State of Colorado: First Regular Session Seventy-Third General Assembly

Download as pdf or txt
Download as pdf or txt
You are on page 1of 20

First Regular Session

Seventy-third General Assembly


STATE OF COLORADO
INTRODUCED

LLS NO. 21-0184.01 Jennifer Berman x3286 SENATE BILL 21-132


SENATE SPONSORSHIP
Donovan,

HOUSE SPONSORSHIP
(None),

Senate Committees House Committees


State, Veterans, & Military Affairs

A BILL FOR AN ACT


101 CONCERNING THE REGULATION OF DIGITAL COMMUNICATIONS, AND,
102 IN CONNECTION THEREWITH, CREATING THE DIGITAL
103 COMMUNICATIONS DIVISION AND THE DIGITAL
104 COMMUNICATIONS COMMISSION.

Bill Summary

(Note: This summary applies to this bill as introduced and does


not reflect any amendments that may be subsequently adopted. If this bill
passes third reading in the house of introduction, a bill summary that
applies to the reengrossed version of this bill will be available at
http://leg.colorado.gov.)

The bill creates the digital communications division (division) and


the digital communications commission (commission) within the
department of regulatory agencies. On an annual basis and for a

Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.


Capital letters or bold & italic numbers indicate new material to be added to existing statute.
Dashes through the words indicate deletions from existing statute.
reasonable fee determined by the commission, the division shall register
digital communications platforms, which are certain
communications-oriented online businesses, such as social media
platforms or media-sharing platforms, that conduct business in Colorado
or own or operate services that are offered to Colorado residents. A
digital communications platform that fails to register with the division
commits a class 2 misdemeanor, punishable by a fine of up to $5,000 for
each day that the violation continues.
The division shall investigate and the commission may hold
hearings on claims filed with the division alleging that a digital
communications platform has allowed a person to engage in one or more
unfair or discriminatory digital communications practices on the platform,
which practices:
! Include practices that promote hate speech; undermine
election integrity; disseminate intentional disinformation,
conspiracy theories, or fake news; or authorize, encourage,
or carry out violations of users' privacy; and
! May include business, political, or social practices that are
conducted in a manner that a person aggrieved by the
practices can demonstrate are unfair or discriminatory to
the aggrieved person. Such practices, if done in an unfair
or discriminatory manner, might include:
! Practices that target users for purposes of collecting
and disseminating users' personal data, including
users' sensitive data;
! Profiling users based on their personal data
collected;
! Selling or authorizing others to use users' personal
data to provide location-based advertising or
targeted advertising; or
! Using facial recognition software and other tracking
technology.
If a person who files a complaint with the division exhausts all
administrative remedies and proceedings, the person may file a civil
action in district court alleging an unfair or discriminatory digital
communications practice.

1 Be it enacted by the General Assembly of the State of Colorado:


2 SECTION 1. In Colorado Revised Statutes, 24-1-122, add (2)(m)
3 as follows:
4 24-1-122. Department of regulatory agencies - creation.

-2- SB21-132
1 (2) The department of regulatory agencies shall consist of the following
2 divisions:
3 (m) THE DIGITAL COMMUNICATIONS DIVISION, THE HEAD OF WHICH
4 IS THE DIRECTOR OF THE DIGITAL COMMUNICATIONS DIVISION. THE
5 DIGITAL COMMUNICATIONS DIVISION, THE DIRECTOR, AND THE DIGITAL

6 COMMUNICATIONS COMMISSION, CREATED BY PART 10 OF ARTICLE 34 OF

7 THIS TITLE 24, SHALL EXERCISE THEIR POWERS AND PERFORM THEIR

8 DUTIES AND FUNCTIONS AS IF TRANSFERRED BY A TYPE 1 TRANSFER.

9 SECTION 2. In Colorado Revised Statutes, 24-34-104, add


10 (32)(a)(VI) as follows:
11 24-34-104. General assembly review of regulatory agencies
12 and functions for repeal, continuation, or reestablishment - legislative
13 declaration - repeal. (32) (a) The following agencies, functions, or both,
14 are scheduled for repeal on September 1, 2031:
15 (VI) THE DIGITAL COMMUNICATIONS DIVISION AND THE DIGITAL
16 COMMUNICATIONS COMMISSION CREATED IN PART 10 OF THIS ARTICLE 34.

17 SECTION 3. In Colorado Revised Statutes, add part 10 to article


18 34 of title 24 as follows:
19 PART 10
20 DIGITAL COMMUNICATIONS
21 24-34-1001. Short title. THE SHORT TITLE OF THIS PART 10 IS THE
22 "COLORADO DIGITAL COMMUNICATIONS ACT".
23 24-34-1002. Definitions. AS USED IN THIS PART 10, UNLESS THE
24 CONTEXT OTHERWISE REQUIRES:

25 (1) "COMMISSION" MEANS THE DIGITAL COMMUNICATIONS

26 COMMISSION CREATED IN SECTION 24-34-1004.

27 (2) "CONTROLLER" MEAN A PERSON THAT, WHETHER ALONE OR

-3- SB21-132
1 JOINTLY WITH OTHERS, DETERMINES THE PURPOSES FOR AND MEANS OF

2 PROCESSING PERSONAL DATA.

3 (3) "DE-IDENTIFIED DATA" MEANS DATA THAT DO NOT IDENTIFY


4 AN INDIVIDUAL AND WITH RESPECT TO WHICH THERE IS NO REASONABLE

5 BASIS TO BELIEVE THAT THE INFORMATION CAN BE USED TO IDENTIFY AN

6 INDIVIDUAL.

7 (4) "DEPARTMENT" MEANS THE DEPARTMENT OF REGULATORY

8 AGENCIES CREATED IN SECTION 24-34-101.

9 (5) (a) "DIGITAL COMMUNICATIONS PLATFORM" OR "PLATFORM"


