NY State Senate Bill 2021-S8316

Senate Bill S8316

2021-2022 Legislative Session

Prevents interactive computer service providers from knowingly or negligently promoting developed content that is dangerous or otherwise injurious to minors

download bill text pdf

Archive: Last Bill Status - In Senate Committee Internet And Technology Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 11, 2022	referred to internet and technology

2021-S8316 (ACTIVE) - Details

See Assembly Version of this Bill:: A8558
Current Committee:: Senate Internet And Technology
Law Section:: General Business Law
Laws Affected:: Add §394-ccc, Gen Bus L
Versions Introduced in 2023-2024 Legislative Session:: S2319, A927

2021-S8316 (ACTIVE) - Summary

Prevents interactive computer service providers from knowingly or negligently promoting developed content that is dangerous or otherwise injurious to minors; assesses a civil penalty to social media networks that knowingly or negligently promote such content.

2021-S8316 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8316

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the general business law, in relation to preventing
interactive computer service providers from knowingly or negligently
promoting developed content that is dangerous or otherwise injurious to
minors

 
PURPOSE OR GENERAL IDEA OF BILL:

Prevents interactive computer service providers from knowingly or negli-
gently promoting developed content that is dangerous or otherwise inju-
rious to minors

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 provides important definitions that are critical in determin-
ing whether content is sufficiently developed, namely, what "targeting"
is, what "promoting" is, and what a "developed message" is. It also
provides the elements for determining interactive computers service

provider liability; defenses to the act; exceptions to the act; and
liability under the act.

 
JUSTIFICATION:

Interactive computer service providers wield immeasurable power in our
society. They are free to act in a variety of unethical and unlawful
ways that are at odds with our modem society's principles.  Interactive
computer service providers are protected under law from being considered
as the publisher or speaker of content generated by their users under 42
U.S.C. Section 230. As a result, they are not accountable for any user-
generated content hosted on their websites.  This is particularly trou-
bling in the case of minors, where our State's impressionable youth is
being exposed daily to a barrage of exploitative, inflammatory, and
predatory content. Worse yet, most major interactive computer service
providers do not take any steps to verify the age of its users, leading
to the extremely high risk of children under the age of ten being
exposed to these types of messages. However, when an interactive comput-
er service provider "develops, in whole or in part," content, they lose
their protection under Section 230. This bill aims to hold interactive
computer service providers civilly liable for damages resulting from
content they develop in accordance with Section 230.

The content that an interactive computer service provider directly
alters or creates is referred to as developed content. However, when
particular user-generated content is targeted towards a specific indi-
vidual, based on their specific characteristics, and in specified ways
such as time, location, and placement of content on a page - it can be
considered developed content. When a message is promoted in such a
calculated manner, the intended message is no longer the message that
the targeted minor sees in the user-generated material.  Instead, the
message becomes the underlying message that the interactive computer
service is aiming to communicate to a user. This is because targeting
specific people with specific content necessitates sending a special-
ized, targeted message that, while comparable to the information being
delivered, is uniquely crafted for the targeted minor. For example, if a
social media platform promotes third-party generated content that
encourages eating disorders to a targeted minor, the third-party gener-
ated content may expressly state, figure-conscious person around dinner
time (which the interactive computer service provider knows about
because they determined their individual characteristics, location, and
other factors), then that message is evidently intended to be developed
into "This large group of reputable people do not want you to eat dinner
tonight."

The purpose of this act is to hold interactive computer service provid-
ers responsible exclusively for generating messages that cause injuries
to minors. The act is not intended to hold interactive computer service
providers responsible for targeting users with content based only on
their location and/or time data, because such information cannot, with-
out more, be employed in any exploitative or inflammatory way. Further-
more, because the risk of harm is so minimal in these instances, this
exception balances the benefits of promoting local businesses to users
in a specific region with the harms of advertising harmful content to
users.

The injuries meant to be prevented by this act are broad and encompass
any sort of injury which is harmful to minors under the age of eighteen.

 
PRIOR LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS:

TBD

 
EFFECTIVE DATE:
This act shall take effect on the one hundred twentieth day after it
shall have become a law.

