Florida Senate - 2021 (PROPOSED BILL) SPB 7072 FOR CONSIDERATION By the Committee on Governmental Oversight and Accountability 585-03666-21 20217072pb 1 A bill to be entitled 2 An act relating to social media platforms; creating s. 3 106.072, F.S.; defining terms; prohibiting a social 4 media platform from knowingly deplatforming a 5 candidate; providing fines for violations; authorizing 6 social media platforms to provide free advertising for 7 candidates under specified conditions; providing 8 enforcement authority consistent with federal and 9 state law; creating s. 287.137, F.S.; defining terms; 10 providing requirements for public contracts and 11 economic incentives related to entities that have been 12 convicted or held civilly liable for antitrust 13 violations; prohibiting a public entity from entering 14 into any type of contract with a person or an 15 affiliate on the antitrust violator vendor list; 16 providing applicability; requiring certain contract 17 documents to contain a specified statement; requiring 18 the Department of Management Services to maintain a 19 list of people or affiliates disqualified from the 20 public contracting and purchasing process; specifying 21 requirements for publishing such list; providing 22 procedures for placing a person or an affiliate on the 23 list; providing procedural and legal rights for a 24 person or affiliate to challenge placement on the 25 list; providing a procedure for temporarily placing a 26 person on an antitrust violator vendor list; providing 27 procedural and legal rights for a person to challenge 28 temporary placement on the list; specifying conditions 29 for removing certain entities and affiliates from the 30 list; authorizing a person, under specified 31 conditions, to retain rights or obligations under 32 existing contracts or binding agreements; prohibiting 33 a person who has been placed on the antitrust violator 34 vendor list from receiving certain economic 35 incentives; providing exceptions; providing 36 enforcement authority consistent with federal and 37 state law; creating s. 501.2041, F.S.; defining terms; 38 providing that social media platforms that fail to 39 comply with specified requirements and prohibitions 40 commit an unfair or deceptive act or practice; 41 requiring a notification given by a social media 42 platform for censoring content or deplatforming a user 43 to contain certain information; providing an exception 44 to the notification requirements; authorizing the 45 Department of Legal Affairs to investigate suspected 46 violations under the Deceptive and Unfair Trade 47 Practices Act and bring specified actions for such 48 violations; specifying circumstances under which a 49 private cause of action may be brought; specifying how 50 damages are to be calculated; providing construction 51 for violations of certain provisions of this act; 52 granting the department specified subpoena powers; 53 providing enforcement authority consistent with 54 federal and state law; amending s. 501.212, F.S.; 55 conforming a provision to changes made by the act; 56 providing for severability; providing an effective 57 date. 58 59 Be It Enacted by the Legislature of the State of Florida: 60 61 Section 1. Section 106.072, Florida Statutes, is created to 62 read: 63 106.072 Social media deplatforming of political 64 candidates.— 65 (1) As used in this section, the term: 66 (a) “Candidate” has the same meaning as in s. 67 106.011(3)(e). 68 (b) “Deplatform” has the same meaning as in s. 501.2041. 69 (c) “Social media platform” has the same meaning as in s. 70 501.2041. 71 (2) A social media platform may not knowingly deplatform a 72 candidate. Upon a finding of a violation of this section by the 73 Elections Commission, in addition to the remedies provided in 74 ss. 106.265 and 106.27, the social media platform may be fined 75 $100,000 per day for statewide candidates and $10,000 per day 76 for other candidates. 77 (3) A social media platform that knowingly provides free 78 advertising for a candidate must inform the candidate of such 79 in-kind contribution. Posts, content, material, and comments by 80 candidates which are shown on the platform in the same or 81 similar way as other users’ posts, content, material, and 82 comments are not considered free advertising. 83 (4) This section may only be enforced to the extent not 84 inconsistent with federal law and 47 U.S.C. s. 230(e)(3), and 85 notwithstanding any other provision of state law. 86 Section 2. Section 287.137, Florida Statutes, is created to 87 read: 88 287.137 Antitrust violations; denial or revocation of the 89 right to transact business with public entities; denial of 90 economic benefits.— 91 (1) As used in this section, the term: 92 (a) “Affiliate” means: 93 1. A predecessor or successor of a person convicted of or 94 held civilly liable for an antitrust violation; or 95 2. An entity under the control of any natural person who is 96 active in the management of the entity and who has been 97 convicted of or held civilly liable for an antitrust violation. 