10 MEANS A COMMUNICATIONS-ORIENTED ONLINE BUSINESS THAT:

11 (I) FACILITATES COMMUNICATIONS BETWEEN USERS AND ALLOWS


12 USERS TO CREATE AND SHARE CONTENT WITH OTHER USERS ONLINE

13 ACROSS THE PLATFORM;

14 (II) ALLOWS BUSINESSES TO ADVERTISE TO COLORADO RESIDENTS


15 USING THE PLATFORM THROUGH THE USE OF GEOLOCATION TECHNOLOGY

16 ACCESSED FROM USERS' ELECTRONIC DEVICES; AND

17 (III) CONDUCTS BUSINESS IN COLORADO OR OWNS OR OPERATES


18 SERVICES THAT ARE OFFERED TO COLORADO RESIDENTS AND SATISFIES
19 ONE OR BOTH OF THE FOLLOWING THRESHOLDS:

20 (A) IS A CONTROLLER OR PROCESSOR OF THE PERSONAL DATA OF


21 ONE HUNDRED THOUSAND CONSUMERS OR MORE; OR

22 (B) DERIVES REVENUE OR RECEIVES A DISCOUNT ON THE PRICE OF


23 GOODS OR SERVICES FROM THE SALE OF PERSONAL DATA AND IS A

24 CONTROLLER OR PROCESSOR OF THE PERSONAL DATA OF TWENTY-FIVE

25 THOUSAND CONSUMERS OR MORE.

26 (b) "DIGITAL COMMUNICATIONS PLATFORM" INCLUDES SOCIAL

27 MEDIA PLATFORMS LIKE FACEBOOK, TWITTER, AND INSTAGRAM AND

-4- SB21-132
1 MEDIA-SHARING PLATFORMS LIKE YOUTUBE AND TWITCH.

2 (c) "DIGITAL COMMUNICATIONS PLATFORM" DOES NOT INCLUDE


3 MARKETPLACE FACILITATORS, AS DEFINED IN SECTION 39-26-102 (5.9), OR

4 OTHER SERVICE-ORIENTED PLATFORMS LIKE TRANSPORTATION NETWORK

5 COMPANIES, AS DEFINED IN SECTION 40-10.1-602 (3), OR SHORT-TERM

6 RENTAL PLATFORMS LIKE AIRBNB.

7 (6) "DIRECTOR" MEANS THE DIRECTOR OF THE DIVISION APPOINTED


8 PURSUANT TO SECTION 24-34-1003 (1).

9 (7) "DIVISION" MEANS THE DIGITAL COMMUNICATIONS DIVISION


10 CREATED IN SECTION 24-34-1003.

11 (8) "ELECTRONIC DEVICE" MEANS A DEVICE THAT ENABLES ACCESS


12 TO OR USE OF ELECTRONIC COMMUNICATIONS OR THE INTERNET.

13 (9) "GEOLOCATION TECHNOLOGY" MEANS TECHNOLOGY SUCH AS


14 THE GLOBAL POSITIONING SYSTEM OR "GPS" OR AN INTERNET PROTOCOL

15 ADDRESS OR "IP ADDRESS" USED TO IDENTIFY AND TRACK THE

16 WHEREABOUTS OF AN ELECTRONIC DEVICE AND TO TRACK THE

17 MOVEMENTS AND LOCATION OF THE USER FOR PURPOSES OF PROVIDING

18 LOCATION-BASED SERVICES TO THE USER OR ALLOWING BUSINESSES TO

19 CONDUCT LOCATION-BASED ADVERTISING OR MARKETING DIRECTED AT

20 USERS IN A CERTAIN LOCATION.

21 (10) "LOCATION-BASED ADVERTISING" MEANS A FORM OF

22 ADVERTISING IN WHICH A BUSINESS USES LOCATION-BASED SERVICES TO

23 PROVIDE LOCATION-SPECIFIC ADVERTISEMENTS TO A USER ON THE USER'S

24 ELECTRONIC DEVICE.

25 (11) "LOCATION-BASED SERVICES" MEANS SOFTWARE SERVICES


26 THAT USE AN ELECTRONIC DEVICE'S GEOLOCATION TECHNOLOGY TO

27 TRACK THE USER'S LOCATION AND PROVIDE THE USER TARGETED

-5- SB21-132
1 INFORMATION OR SERVICES BASED ON THE USER'S LOCATION.

2 (12) "PERSONAL DATA":


3 (a) MEANS INFORMATION THAT IS LINKED OR REASONABLY

4 LINKABLE TO AN IDENTIFIED OR IDENTIFIABLE INDIVIDUAL; AND

5 (b) DOES NOT INCLUDE DE-IDENTIFIED DATA OR PUBLICLY

6 AVAILABLE INFORMATION.

7 (13) "PROCESSOR" MEANS A PERSON THAT PROCESSES PERSONAL


8 DATA ON BEHALF OF A CONTROLLER.

9 (14) "PROFILING" MEANS ANY FORM OF AUTOMATED PROCESSING


10 OF PERSONAL DATA TO EVALUATE, ANALYZE, OR PREDICT PERSONAL

11 ASPECTS CONCERNING AN IDENTIFIED OR IDENTIFIABLE INDIVIDUAL'S

12 ECONOMIC SITUATION, HEALTH, PERSONAL PREFERENCES, INTERESTS,

13 RELIABILITY, BEHAVIOR, LOCATION, OR MOVEMENTS.

14 (15) "PUBLICLY AVAILABLE INFORMATION" MEANS INFORMATION


15 THAT IS LAWFULLY MADE AVAILABLE FROM FEDERAL, STATE, OR LOCAL

16 GOVERNMENT RECORDS OR GENERALLY ACCESSIBLE OR WIDELY

17 DISTRIBUTED MEDIA.

18 (16) "SENSITIVE DATA" MEANS:


19 (a) PERSONAL DATA REVEALING RACIAL OR ETHNIC ORIGIN,

20 RELIGIOUS BELIEFS, A MENTAL OR PHYSICAL HEALTH CONDITION OR

21 DIAGNOSIS, SEX LIFE OR SEXUAL ORIENTATION, OR CITIZENSHIP OR

22 CITIZENSHIP STATUS; OR

23 (b) GENETIC OR BIOMETRIC DATA THAT MAY BE PROCESSED FOR


24 THE PURPOSE OF UNIQUELY IDENTIFYING AN INDIVIDUAL.

25 (17) "TARGETED ADVERTISING":


26 (a) MEANS DISPLAYING TO A CONSUMER AN ADVERTISEMENT THAT
27 IS SELECTED BASED ON PERSONAL DATA OBTAINED OR INFERRED OVER

-6- SB21-132
1 TIME FROM THE CONSUMER'S ACTIVITIES ACROSS NONAFFILATED

2 WEBSITES, APPLICATIONS, OR ONLINE SERVICES TO PREDICT CONSUMER

3 PREFERENCES OR INTERESTS; AND

4 (b) DOES NOT INCLUDE ADVERTISING TO A CONSUMER IN RESPONSE


5 TO THE CONSUMER'S REQUEST FOR INFORMATION OR FEEDBACK.

6 (18) "USER" MEANS AN ELECTRONIC DEVICE END USER.


7 24-34-1003. Digital communications division - director -
8 powers and duties. (1) THERE IS HEREBY CREATED WITHIN THE

9 DEPARTMENT THE DIGITAL COMMUNICATIONS DIVISION, THE HEAD OF

10 WHICH IS THE DIRECTOR OF THE DIVISION. THE EXECUTIVE DIRECTOR OF

11 THE DEPARTMENT SHALL APPOINT THE DIRECTOR PURSUANT TO SECTION

12 13 OF ARTICLE XII OF THE STATE CONSTITUTION.


13 (2) THE DIRECTOR SHALL APPOINT INVESTIGATORS AND OTHER

14 PERSONNEL AS MAY BE NECESSARY TO CARRY OUT THE FUNCTIONS AND

15 DUTIES OF THE DIVISION. THE DIRECTOR AND STAFF OF THE DIVISION

16 SHALL RECEIVE, INVESTIGATE, AND MAKE DETERMINATIONS ON CHARGES

17 ALLEGING UNFAIR AND DISCRIMINATORY DIGITAL COMMUNICATIONS

18 PRACTICES IN VIOLATION OF THIS PART 10.

19 24-34-1004. Digital communications commission - membership


20 - terms of office - compensation. (1) (a) THERE IS HEREBY CREATED
21 WITHIN THE DIVISION THE DIGITAL COMMUNICATIONS COMMISSION.

22 (b) THE COMMISSION CONSISTS OF THE FOLLOWING SEVEN

23 MEMBERS:

24 (I) THE CHIEF INFORMATION OFFICER OF THE OFFICE OF

25 INFORMATION TECHNOLOGY, APPOINTED PURSUANT TO SECTION

26 24-37.5-103, OR THE CHIEF INFORMATION OFFICER'S DESIGNEE;


27 (II) THE ATTORNEY GENERAL, ELECTED PURSUANT TO SECTION 1

-7- SB21-132
1 OF ARTICLE IV OF THE STATE CONSTITUTION, OR THE ATTORNEY

2 GENERAL'S DESIGNEE;

3 (III) FIVE MEMBERS WHOM THE GOVERNOR APPOINTS, WITH THE


4 CONSENT OF THE SENATE IN ACCORDANCE WITH SECTION 6 OF ARTICLE IV

5 OF THE STATE CONSTITUTION, AS FOLLOWS:

6 (A) TWO MEMBERS REPRESENTING THE BUSINESS COMMUNITY

7 WHO DO NOT HAVE ANY DIRECT FINANCIAL AFFILIATION WITH A DIGITAL

8 COMMUNICATIONS PLATFORM, WITH AT LEAST ONE MEMBER

9 REPRESENTING A SMALL BUSINESS WITH FEWER THAN FIFTY EMPLOYEES;

10 AND

11 (B) THREE MEMBERS FROM THE PUBLIC AT LARGE WHO DO NOT


12 HAVE ANY DIRECT FINANCIAL AFFILIATION WITH A DIGITAL

13 COMMUNICATIONS PLATFORM.

14 (c) (I) IN APPOINTING MEMBERS OF THE COMMISSION PURSUANT TO


15 SUBSECTION (1)(b)(III) OF THIS SECTION, THE GOVERNOR SHALL STRIVE TO

16 PROVIDE SOCIOECONOMIC, POLITICAL, AND GEOGRAPHIC DIVERSITY IN THE

17 COMMISSION'S MEMBERSHIP, ENSURING THAT AT LEAST TWO OF THE

18 APPOINTEES ARE FROM THE WESTERN SLOPE OR THE EASTERN PLAINS.

19 (II) THE APPOINTED MEMBERS OF THE COMMISSION SERVE

20 FOUR-YEAR TERMS, EXCEPT AS PROVIDED IN SUBSECTION (1)(c)(III) OF

21 THIS SECTION. APPOINTED MEMBERS MAY SERVE TWO TERMS ON THE

22 COMMISSION, WHETHER CONSECUTIVE OR NONCONSECUTIVE.

23 (III) OF THE MEMBERS THAT THE GOVERNOR INITIALLY APPOINTS


24 TO THE COMMISSION, ONE MEMBER APPOINTED PURSUANT TO SUBSECTION

25 (1)(b)(III)(A) OF THIS SECTION AND ONE MEMBER APPOINTED PURSUANT


26 TO SUBSECTION (1)(b)(III)(B) OF THIS SECTION SHALL SERVE AN INITIAL
27 TWO-YEAR TERM AND A SUBSEQUENT FOUR-YEAR TERM.

-8- SB21-132
1 (2) THE GOVERNOR SHALL FILL VACANCIES ON THE COMMISSION
2 BY APPOINTMENT, WITH THE CONSENT OF THE SENATE IN ACCORDANCE