2021-S8316 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8316
 
                             I N  S E N A T E
 
                             February 11, 2022
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Internet and Technology
 
 AN ACT to amend the general business  law,  in  relation  to  preventing
   interactive  computer  service providers from knowingly or negligently
   promoting developed content that is dangerous or  otherwise  injurious
   to minors

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general business law is amended by adding a new section
 394-ccc to read as follows:
   § 394-CCC. INTERACTIVE COMPUTER SERVICE PROVIDERS; DEVELOPING  INJURI-
 OUS  CONTENT;  MINORS.  1.  AS USED IN THIS SECTION, THE FOLLOWING TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "INTERACTIVE COMPUTER SERVICE  PROVIDERS"  SHALL  MEAN  A  SERVICE
 PROVIDER WHO OPERATES IN THE STATE OF NEW YORK, WHICH, FOR PROFIT-MAKING
 PURPOSES,  OPERATES AN INTERNET PLATFORM THAT IS DESIGNED TO DISSEMINATE
 PUBLIC CONTENT GENERATED BY THIRD PARTIES;
   (B) "CONTENT" SHALL MEAN THE TEXTUAL, VISUAL OR AURAL INFORMATION THAT
 IS GENERATED BY A THIRD PARTY OR AN INTERACTIVE COMPUTER SERVICE PROVID-
 ER;
   (C) "PROMOTE" SHALL  MEAN  TO  PRESENT,  OR  OTHERWISE  CONVEY,  THIRD
 PARTY-GENERATED   OR  INTERACTIVE  COMPUTER  SERVICE  PROVIDER-GENERATED
 CONTENT TO A TARGETED MINOR;
   (D) "MINOR" SHALL MEAN ANY PERSON UNDER THE AGE  OF  EIGHTEEN  WHO  IS
 LOCATED IN THE STATE OF NEW YORK;
   (E)  "PLATFORM"  MEANS AN APPLICATION OR WEBSITE THAT SERVES AS A BASE
 FROM WHICH THE INTERACTIVE COMPUTER SERVICE IS PROVIDED;
   (F) "TARGETED MINOR" MEANS A MINOR WHO USES THE  INTERACTIVE  COMPUTER
 SERVICE,  AND  WHO THE INTERACTIVE COMPUTER SERVICE PROVIDER TARGETS FOR
 THE PURPOSE OF SENDING A DEVELOPED MESSAGE;
   (G) "TARGET, TARGETS, TARGETED, OR  TARGETING"  SHALL  MEAN  CONVEYING
 CONTENT  TO  A TARGETED MINOR SOLELY ON THE BASIS OF THEIR PERSONAL DATA
 WHICH INCLUDES, BUT IS NOT LIMITED TO, THE TARGETED MINOR'S:
   (I) LOCATION DATA, WHETHER GENERAL OR PRECISE, INCLUDING:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13364-04-1
 S. 8316                             2
 
