor list is in the public interest. A person or an affiliate on the antitrust violator vendor list may petition for removal from the list no sooner than six months after the date a final order is entered pursuant to this section but may petition for removal at any time if the petition is based upon a reversal of the conviction or liability on appellate review or pardon. The petition shall be filed with the department, and the proceeding shall be conducted pursuant to the procedures and requirements of this section.

(r) If the petition for removal is denied, the person or affiliate shall not petition for another hearing on removal for a period of nine months after the date of denial unless the petition is based upon a reversal of the conviction on appellate review or a pardon. The department may petition for removal before the expiration of the time period if, in its discretion, it determines that removal is in the public interest.

(s) The conviction of a person or person being held civilly liable for an antitrust violation, or placement on the antitrust violator vendor list, does not affect any rights or obligations under any contract, franchise, or other binding agreement that predates the conviction, finding of civil liability, or placement on the antitrust violator vendor list.

(t) A person who has been placed on the antitrust violator vendor list is not a qualified applicant for economic incentives, and the person shall not be qualified to receive any economic incentives. This subsection does not apply to economic incentives that are awarded before a person is placed on the antitrust violator vendor list on or before July 1, 2023.

(u) This section does not apply to:

(1) Any activity regulated by the public utilities commission;

(2) The purchase of goods or services made by any public entity from the department of corrections or from any qualified nonprofit agency for the blind or other severely handicapped persons; or

(3) Any contract with a public entity to provide any goods or services for emergency response efforts related to a state of emergency declaration issued by the governor.

(v) This section shall only be enforced to the extent not inconsistent with federal law and notwithstanding any other provision of state law."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 7. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

TH1432E SENATE	S.B. NO.
THIRTY-SECOND LEGISLATURE, 2023
STATE OF HAWAII