98 The term includes those officers, directors, executives, 99 partners, shareholders, employees, members, and agents who are 100 active in the management of an affiliate. The ownership by one 101 person of shares constituting a controlling interest in another 102 person, or a pooling of equipment or income among persons when 103 not for fair market value under an arm’s length agreement, is a 104 prima facie case that one person controls another person. The 105 term also includes a person who knowingly enters into a joint 106 venture with a person who has violated an antitrust law during 107 the preceding 36 months. 108 (b) “Antitrust violation” means any state or federal 109 antitrust law as determined in a civil or criminal proceeding 110 brought by the Attorney General, a state attorney, a similar 111 body or agency of another state, the Federal Trade Commission, 112 or the United States Department of Justice. 113 (c) “Antitrust violator vendor list” means the list 114 required to be kept by the department pursuant to paragraph 115 (3)(b). 116 (d) “Conviction or being held civilly liable” or “convicted 117 or held civilly liable” means a criminal finding of guilt or 118 conviction, with or without an adjudication of guilt, being held 119 civilly liable, or having a judgment levied for an antitrust 120 violation in any federal or state trial court of record relating 121 to charges brought by indictment, information, or complaint on 122 or after July 1, 2021, as a result of a jury verdict, nonjury 123 trial, or entry of a plea of guilty or nolo contendere or other 124 order finding of liability. 125 (e) “Economic incentives” means state grants, cash grants, 126 tax exemptions, tax refunds, tax credits, state funds, and other 127 state incentives under chapter 288 or administered by Enterprise 128 Florida, Inc. 129 (f) “Person” means a natural person or an entity organized 130 under the laws of any state or of the United States which 131 operates as a social media platform, as defined in s. 501.2041, 132 with the legal power to enter into a binding contract and which 133 bids or applies to bid on contracts let by a public entity, or 134 which otherwise transacts or applies to transact business with a 135 public entity. The term includes those officers, directors, 136 executives, partners, shareholders, employees, members, and 137 agents who are active in the management of an entity. 138 (g) “Public entity” means the state and any of its 139 departments or agencies. 140 (2)(a) A person or an affiliate who has been placed on the 141 antitrust violator vendor list following a conviction or being 142 held civilly liable for an antitrust violation may not submit a 143 bid, proposal, or reply for any new contract to provide any 144 goods or services to a public entity; may not submit a bid, 145 proposal, or reply for a new contract with a public entity for 146 the construction or repair of a public building or public work; 147 may not submit a bid, proposal, or reply on new leases of real 148 property to a public entity; may not be awarded or perform work 149 as a contractor, supplier, subcontractor, or consultant under a 150 new contract with a public entity; and may not transact new 151 business with a public entity. 152 (b) A public entity may not accept a bid, proposal, or 153 reply from, award a new contract to, or transact new business 154 with any person or affiliate on the antitrust violator vendor 155 list unless that person or affiliate has been removed from the 156 list pursuant to paragraph (3)(e). 157 (c) This subsection does not apply to contracts that were 158 awarded or business transactions that began before a person or 159 an affiliate was placed on the antitrust violator vendor list or 160 before July 1, 2021. 161 (3)(a) Beginning July 1, 2021, all invitations to bid, 162 requests for proposals, and invitations to negotiate, as those 163 terms are defined in s. 287.012, and any contract document 164 described in s. 287.058 must contain a statement informing 165 persons of the provisions of paragraph (2)(a). 166 (b) The department shall maintain an antitrust violator 167 vendor list of the names and addresses of the people or 168 affiliates who have been disqualified from the public 169 contracting and purchasing process under this section. The 170 department shall electronically publish the initial antitrust 171 violator vendor list on January 1, 2022, and shall update and 172 electronically publish the list quarterly thereafter. 173 Notwithstanding this paragraph, a person or an affiliate 174 disqualified from the public contracting and purchasing process 175 pursuant to this section is disqualified as of the date the 176 final order is entered. 