   (A) THE TIME OF  DAY  IN  THE  MINOR'S  CURRENT  OR  PREDICTED  FUTURE
 LOCATION;
   (B) THE WEATHER IN THE MINOR'S CURRENT OR PREDICTED FUTURE LOCATION;
   (C)  THE  LOCAL  BUSINESSES IN THE MINOR'S CURRENT OR FUTURE PREDICTED
 LOCATION;
   (D) THE NATURAL, ARTIFICIAL, OR PLANNED EVENTS IN THE USERS CURRENT OR
 FUTURE PREDICATED LOCATION;
   (E) POLITICAL PREFERENCES IN THE MINOR'S CURRENT OR  FUTURE  PREDICTED
 LOCATION; AND/OR
   (F) LANDMARKS IN THE MINOR'S CURRENT OR FUTURE PREDICTED LOCATION.
   (II) INCOME RELATED ACTIVITIES, INCLUDING THE MINOR'S:
   (A) INCOME LEVEL;
   (B) PROFESSION;
   (C) EMPLOYMENT STATUS;
   (D) SOURCE OF INCOME; AND/OR
   (E) INVESTMENTS.
   (III) RELATIONSHIP STATUS, INCLUDING WHETHER THE USER IS:
   (A) SINGLE;
   (B) MARRIED;
   (C) DIVORCED;
   (D) ENGAGING IN AN AFFAIR;
   (E) IN A DOMESTIC PARTNERSHIP;
   (F) ENGAGED;
   (G) IN A ROMANTIC OR INTIMATE SOCIAL RELATIONSHIP; AND/OR
   (H)  IS  CONTEMPLATING OR IS IN THE PROCESS OF TERMINATING A RELATION-
 SHIP.
   (IV) SOCIAL STATUS, INCLUDING WHETHER THE USER:
   (A) IS A PUBLIC OFFICIAL;
   (B) IS A PUBLIC FIGURE;
   (C) IS A LIMITED PURPOSE PUBLIC FIGURE;
   (D) IS INVOLUNTARILY THRUST INTO THE PUBLIC DOMAIN;
   (E) RECEIVES A SIGNIFICANT AMOUNT OF ENGAGEMENTS  ON  THE  INTERACTIVE
 COMPUTER SERVICE PROVIDER'S PLATFORM; AND/OR
   (F)  RECEIVES  AN  INSIGNIFICANT  AMOUNT OF ENGAGEMENTS OR IS WITHIN A
 SPECIFIC THRESHOLD OF ENGAGEMENTS ON  AN  INTERACTIVE  COMPUTER  SERVICE
 PROVIDER'S PLATFORM.
   (V)  PSYCHOLOGICAL  PROFILE,  WHETHER GENERATED BASED ON PSYCHOLOGICAL
 CONDITIONS SET BY THE INTERACTIVE COMPUTER SERVICE PROVIDER,  OR  UNIQUE
 OR GENERALLY ACCEPTED PSYCHOLOGICAL CONDITIONS;
   (VI) VETERAN STATUS, INCLUDING WHETHER THE USER:
   (A)  HAS  SERVED  IN  THE ARMED FORCES OF THE UNITED STATES OR ANOTHER
 COUNTRY;
   (B) IS CURRENTLY SERVING IN THE ARMED FORCES OF THE UNITED  STATES  OR
 ANOTHER COUNTRY;
   (C)  HAS  BEEN  DISCHARGED,  WHETHER HONORABLY, FOR MEDICAL REASONS OR
 OTHERWISE; AND/OR
   (D) IS NOT A VETERAN NOR A MEMBER OF THE ARMED FORCES  OF  THE  UNITED
 STATES OR ANOTHER COUNTRY.
   (VII) MEDICAL CONDITION OR STATUS, INCLUDING THE MINOR'S:
   (A) MENTAL STATE;
   (B) PHYSICAL STATE;
   (C) EMOTIONAL STATE; AND/OR
   (D) FREQUENCY OF THEIR RECEIPT OF MEDICAL CARE.
   (VIII) SEX;
   (IX) GENDER;
   (X) NATIONAL ORIGIN;
 S. 8316                             3
 