3 WITH SUBSECTION (1)(b)(III) OF THIS SECTION, AND THE TERM OF A

4 MEMBER OF THE COMMISSION APPOINTED TO FILL A VACANCY IS FOR THE

5 UNEXPIRED PORTION OF THE TERM FOR WHICH THE MEMBER IS APPOINTED.

6 (3) THE GOVERNOR MAY REMOVE ANY APPOINTED MEMBER OF THE


7 COMMISSION FROM OFFICE FOR MISCONDUCT, INCOMPETENCE, OR NEGLECT

8 OF DUTY.

9 (4) APPOINTED MEMBERS OF THE COMMISSION SHALL RECEIVE A


10 PER DIEM ALLOWANCE AND SHALL BE REIMBURSED FOR ACTUAL AND

11 NECESSARY EXPENSES THAT THEY INCUR WHILE ON OFFICIAL COMMISSION

12 BUSINESS, AS PROVIDED IN SECTION 12-20-103 (6).

13 (5) AT THEIR FIRST MEETING, THE MEMBERS OF THE COMMISSION


14 SHALL APPOINT A CHAIR AND VICE-CHAIR. THE COMMISSION MAY ADOPT,

15 AMEND, OR RESCIND RULES FOR GOVERNING ITS MEETINGS. FOUR


16 MEMBERS CONSTITUTES A QUORUM FOR PURPOSES OF CONDUCTING THE

17 BUSINESS OF THE COMMISSION.

18 (6) THE COMMISSION MAY USE DIVISION STAFF TO ASSIST THE

19 COMMISSION IN ITS WORK.

20 24-34-1005. Powers and duties of commission - rules. (1) THE


21 COMMISSION HAS THE FOLLOWING POWERS AND DUTIES:

22 (a) TO ADOPT, PUBLISH, AMEND, AND RESCIND RULES, IN

23 ACCORDANCE WITH SECTION 24-4-103, THAT ARE REASONABLE AND

24 NECESSARY FOR THE IMPLEMENTATION OF THIS PART 10;

25 (b) TO ADOPT RULES TO ESTABLISH REASONABLE FEES FOR THE


26 ANNUAL REGISTRATION OF DIGITAL COMMUNICATIONS PLATFORMS

27 PURSUANT TO SECTION 24-34-1006 (1)(a);

-9- SB21-132
1 (c) TO INVESTIGATE AND STUDY THE EXISTENCE, CHARACTER,

2 CAUSES, AND EXTENT OF UNFAIR AND DISCRIMINATORY DIGITAL

3 COMMUNICATIONS PRACTICES AND TO FORMULATE PLANS FOR THE

4 ELIMINATION OF THOSE PRACTICES BY EDUCATIONAL OR OTHER MEANS;

5 (d) TO HOLD HEARINGS IN ACCORDANCE WITH SUBSECTION (2) OF


6 THIS SECTION UPON ANY COMPLAINT ISSUED AGAINST A RESPONDENT

7 PURSUANT TO SECTION 24-34-1007 (4); TO SUBPOENA WITNESSES AND

8 COMPEL THEIR ATTENDANCE; TO ADMINISTER OATHS AND TAKE THE

9 TESTIMONY OF ANY PERSON UNDER OATH; AND TO COMPEL A RESPONDENT

10 TO PRODUCE FOR EXAMINATION ANY BOOKS, PAPERS, OR RECORDS,

11 WHETHER IN PAPER OR ELECTRONIC FORM, RELATING TO ANY MATTER

12 THAT IS THE SUBJECT OF THE COMPLAINT AGAINST THE RESPONDENT;

13 (e) TO ISSUE PUBLICATIONS AND REPORTS OF INVESTIGATIONS AND


14 RESEARCH THAT IN THE COMMISSION'S JUDGMENT WILL EDUCATE THE

15 PUBLIC ON, AND PROVIDE RECOMMENDATIONS ON HOW TO MINIMIZE

16 ADVERSE EFFECTS ARISING FROM, THE USE OF DIGITAL COMMUNICATIONS

17 PLATFORMS IN THE FOLLOWING PRACTICES:

18 (I) UNFAIR AND DISCRIMINATORY DIGITAL COMMUNICATIONS

19 PRACTICES SUCH AS PRACTICES THAT PROMOTE HATE SPEECH; UNDERMINE

20 ELECTION INTEGRITY; DISSEMINATE INTENTIONAL DISINFORMATION,

21 CONSPIRACY THEORIES, OR FAKE NEWS; OR AUTHORIZE, ENCOURAGE, OR

22 CARRY OUT VIOLATIONS OF USERS' PRIVACY;

23 (II) BUSINESS, POLITICAL, AND SOCIAL PRACTICES THAT TARGET


24 USERS FOR PURPOSES OF COLLECTING AND DISSEMINATING USERS'

25 PERSONAL DATA, INCLUDING USERS' SENSITIVE DATA; PROFILING USERS

26 BASED ON THEIR PERSONAL DATA COLLECTED; OR SELLING OR

27 AUTHORIZING OTHERS TO USE USERS' PERSONAL DATA TO PROVIDE

-10- SB21-132
1 LOCATION-BASED ADVERTISING OR TARGETED ADVERTISING; AND

2 (III) THE USE OF FACIAL RECOGNITION SOFTWARE AND OTHER