177 (c)1. Upon receiving reasonable information from any source 178 that a person was convicted or held civilly liable, the 179 department shall investigate the information and determine 180 whether good cause exists to place that person or an affiliate 181 of that person on the antitrust violator vendor list. If good 182 cause exists, the department shall notify the person or 183 affiliate in writing of its intent to place the name of that 184 person or affiliate on the antitrust violator vendor list and of 185 the person’s or affiliate’s right to a hearing, the procedure 186 that must be followed, and the applicable time requirements. If 187 the person or affiliate does not request a hearing, the 188 department shall enter a final order placing the name of the 189 person or affiliate on the antitrust violator vendor list. A 190 person or an affiliate may not be placed on the antitrust 191 violator vendor list without receiving an individual notice of 192 intent from the department. 193 2. Within 21 days after receipt of the notice of intent, 194 the person or affiliate may file a petition for a formal hearing 195 under ss. 120.569 and 120.57(1) to determine whether it is in 196 the public interest for the person or affiliate to be placed on 197 the antitrust violator vendor list. A person or an affiliate may 198 not file a petition for an informal hearing under s. 120.57(2). 199 The procedures of chapter 120 shall apply to any formal hearing 200 under this paragraph except, within 30 days after the formal 201 hearing or receipt of the hearing transcript, whichever is 202 later, the administrative law judge shall enter a final order 203 that shall consist of findings of fact, conclusions of law, 204 interpretation of agency rules, and any other information 205 required by law or rule to be contained in the final order. The 206 final order shall direct the department to place or not place 207 the person or affiliate on the antitrust violator vendor list. 208 The final order of the administrative law judge is final agency 209 action for purposes of s. 120.68. 210 3. In determining whether it is in the public interest to 211 place a person or an affiliate on the antitrust violator vendor 212 list under this paragraph, the administrative law judge shall 213 consider the following factors: 214 a. Whether the person or affiliate committed an antitrust 215 violation. 216 b. The nature and details of the antitrust violation. 217 c. The degree of culpability of the person or affiliate 218 proposed to be placed on the antitrust violator vendor list. 219 d. Reinstatement or clemency in any jurisdiction in 220 relation to the antitrust violation at issue in the proceeding. 221 e. The needs of public entities for additional competition 222 in the procurement of goods and services in their respective 223 markets. 224 4. In any proceeding under this paragraph, the department 225 must prove that it is in the public interest for the person or 226 affiliate to whom it has given notice under this paragraph to be 227 placed on the antitrust violator vendor list. Proof that a 228 person was convicted or was held civilly liable or that an 229 entity is an affiliate of such person constitutes a prima facie 230 case that it is in the public interest for the person or 231 affiliate to whom the department has given notice to be put on 232 the antitrust violator vendor list. Status as an affiliate must 233 be proven by clear and convincing evidence. If the 234 administrative law judge determines that the person was not 235 convicted or that the person was not civilly liable or is not an 236 affiliate of such person, that person or affiliate may not be 237 placed on the antitrust violator vendor list. 238 5. Any person or affiliate who has been notified by the 239 department of its intent to place his or her name on the 240 antitrust violator vendor list may offer evidence on any 241 relevant issue. An affidavit alone does not constitute competent 242 substantial evidence that the person has not been convicted or 243 is not an affiliate of a person convicted or held civilly 244 liable. Upon establishment of a prima facie case that it is in 245 the public interest for the person or affiliate to whom the 246 department has given notice to be put on the antitrust violator 247 vendor list, the person or affiliate may prove by a 248 preponderance of the evidence that it would not be in the public 249 interest to put him or her on the antitrust violator vendor 250 list, based upon evidence addressing the factors in subparagraph 251 3. 252 (d)1. If a person has been charged or accused of any state 253 or federal antitrust law in a civil or criminal proceeding 254 brought by the Attorney General, a state attorney, the Federal 255 Trade Commission, or the United States Department of Justice on 256 or after July 1, 2021, the Attorney General may, by a finding of 257 probable cause that a person has likely violated the underlying 258 antitrust laws, temporarily place such person on the antitrust 259 violator vendor list until such proceeding has concluded. 