   (XI) AGE;
   (XII) RACE;
   (XIII) RELIGION; AND
   (XIV) FAMILIAL DEMOGRAPHICS, INCLUDING:
   (A) WHETHER THE USER IS PREGNANT OR EXPECTING A CHILD;
   (B) THE DEMOGRAPHIC MAKEUP OF THE MINOR'S FAMILY;
   (C) THE NUMBER OF PEOPLE IN THE MINOR'S FAMILY;
   (D) THE EMOTIONAL RELATIONSHIP BETWEEN FAMILY MEMBERS; AND/OR
   (E)  AN  IMMEDIATE OR DISTANT RELATIVE'S PERSONAL DATA AS DESCRIBED IN
 SUBPARAGRAPHS (I)-(XIII) OF THIS PARAGRAPH OR THEIR FAMILIAL  DEMOGRAPH-
 ICS STATUS AS DESCRIBED IN CLAUSES(A)-(D) OF THIS SUBPARAGRAPH; AND
   (H) "DEVELOPED OR DEVELOPING" SHALL MEAN:
   (I)  THE  INTERACTIVE COMPUTER SERVICE PROVIDER GENERATING OR ALTERING
 VISIBLE PORTIONS OF CONTENT OR A GROUP OF CONTENT; OR
   (II) THE INTERACTIVE COMPUTER SERVICE PROVIDER  SUFFICIENTLY  ALTERING
 THE  MEANING OF CONTENT OR A GROUP OF CONTENT GENERATED BY THIRD PARTIES
 THROUGH THE CALCULATED TARGETING OF THE SPECIFIC MINOR SUCH THAT  A  NEW
 MESSAGE  IS  DEEMED  TO  BE  CREATED BY THE INTERACTIVE COMPUTER SERVICE
 PROVIDER.
   2. AN INTERACTIVE COMPUTER SERVICE PROVIDER THAT CONDUCTS BUSINESS  IN
 THE  STATE  SHALL  NOT  KNOWINGLY OR NEGLIGENTLY INJURE A TARGETED MINOR
 WITH PROMOTED CONTENT THAT THE  INTERACTIVE  COMPUTER  SERVICE  PROVIDER
 DEVELOPED.
   THE  INTERACTIVE  COMPUTER  SERVICE  PROVIDER  SHALL  BE LIABLE TO THE
 TARGETED MINOR IN A CIVIL ACTION FOR ANY ACTUAL, PHYSICAL, AND EMOTIONAL
 HARM INCURRED FROM A VIOLATION OF THIS  SECTION,  AS  WELL  AS  PUNITIVE
 DAMAGES. SUCH INTERACTIVE COMPUTER SERVICES PROVIDER SHALL INCUR A CIVIL
 PENALTY OF UP TO ONE HUNDRED THOUSAND DOLLARS PER OFFENSE.
   3.  IT  IS NOT A DEFENSE TO THIS SECTION THAT THE INTERACTIVE COMPUTER
 SERVICE PROVIDER INCORRECTLY DETERMINED THE TARGETED MINOR'S DATA.
   4. NOTHING IN THIS SECTION SHALL BE CONSTRUED AS:
   (A) AN OBLIGATION IMPOSED ON AN INTERACTIVE COMPUTER SERVICE  PROVIDER
 THAT  ADVERSELY  AFFECTS  THE RIGHTS OR FREEDOMS OF ANY PERSONS, SUCH AS
 EXERCISING THE RIGHT OF FREE SPEECH PURSUANT TO THE FIRST  AMENDMENT  TO
 THE UNITED STATES CONSTITUTION;
   (B)  AN  ADDITIONAL  OR INCREASED LIABILITY OF AN INTERACTIVE COMPUTER
 SERVICE PROVIDER  FOR  ANYTHING  OTHER  THAN  KNOWINGLY  OR  NEGLIGENTLY
 PROMOTING CONTENT THAT IS DETRIMENTAL TO MINORS WHO USE SUCH INTERACTIVE
 COMPUTER SERVICE PROVIDER PROMOTING CONTENT TO NON-TARGETED MINORS BASED
 SOLELY ON THEIR LOCATION AND/OR TIME DATA;
   (C) CREATING ANY LIABILITY FOR AN INTERACTIVE COMPUTER SERVICE PROVID-
 ER FOR PROMOTING CONTENT THAT IS NOT SUFFICIENTLY DEVELOPED TO BE DEEMED
 A VIOLATION OF THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION; OR
   (D) CREATING ANY LIABILITY FOR AN INTERACTIVE COMPUTER SERVICE PROVID-
 ER  FOR  PROMOTING DANGEROUS OR OTHERWISE INJURIOUS DEVELOPED CONTENT IN
 ANOTHER STATE.
   5. IN DETERMINATION OF ANY SUCH VIOLATION, THE ATTORNEY GENERAL  SHALL
 BE  AUTHORIZED  TO  TAKE  PROOF AND MAKE A DETERMINATION OF THE RELEVANT
 FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL  PRACTICE  LAW
 AND RULES.
   § 2. This act shall take effect on the one hundred twentieth day after
 it shall have become a law.

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