Federal law prohibits users from suing social media companies over content removal, which tech companies have said is necessary to operate reasonably, and House Bill 441 would create a mechanism for private lawsuits.
Critics of HB 441 have said that social media platforms also have First Amendment rights and can choose what content is allowed on their platforms.
If Ohio’s bill passed, critics say that social media platforms would be penalized for removing harmful content such as pornography, extremist recruitment, medical misinformation, foreign propaganda and bullying.
Courts have blocked similar bills in Florida and Texas, and HB 441 would have the same outcome, they said.
While lawmakers consider that measure, another pending bill does the opposite. House Bill 376, known as the Ohio Personal Privacy Act, passed out of the Ohio House Government Oversight Committee on Wednesday and could be on the House floor in the coming days.
The bill would prevent individual Ohioans from suing businesses that violate their privacy by stating that only the Ohio attorney general can file lawsuits when privacy is breached.
Although HB 376 has broad support from the business community, critics say the bill contains broad exceptions for social media platforms and other businesses from being held accountable.
LARGE AND DOMINANT
In recent years, conservative lawmakers and pundits have made hay over social media companies deplatforming controversial figures for content that violates their policies. The most prominent example is Twitter’s permanent ban on former President Donald Trump for tweets he posted following the Jan. 6 riot.
Social media platforms like Facebook or Twitter argue that, as private companies, they are well within their rights to ban users and remove content they deem in violation of their terms of service, which the First Amendment — which only applies to government regulation of speech — would not protect.
HB441 would change that.
Rep. Scott Wiggam, a Wayne County Republican sponsoring HB 441, would reclassify social media companies as “common carriers” under Ohio law. Common carriers are businesses that provide services across a population and are regulated under the law differently than other businesses. Examples of common carriers are utilities, railroads and telephone companies.
Common carriers “include major and important infrastructure that all members of society rely upon, and which serve vital social, economic and cultural functions,” Wiggam said in a message.
“The First Amendment applies to speakers, like an individual or a newspaper, in a different way than it does to entities that host or transmit speech, such as a telephone company, a shopping mall or cable systems — as well as social media companies,” Wiggam argued. “As opposed to speakers, the state may place reasonable access and non-discrimination requirements on those that host speech.”
But critics say the requirements in HB 441 are not reasonable.
Steve DelBianco, president of NetChoice, an organization that advocates for limited government, competition and choice for the Internet and opposes HB 441, said that when people hold political signs at a shopping mall, members of the public understand that their views aren’t necessarily the same as the mall owners’ views.
That’s not the same for social media companies, he said. The public often associates the opinions that people post with the platforms themselves. For instance, businesses have cut advertising from YouTube and Facebook because users have posted content they don’t want to be associated with.
“Put simply, who a platform accepts as a user and what content the platform tolerates from that user reflect on the platform’s public image,” he wrote in a memorandum to lawmakers.
And even if social media platforms becomes classified as common carriers, he said common carriers also have First Amendment rights. For instance, an airline can kick someone off a plane for wearing a T-shirt with words it doesn’t like.
“You don’t lose First Amendment protections just because you’re a common carrier,” he said.
The Ohio bill and similar Texas and Florida bills are supported by a conservative think tank known as the Heartland Institute. NetChoice sued Texas and Florida and got preliminary injunctions blocking the state from enforcing the laws until the courts decide on the cases. However, the injunctions didn’t extend to individuals.
“Both Florida and Texas also created new private lawsuit mechanisms for their citizens, similar to HB 441,” DelBianco said. “But in both Florida and Texas, the strong injunction opinions have apparently dissuaded any private citizens from bringing a lawsuit in either of those states.”
The U.S. Supreme Court has previously ruled that states may protect First Amendment rights above the U.S. Constitution, as long as the state protections don’t conflict with the U.S. Constitution. But in this case, the First Amendment rights of the platforms would be violated, and federal law is supreme, DelBianco said.
The Columbus area is home to several data centers, including one owned by Facebook.