260 2. If probable cause exists, the Attorney General shall 261 notify the person in writing of its intent to temporarily place 262 the name of that person on the antitrust violator vendor list, 263 and of the person’s right to a hearing, the procedure that must 264 be followed, and the applicable time requirements. If the person 265 does not request a hearing, the Attorney General shall enter a 266 final order temporarily placing the name of the person on the 267 antitrust violator vendor list. A person may not be placed on 268 the antitrust violator vendor list without receiving an 269 individual notice of intent from the Attorney General. 270 3. Within 21 days after receipt of the notice of intent, 271 the person may file a petition for a formal hearing pursuant to 272 ss. 120.569 and 120.57(1) to determine whether it is in the 273 public interest for the person to be temporarily placed on the 274 antitrust violator vendor list. A person may not file a petition 275 for an informal hearing under s. 120.57(2). The procedures of 276 chapter 120 shall apply to any formal hearing under this 277 paragraph. 278 4. In determining whether it is in the public interest to 279 place a person on the antitrust violator vendor list under this 280 paragraph, the administrative law judge shall consider the 281 following factors: 282 a. The likelihood the person committed the antitrust 283 violation. 284 b. The nature and details of the antitrust violation. 285 c. The degree of culpability of the person proposed to be 286 placed on the antitrust violator vendor list. 287 d. The needs of public entities for additional competition 288 in the procurement of goods and services in their respective 289 markets. 290 5. This paragraph does not apply to affiliates. 291 (e)1. A person or an affiliate may be removed from the 292 antitrust violator vendor list subject to such terms and 293 conditions as may be prescribed by the administrative law judge 294 upon a determination that removal is in the public interest. In 295 determining whether removal would be in the public interest, the 296 administrative law judge must consider any relevant factors, 297 including, but not limited to, the factors identified in 298 subparagraph (c)3. Upon proof that a person was found not guilty 299 or not civilly liable, the antitrust violation case was 300 dismissed, the court entered a finding in the person’s favor, 301 the person’s conviction or determination of liability has been 302 reversed on appeal, or the person has been pardoned, the 303 administrative law judge shall determine that removal of the 304 person or an affiliate of that person from the antitrust 305 violator vendor list is in the public interest. A person or an 306 affiliate on the antitrust violator vendor list may petition for 307 removal from the list no sooner than 6 months after the date a 308 final order is entered pursuant to this section but may petition 309 for removal at any time if the petition is based upon a reversal 310 of the conviction or liability on appellate review or pardon. 311 The petition must be filed with the department, and the 312 proceeding must be conducted pursuant to the procedures and 313 requirements of this subsection. 314 2. If the petition for removal is denied, the person or 315 affiliate may not petition for another hearing on removal for a 316 period of 9 months after the date of denial unless the petition 317 is based upon a reversal of the conviction on appellate review 318 or a pardon. The department may petition for removal before the 319 expiration of such period if, in its discretion, it determines 320 that removal would be in the public interest. 321 (4) The conviction of a person or a person held civilly 322 liable for an antitrust violation, or placement on the antitrust 323 violator vendor list, does not affect any rights or obligations 324 under any contract, franchise, or other binding agreement that 325 predates such conviction or placement on the antitrust violator 326 vendor list. 327 (5) A person who has been placed on the antitrust violator 328 vendor list is not a qualified applicant for economic incentives 329 under chapter 288, and such entity shall not be qualified to 330 receive such economic incentives. 331 (6) This section does not apply to any activities regulated 332 by the Public Service Commission or to the purchase of goods or 333 services made by any public entity from the Department of 334 Corrections, from the nonprofit corporation organized under 335 chapter 946, or from any qualified nonprofit agency for the 336 blind or any qualified nonprofit agency for other severely 337 handicapped persons under ss. 413.032-413.037. 338 (7) This section may only be enforced to the extent not 339 inconsistent with federal law and notwithstanding any other 340 provision of state law. 341 Section 3. Section 501.2041, Florida Statutes, is created 342 to read: 343 501.2041 Unlawful acts and practices by social media 344 platforms.