3 TRACKING TECHNOLOGY;

4 (f) TO RECOMMEND POLICIES REGARDING MEASURES TO ENSURE


5 FAIR AND NONDISCRIMINATORY DIGITAL PLATFORM PRACTICES TO THE

6 GOVERNOR AND SUBMIT RECOMMENDATIONS TO PERSONS IN THE PRIVATE

7 SECTOR TO EFFECTUATE THE POLICIES;

8 (g) TO MAKE RECOMMENDATIONS TO THE GENERAL ASSEMBLY

9 REGARDING PROPOSED LEGISLATION TO COMBAT THE UNFAIR AND

10 DISCRIMINATORY DIGITAL COMMUNICATIONS PRACTICES LISTED IN

11 SUBSECTION (1)(e)(I) OF THIS SECTION OR MINIMIZE OTHER ADVERSE

12 EFFECTS ARISING FROM THE USE OF DIGITAL COMMUNICATIONS PLATFORMS

13 WITH REGARD TO THE PRACTICES LISTED IN SUBSECTIONS (1)(e)(II) AND


14 (1)(e)(III) OF THIS SECTION;
15 (h) WITHIN THE LIMITS OF ANY APPROPRIATIONS MADE FOR THE
16 COMMISSION'S OPERATIONS, TO COOPERATE WITH AGENCIES AND

17 ORGANIZATIONS, BOTH PUBLIC AND PRIVATE, WHOSE PURPOSES ARE

18 CONSISTENT WITH THE COMMISSION'S PURPOSES SET FORTH IN THIS PART

19 10 TO PLAN AND CONDUCT EDUCATIONAL PROGRAMMING; AND


20 (i) TO ADOPT AN OFFICIAL SEAL.
21 (2) THE COMMISSION MAY HOLD A HEARING OR MAY ASSIGN A

22 MEMBER OF THE COMMISSION OR ADMINISTRATIVE LAW JUDGE, APPOINTED

23 PURSUANT TO PART 10 OF ARTICLE 30 OF THIS TITLE 24, TO PRESIDE OVER

24 THE HEARING, SUBJECT TO APPROPRIATIONS FOR ADMINISTRATIVE LAW

25 JUDGES MADE TO THE DEPARTMENT OF PERSONNEL. IF AN ADMINISTRATIVE

26 LAW JUDGE IS NOT AVAILABLE WITHIN THE TIME LIMITS FOR HOLDING THE

27 HEARING PURSUANT TO SECTION 24-34-1007 (4)(b), THE GOVERNOR, UPON

-11- SB21-132
1 REQUEST OF THE COMMISSION, SHALL APPOINT AN ADMINISTRATIVE LAW

2 JUDGE TO BE PAID OUT OF MONEY APPROPRIATED TO THE DIVISION. IF A

3 WITNESS FAILS OR REFUSES TO OBEY A SUBPOENA ISSUED BY THE

4 COMMISSION, THE COMMISSION MAY PETITION THE DISTRICT COURT WITH

5 JURISDICTION FOR THE ISSUANCE OF A SUBPOENA. A REFUSAL TO OBEY A

6 SUBPOENA ISSUED BY THE DISTRICT COURT IS PUNISHABLE AS CONTEMPT.

7 (3) IN EXERCISING THE POWERS AND PERFORMING THE DUTIES AND


8 FUNCTIONS UNDER THIS PART 10, THE COMMISSION, THE DIVISION, AND
9 THE DIRECTOR SHALL PRESUME THAT THE CONDUCT OF ANY RESPONDENT

10 IS NOT UNFAIR OR DISCRIMINATORY UNTIL PROVEN OTHERWISE.

11 24-34-1006. Registration required - penalty - unfair or


12 discriminatory digital communications practices prohibited.
13 (1) (a) ON AND AFTER JANUARY 1, 2022, A DIGITAL COMMUNICATIONS
14 PLATFORM SHALL ANNUALLY REGISTER WITH THE DIVISION, IN THE FORM

15 AND MANNER DETERMINED BY THE DIVISION AND BY PAYMENT OF A FEE

16 IN AN AMOUNT THAT THE COMMISSION DETERMINES PURSUANT TO

17 SECTION 24-34-1005 (1)(b) WILL COVER THE DIVISION'S AND

18 COMMISSION'S DIRECT AND INDIRECT COSTS IN ENFORCING THIS PART 10.

19 (b) A DIGITAL COMMUNICATIONS PLATFORM THAT DOES NOT

20 REGISTER IN ACCORDANCE WITH THIS SUBSECTION (1) COMMITS A CLASS

21 2 MISDEMEANOR PUNISHABLE BY A FINE OF UP TO FIVE THOUSAND

22 DOLLARS FOR EACH DAY THAT THE VIOLATION CONTINUES.

23 (2) (a) IT IS AN UNFAIR OR DISCRIMINATORY DIGITAL

24 COMMUNICATIONS PRACTICE FOR A DIGITAL COMMUNICATIONS PLATFORM

25 TO ALLOW ANY OF THE FOLLOWING PRACTICES ON ITS PLATFORM:

26 (I) PRACTICES THAT PROMOTE HATE SPEECH;


27 (II) PRACTICES THAT UNDERMINE ELECTION INTEGRITY;