— 345 (1) As used in this section, the term: 346 (a) “Algorithm” means a mathematical set of rules that 347 specifies how a group of data behaves and that will assist in 348 ranking search results and maintaining order or that is used in 349 sorting or ranking content or material based on relevancy or 350 other factors instead of using published time or chronological 351 order of such content or material. 352 (b) “Censor” includes any action taken by a social media 353 platform to delete, regulate, restrict, edit, alter, inhibit the 354 publication or republication of, suspend a right to post, 355 remove, or post an addendum to any content or material posted by 356 a user. The term also includes actions to inhibit the ability of 357 a user to be viewable by or to interact with another user of the 358 social media platform. 359 (c) “Deplatform” means the action or practice by a social 360 media platform to permanently delete or ban a user or to 361 temporarily delete or ban a user from the social media platform 362 for more than 60 days. 363 (d) “Journalistic enterprise” means an entity that: 364 1. Publishes in excess of 100,000 words available online 365 with at least 50,000 paid subscribers or 100,000 monthly active 366 users; 367 2. Publishes 100 hours of audio or video available online 368 with at least 100 million viewers annually; 369 3. Operates a cable channel that provides more than 40 370 hours of content per week to more than 100,000 cable television 371 subscribers; or 372 4. Operates under a broadcast license issued by the Federal 373 Communications Commission. 374 (e) “Post-prioritization” means action by a social media 375 platform to place, feature, or prioritize certain content or 376 material ahead of, below, or in a more or less prominent 377 position than others in a newsfeed, a feed, a view, or in search 378 results. The term does not include post-prioritization of 379 content and material based on payments by a third party, 380 including other users, to the social media platform. 381 (f) “Shadow ban” means action by a social media platform, 382 through any means, whether the action is determined by a natural 383 person or an algorithm, to limit or eliminate the exposure of a 384 user or content or material posted by a user to other users of 385 the social media platform. This term includes acts of shadow 386 banning by a social media platform which are not readily 387 apparent to a user. 388 (g) “Social media platform” means any information service, 389 system, Internet search engine, or access software provider that 390 does business in this state and provides or enables computer 391 access by multiple users to a computer server, including an 392 Internet platform or a social media site. The Internet platform 393 or social media site may be a sole proprietorship, partnership, 394 limited liability company, corporation, association, or other 395 legal entity that does business in this state and that satisfies 396 at least one of the following thresholds: 397 1. Has annual gross revenues in excess of $100 million, as 398 adjusted in January of each odd-numbered year to reflect any 399 increase in the Consumer Price Index. 400 2. Has at least 100 million monthly individual platform 401 participants globally. 402 (h) “User” means a person who resides or is domiciled in 403 this state and who has an account on a social media platform, 404 regardless of whether the person posts or has posted content or 405 material to the social media platform. 406 (2) A social media platform that fails to comply with any 407 of the provisions of this subsection commits an unfair or 408 deceptive act or practice as specified in s. 501.204. 409 (a) A social media platform must publish the standards, 410 including detailed definitions, it uses or has used for 411 determining how to censor, deplatform, and shadow ban. 412 (b) A social media platform must apply censorship, 413 deplatforming, and shadow banning standards in a consistent 414 manner among its users on the platform. 415 (c) A social media platform must inform each user about any 416 changes to its user rules, terms, and agreements before 417 implementing the changes and may not make changes more than once 418 every 30 days. 419 (d) A social media platform may not censor a user’s content 420 or material or deplatform a user from the social media platform: 421 1. Without notifying the user who posted or attempted to 422 post the content or material; or 423 2. In a way that violates this part. 424 (e) A social media platform must: 425 1. Provide a mechanism that allows a user to request the 426 number of other individual platform participants who were 427 provided or shown the user’s content or posts. 428 2. Provide, upon request, a user with the number of other 429 individual platform participants who were provided or shown 430 content or posts. 431 (f) A social media platform must: 432 1. Categorize algorithms used for post-prioritization and 433 shadow banning. 434 2. Allow a user to opt out of post-prioritization and 435 shadow banning algorithm categories to allow sequential or 436 chronological posts and content. 