-12- SB21-132
1 (III) PRACTICES THAT DISSEMINATE INTENTIONAL

2 DISINFORMATION, CONSPIRACY THEORIES, OR FAKE NEWS; AND

3 (IV) PRACTICES THAT AUTHORIZE, ENCOURAGE, OR CARRY OUT


4 VIOLATIONS OF USERS' PRIVACY.

5 (b) IT IS AN UNFAIR OR DISCRIMINATORY DIGITAL

6 COMMUNICATIONS PRACTICE FOR A DIGITAL COMMUNICATIONS PLATFORM

7 TO ALLOW ANY OF THE FOLLOWING PRACTICES ON ITS PLATFORM IF THE

8 PRACTICE IS CONDUCTED IN A MANNER THAT A PERSON AGGRIEVED BY THE

9 PRACTICE CAN DEMONSTRATE THAT THE PRACTICE IS UNFAIR OR

10 DISCRIMINATORY TO THE AGGRIEVED PERSON:

11 (I) TARGETING USERS FOR PURPOSES OF COLLECTING AND

12 DISSEMINATING USERS' PERSONAL DATA, INCLUDING SENSITIVE DATA;

13 (II) PROFILING USERS BASED ON THEIR PERSONAL DATA

14 COLLECTED;

15 (III) SELLING OR AUTHORIZING OTHERS TO USE USERS' PERSONAL


16 DATA TO PROVIDE LOCATION-BASED ADVERTISING OR TARGETED

17 ADVERTISING; AND

18 (IV) USING FACIAL RECOGNITION SOFTWARE OR OTHER TRACKING


19 TECHNOLOGY.

20 24-34-1007. Charge - complaint - hearing - procedure -


21 exhaustion of administrative remedies - judicial review. (1) (a) A
22 PERSON CLAIMING TO BE AGGRIEVED BY AN UNFAIR OR DISCRIMINATORY

23 DIGITAL COMMUNICATIONS PRACTICE MAY, INDEPENDENTLY OR THROUGH

24 AN ATTORNEY, MAKE, SIGN, AND FILE WITH THE DIVISION A VERIFIED

25 WRITTEN CHARGE STATING THE NAME AND ADDRESS OF THE RESPONDENT

26 ALLEGED TO HAVE COMMITTED THE UNFAIR OR DISCRIMINATORY DIGITAL

27 COMMUNICATIONS PRACTICE, SETTING FORTH THE PARTICULARS OF THE

-13- SB21-132
1 ALLEGED UNFAIR OR DISCRIMINATORY DIGITAL COMMUNICATIONS

2 PRACTICE, AND INCLUDING ANY OTHER INFORMATION THAT THE DIVISION

3 REQUIRES.

4 (b) IN CASES WHERE THE COMMISSION, A MEMBER OF THE

5 COMMISSION, OR THE ATTORNEY GENERAL DETERMINES THAT AN ALLEGED

6 UNFAIR OR DISCRIMINATORY DIGITAL COMMUNICATIONS PRACTICE

7 IMPOSES A SIGNIFICANT SOCIETAL OR COMMUNITY IMPACT, THE

8 COMMISSION, A MEMBER OF THE COMMISSION, OR THE ATTORNEY GENERAL

9 MAY MAKE, SIGN, AND FILE A CHARGE ALLEGING AN UNFAIR OR

10 DISCRIMINATORY DIGITAL COMMUNICATIONS PRACTICE. THE CHARGE

11 SHALL BE FILED IN THE SAME MANNER AND SHALL CONTAIN THE SAME

12 INFORMATION REQUIRED FOR A CHARGE FILED BY A PERSON PURSUANT TO

13 SUBSECTION (1)(a) OF THIS SECTION. THE REMEDY AVAILABLE FOR AN

14 UNFAIR OR DISCRIMINATORY DIGITAL COMMUNICATIONS PRACTICE

15 ALLEGED BY THE COMMISSION, A MEMBER OF THE COMMISSION, OR THE

16 ATTORNEY GENERAL PURSUANT TO THIS SUBSECTION (1)(b) IS LIMITED TO

17 EQUITABLE RELIEF TO ELIMINATE THE UNFAIR OR DISCRIMINATORY

18 DIGITAL COMMUNICATIONS PRACTICE.

19 (2) ONCE THE DIVISION RECEIVES A CHARGE FILED PURSUANT TO


20 SUBSECTION (1) OF THIS SECTION:

21 (a) THE DIVISION SHALL NOTIFY THE RESPONDENT OF THE CHARGE


22 FILED AGAINST THE RESPONDENT; AND

23 (b) THE DIRECTOR, WITH THE ASSISTANCE OF DIVISION STAFF,

24 SHALL PROMPTLY INVESTIGATE THE CHARGE. THE DIRECTOR MAY

25 SUBPOENA WITNESSES AND COMPEL THE TESTIMONY OF WITNESSES AND

26 THE PRODUCTION OF BOOKS, PAPERS, AND RECORDS, WHETHER IN PAPER

27 OR ELECTRONIC FORM, IF THE TESTIMONY, BOOKS, PAPERS, OR RECORDS

-14- SB21-132
1 SOUGHT ARE LIMITED TO MATTERS DIRECTLY RELATED TO THE CHARGE. A

2 SUBPOENA ISSUED PURSUANT TO THIS SUBSECTION (2)(b) IS ENFORCEABLE

3 IN THE DISTRICT COURT FOR THE DISTRICT IN WHICH THE ALLEGED UNFAIR

4 OR DISCRIMINATORY DIGITAL COMMUNICATIONS PRACTICE OCCURRED AND

5 SHALL BE ISSUED ONLY IF THE PERSON TO BE SUBPOENAED HAS REFUSED

6 OR FAILED, AFTER A PROPER REQUEST FROM THE DIRECTOR, TO PROVIDE

7 VOLUNTARILY TO THE DIRECTOR THE INFORMATION SOUGHT BY THE

8 SUBPOENA.

9 (3) (a) THE DIRECTOR OR THE DIRECTOR'S DESIGNEE SHALL

10 DETERMINE, AS PROMPTLY AS POSSIBLE UPON INVESTIGATION OF THE

11 MATTER, IF PROBABLE CAUSE EXISTS FOR A CHARGE ALLEGED.

12 (b) IF THE DIRECTOR OR THE DIRECTOR'S DESIGNEE DETERMINES


13 THAT PROBABLE CAUSE DOES NOT EXIST, THE DIRECTOR OR THE

14 DIRECTOR'S DESIGNEE SHALL:

15 (I) DISMISS THE CHARGE AND NOTIFY THE PERSON WHO FILED THE
16 CHARGE AND THE RESPONDENT OF THE DISMISSAL. THE NOTICE MUST

17 INCLUDE AN ADVISEMENT STATING THAT:

18 (A) THE CHARGING PARTY MAY APPEAL THE DISMISSAL BY FILING


19 AN APPEAL WITH THE COMMISSION WITHIN TEN DAYS AFTER THE DATE

20 THAT THE NOTIFICATION WAS MAILED;

21 (B) IF THE CHARGING PARTY WISHES TO FILE A CIVIL ACTION IN


22 DISTRICT COURT BASED ON THE ALLEGED UNFAIR OR DISCRIMINATORY

23 DIGITAL COMMUNICATIONS PRACTICE, THE CHARGING PARTY MUST DO SO

24 WITHIN NINETY DAYS AFTER THE NOTICE WAS MAILED IF THE CHARGING

25 PARTY DOES NOT APPEAL THE DECISION OR WITHIN NINETY DAYS AFTER

26 THE COMMISSION NOTIFIES THE PARTIES THAT IT HAS DISMISSED AN

27 APPEAL OF THE MATTER; AND

-15- SB21-132
1 (C) IF THE CHARGING PARTY DOES NOT FILE AN ACTION WITHIN
2 THE TIME LIMITS SET FORTH IN SUBSECTION (3)(b)(I)(B) OF THIS SECTION,

3 THE ACTION IS BARRED AND A DISTRICT COURT WILL NOT HAVE

4 JURISDICTION TO HEAR THE MATTER; AND

5 (II) NOT DISCLOSE TO THIRD PARTIES THE FACT THAT THE CHARGE
6 WAS FILED OR THE INFORMATION GATHERED DURING THE INVESTIGATION.

7 (c) IF THE DIRECTOR OR THE DIRECTOR'S DESIGNEE DETERMINES


8 THAT PROBABLE CAUSE EXISTS, THE DIRECTOR OR DIRECTOR'S DESIGNEE

9 SHALL SERVE THE RESPONDENT WITH WRITTEN NOTICE STATING WITH

10 SPECIFICITY THE LEGAL AUTHORITY AND JURISDICTION OF THE

11 COMMISSION AND THE MATTERS OF FACT AND LAW ASSERTED AND SHALL

12 NOTIFY THE COMMISSION OF ITS DETERMINATION.

13 (4) (a) UPON RECEIVING A DETERMINATION FROM THE DIRECTOR


14 OR THE DIRECTOR'S DESIGNEE THAT PROBABLE CAUSE EXISTS, THE

15 COMMISSION, IF IT DETERMINES THAT THE CIRCUMSTANCES WARRANT,

16 SHALL ISSUE AND CAUSE TO BE SERVED IN ACCORDANCE WITH SECTION

17 24-4-105 (2) A WRITTEN NOTICE AND COMPLAINT REQUIRING THE

18 RESPONDENT TO ANSWER THE CHARGES AT A FORMAL HEARING BEFORE

19 THE COMMISSION, A MEMBER OF THE COMMISSION, OR AN ADMINISTRATIVE

20 LAW JUDGE. THE NOTICE AND COMPLAINT MUST STATE THE TIME, PLACE,

21 AND NATURE OF THE HEARING, THE LEGAL AUTHORITY AND JURISDICTION

22 UNDER WHICH IT IS TO BE HELD, AND THE MATTERS OF FACT AND LAW

23 ASSERTED.

24 (b) THE COMMISSION, A MEMBER OF THE COMMISSION, OR AN

25 ADMINISTRATIVE LAW JUDGE, AS APPLICABLE, SHALL COMMENCE A

26 HEARING WITHIN ONE HUNDRED TWENTY DAYS AFTER SERVICE OF THE

27 WRITTEN NOTICE AND COMPLAINT AND SHALL HOLD THE HEARING IN

-16- SB21-132
1 ACCORDANCE WITH SECTION 24-4-105.