437 (g) A social media platform must provide users with an 438 annual notice on the use of algorithms for post-prioritization 439 and shadow banning and reoffer annually the opt-out opportunity 440 in subparagraph (f)2. 441 (h) A social media platform may not apply or use post 442 prioritization or shadow banning algorithms for content and 443 material posted by or about a user who is known by the social 444 media platform to be a candidate as defined in s. 106.011(3)(e), 445 beginning from the date of qualification and ending on the date 446 of the election or the date such candidate for office ceases to 447 be a candidate before the date of election. Post-prioritization 448 of certain content or material from or about a candidate for 449 office based on payments to the social media platform by such 450 candidate for office or a third party is not a violation of this 451 paragraph. Social media platforms must provide users with a 452 method to identify themselves as qualified candidates and may 453 confirm such qualification by reviewing the website of the 454 Division of Elections of the Department of State. 455 (i) A social media platform must allow a user who has been 456 deplatformed to access or retrieve all of the user’s 457 information, content, material, and data for at least 60 days 458 after being deplatformed. 459 (j) A social media platform may not take any action to 460 censor, deplatform, or shadow ban a journalistic enterprise 461 based on the content of its publication or broadcast. Post 462 prioritization of certain journalistic enterprise content based 463 on payments to the social media platform by such journalistic 464 enterprise is not a violation of this paragraph. 465 (3) For purposes of subparagraph (2)(d)1., a notification 466 must: 467 (a) Be in writing. 468 (b) Be delivered via electronic mail or direct electronic 469 notification to the user within 30 days after the censoring 470 action. 471 (c) Include a thorough rationale explaining the reason that 472 the social media platform censored the user. 473 (d) Include a precise and thorough explanation of how the 474 social media platform became aware of the censored content or 475 material, including a thorough explanation of the algorithms 476 used, if any, to identify or flag the user’s content or material 477 as objectionable. 478 (4) Notwithstanding any other provisions of this section, a 479 social media platform is not required to notify a user if the 480 censored content or material is obscene as defined in s. 481 847.001. 482 (5) If the department, by its own inquiry or as a result of 483 a complaint, suspects that a violation of this section is 484 imminent, occurring, or has occurred, the department may 485 investigate the suspected violation in accordance with this 486 part. Based on its investigation, the department may bring a 487 civil or administrative action under this part. 488 (6) A user may only bring a private cause of action for 489 violations of paragraph (2)(b) or subparagraph (2)(d)1. In a 490 private cause of action brought under paragraph (2)(b) or 491 subparagraph (2)(d)1., the court may award the following damages 492 to the user: 493 (a) Up to $100,000 in statutory damages per proven claim. 494 (b) Actual damages. 495 (c) If aggravating factors are present, punitive damages. 496 (d) Other forms of equitable relief. 497 (e) If the user was deplatformed in violation of paragraph 498 (2)(b), costs and reasonable attorney fees. 499 (7) For purposes of bringing an action under subsection (2) 500 or subsection (6), each failure to comply with the individual 501 provisions of subsection (2) shall be treated as a separate 502 violation, act, or practice. 503 (8) In an investigation by the department into alleged 504 violations of this section, the department’s investigative 505 powers include, but are not limited to, the ability to subpoena 506 any algorithm used by a social media platform related to any 507 alleged violation. 508 (9) This section may only be enforced to the extent not 509 inconsistent with federal law and 47 U.S.C. s. 230(e)(3), and 510 notwithstanding any other provision of state law. 511 Section 4. Subsection (2) of section 501.212, Florida 512 Statutes, is amended to read: 513 501.212 Application.—This part does not apply to: 514 (2) Except as provided in s. 501.2041, a publisher, 515 broadcaster, printer, or other person engaged in the 516 dissemination of information or the reproduction of printed or 517 pictorial matter, insofar as the information or matter has been 518 disseminated or reproduced on behalf of others without actual 519 knowledge that it violated this part. 520 Section 5. If any provision of this act or the application 521 thereof to any person or circumstance is held invalid, the 522 invalidity shall not affect other provisions or applications of 523 the act which can be given effect without the invalid provision 524 or application, and to this end the provisions of this act are 525 declared severable. 526 Section 6. This act shall take effect July 1, 2021.