2 (5) IF THE ADJUDICATOR AT THE HEARING DETERMINES THAT THE


3 RESPONDENT ENGAGED IN AN UNFAIR OR DISCRIMINATORY DIGITAL

4 COMMUNICATIONS PRACTICE, THE COMMISSION MAY ISSUE AND CAUSE TO

5 BE SERVED ON THE RESPONDENT AN ORDER REQUIRING THE RESPONDENT

6 TO CEASE AND DESIST FROM THE PRACTICE AND TO TAKE ACTION THAT THE

7 COMMISSION ORDERS.

8 (6) (a) IF WRITTEN NOTICE THAT A FORMAL HEARING WILL BE HELD


9 IS NOT SERVED WITHIN TWO HUNDRED SEVENTY DAYS AFTER THE FILING

10 OF THE CHARGE OR IF THE HEARING IS NOT COMMENCED WITHIN THE

11 ONE-HUNDRED-TWENTY-DAY PERIOD REQUIRED BY SUBSECTION (4)(b) OF

12 THIS SECTION, THE COMMISSION'S JURISDICTION OVER THE COMPLAINT

13 CEASES AND THE COMPLAINANT MAY SEEK RELIEF AGAINST THE

14 RESPONDENT BY FILING A CIVIL ACTION IN THE DISTRICT COURT FOR THE

15 DISTRICT IN WHICH THE ALLEGED UNFAIR OR DISCRIMINATORY DIGITAL

16 COMMUNICATIONS PRACTICE OCCURRED. THE COMPLAINANT MUST FILE A

17 CIVIL ACTION WITHIN NINETY DAYS AFTER THE DATE UPON WHICH THE

18 COMMISSION'S JURISDICTION CEASED. IF THE COMPLAINANT DOES NOT FILE

19 A CIVIL ACTION WITHIN THE NINETY-DAY PERIOD, THE ACTION IS BARRED

20 AND A DISTRICT COURT DOES NOT HAVE JURISDICTION TO HEAR THE

21 MATTER.

22 (b) A PARTY MAY REQUEST AN EXTENSION OF ANY OF THE TIME


23 PERIODS SET FORTH IN THIS SUBSECTION (6) AND THE COMMISSION, A

24 MEMBER OF THE COMMISSION, OR AN ADMINISTRATIVE LAW JUDGE

25 HEARING THE MATTER MAY GRANT THE EXTENSION FOR GOOD CAUSE

26 SHOWN, BUT THE PERIOD OF ALL SUCH EXTENSIONS IN A MATTER MUST NOT

27 EXCEED NINETY DAYS GRANTED TO THE COMPLAINANT OR NINETY DAYS

-17- SB21-132
1 GRANTED TO THE RESPONDENT OR, IF THERE ARE MULTIPLE PARTIES, ONE

2 HUNDRED EIGHTY DAYS TOTAL.

3 (7) ANY MEMBER OF THE COMMISSION AND ANY PERSON

4 PARTICIPATING IN GOOD FAITH IN MAKING A COMPLAINT OR REPORT OR IN

5 ANY INVESTIGATIVE OR ADMINISTRATIVE PROCEEDING AUTHORIZED BY

6 THIS PART 10 IS IMMUNE FROM LIABILITY IN ANY CIVIL ACTION BROUGHT

7 AGAINST THE PERSON FOR ACTS OCCURRING WHILE ACTING IN THE

8 PERSON'S CAPACITY AS A MEMBER OF THE COMMISSION OR AS A

9 PARTICIPANT IF THE PERSON WAS ACTING IN GOOD FAITH WITHIN THE

10 SCOPE OF THE PERSON'S RESPECTIVE CAPACITY, MADE A REASONABLE

11 EFFORT TO OBTAIN THE FACTS OF THE MATTER AS TO WHICH THE PERSON

12 ACTED, AND ACTED IN THE REASONABLE BELIEF THAT THE ACTION TAKEN

13 WAS WARRANTED BY THE FACTS.

14 (8) (a) A PERSON SHALL NOT FILE A CIVIL ACTION IN DISTRICT

15 COURT IN THIS STATE ALLEGING AN UNFAIR OR DISCRIMINATORY DIGITAL

16 COMMUNICATIONS PRACTICE PURSUANT TO THIS PART 10 WITHOUT

17 HAVING FIRST EXHAUSTED THE PROCEEDINGS AND REMEDIES AVAILABLE

18 UNDER THIS PART 10, UNLESS THE PERSON SHOWS BY CLEAR AND

19 CONVINCING EVIDENCE, IN AN ACTION FILED IN THE APPROPRIATE DISTRICT

20 COURT, THAT THE PERSON HAS HEALTH ISSUES OF SUCH A NATURE THAT

21 FIRST PURSUING ADMINISTRATIVE REMEDIES WOULD NOT PROVIDE TIMELY

22 AND REASONABLE RELIEF AND WOULD CAUSE IRREPARABLE HARM.

23 (b) (I) A PERSON WHO HAS FILED CHARGES PURSUANT TO

24 SUBSECTION (1) OF THIS SECTION MAY FILE A WRITTEN REQUEST THAT THE

25 DIVISION ISSUE A WRITTEN NOTICE OF RIGHT TO SUE AT ANY TIME BEFORE

26 SERVICE OF A NOTICE AND COMPLAINT HAS BEEN SERVED PURSUANT TO

27 SUBSECTION (4) OF THIS SECTION. THE DIVISION SHALL PROMPTLY GRANT

-18- SB21-132
1 THE REQUEST IF THE REQUEST IS MADE AT LEAST ONE HUNDRED EIGHTY

2 DAYS FOLLOWING THE FILING OF THE CHARGE. IF THE PERSON WHO FILED

3 CHARGES MAKES THE REQUEST LESS THAN ONE HUNDRED EIGHTY DAYS

4 AFTER FILING THE CHARGES, THE DIVISION SHALL GRANT THE REQUEST IF

5 THE DIVISION DETERMINES THAT THE INVESTIGATION OF THE CHARGES

6 WILL NOT BE COMPLETED WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE

7 FILING OF THE CHARGES.

8 (II) A NOTICE OF RIGHT TO SUE CONSTITUTES A FINAL AGENCY


9 ACTION AND EXHAUSTION OF ADMINISTRATIVE REMEDIES AND

10 PROCEEDINGS PURSUANT TO THIS PART 10.

11 (9) A COMPLAINANT OR RESPONDENT CLAIMING TO BE AGGRIEVED


12 BY A FINAL AGENCY ACTION SUCH AS A FINAL ORDER OF THE COMMISSION

13 OR A REFUSAL TO ISSUE A FINAL ORDER MAY OBTAIN JUDICIAL REVIEW OF

14 THE COMMISSION'S FINAL AGENCY ACTION PURSUANT TO PROCEEDINGS

15 BROUGHT IN THE COURT OF APPEALS IN ACCORDANCE WITH SECTION

16 24-4-106.
17 24-34-1008. Division and commission subject to termination
18 - repeal of part. THIS PART 10 IS REPEALED, EFFECTIVE SEPTEMBER 1,
19 2031. BEFORE THE REPEAL, THIS PART 10 IS SCHEDULED FOR REVIEW IN
20 ACCORDANCE WITH SECTION 24-34-104.

21 SECTION 4. Act subject to petition - effective date -


22 applicability. (1) This act takes effect January 1, 2022; except that, if a
23 referendum petition is filed pursuant to section 1 (3) of article V of the
24 state constitution against this act or an item, section, or part of this act
25 within the ninety-day period after final adjournment of the general
26 assembly, then the act, item, section, or part will not take effect unless
27 approved by the people at the general election to be held in November

-19- SB21-132
1 2022 and, in such case, will take effect on the date of the official
2 declaration of the vote thereon by the governor.
3 (2) This act applies to conduct occurring on or after the applicable
4 effective date of this act.

-20- SB21-132

You might also like