“Ohio rivals Northern Virginia for data centers, so the very same companies that would be subject to lawsuits under this law,” DelBianco said. “I get the politics, or some Republicans wanting this bill, but I wonder if Gov. DeWine would sign it into law when it slaps the very same companies that are investing billions in Ohio’s economy, especially when that law will be held unconstitutional.”
Cleveland.com/The Plain Dealer reached out to a spokesman for DeWine about the bill.
PRIVATE CITIZEN LAWSUITS
HB 441 isn’t the only bill to come out of a state legislature that sets up a mechanism for private citizen lawsuits.
Perhaps the most well-known example is the Texas abortion ban, which allows private citizens to sue abortion providers and others who help someone get an abortion for a bounty of at least $10,000. Legal analysts say citizen enforcement could spread in state legislatures across the U.S. to address other issues social conservatives dislike.
Ohio has already hopped on the trend.
During the current two-year session of the Ohio General Assembly, Republican lawmakers are sponsoring bills that give citizens the ability to sue.
Critics call it vigilante justice and a workaround attempt in the courts, which usually rule on whether legislation is constitutional or legal for the state to enforce. With states out of the picture, judges may uphold the bills.
Lawmakers are considering the following bills that create new avenues for private citizen lawsuits, in addition to HB 441:
- HB 480 is a Texas-style abortion ban that would allow individuals to sue Ohioans who get an abortion or those who help them in civil court for at least $10,000.
- House Bill 327 is a complicated bill essentially attempting to ban in K-12 schools and colleges the promotion of “divisive concepts,” a euphemism for critical race theory. The bill allows parents and guardians to sue a school, district or school employee if a student “is subjected to indoctrination of divisive concepts in order to receive a class grade or graduation credit.”
- House Bill 109 would increase riot penalties when people cause damage to property and people during protests. Tucked into the bill are provisions that allows police officers to sue in civil court people who injure them or their property or people who file a “false complaint” against the officer.
The ACLU of Ohio has numerous problems with HB 109. The legislation doesn’t describe whether a “complaint” is a verbal complaint a member of the public calls into the police department or if it’s a legal complaint filed in court. The bill also doesn’t explain how a complaint would be considered false, said Gary Daniels, the ACLU of Ohio’s chief lobbyist.
“Then end result is people will be afraid to file completely legitimate complaints against law enforcement for fear that it may be a ‘false complaint,’” Daniels said.
OHIO PERSONAL PRIVACY ACT
While it’s unknown yet how DeWine feels about HB 441, his administration is behind HB 376.
Lt. Gov. Jon Husted, who is over InnovateOhio, a state agency focused on technology, was at the announcement introducing the bill with its sponsors.
Privacy advocates have said U.S. is overdue for an update to privacy laws. Congress hasn’t meaningfully updated federal privacy laws for 20 years, and in that time, mobile devices and apps have exploded in the marketplace.
Current federal privacy laws, for instance, don’t unify personal data rights under one law, but instead segment people’s rights and business’ responsibilities by sector, such as the the Health Insurance Portability and Accountability Act, the Fair Credit Reporting Act and the Children’s Online Privacy Protection Rule, advocates said.
The U.S. lacks a national standard for when a company must notify people when there data is breached. If a company shares personal information with a third-party, there is no federal law requiring the third parties to share with people when their data has been further sold, advocates say.
“Without action in this space on the federal level, it’s important that our state take the lead,” Husted said in announcing the Ohio bill. “The Ohio Personal Privacy Act implements the necessary tools to keep Ohioans’ data safe and gives them control over their digital presence.”
It’s unlikely, however, that the Ohio bill will create the toughest protections that privacy advocates call for.
HB 376 would apply to any company that does business in Ohio with gross annual revenue exceeding $25 million. Companies would also have to comply if they process personal data of 100,000 or more consumers or make 50% or more of gross revenue from the sale of personal data of at least 25,000 or more customers.
Under the bill:
- Consumers would have a right to know what personal data certain businesses collect, a right to access that data, a right to request corrections, a right to request data be deleted and a right to request personal data not be sold.
- Businesses would have to create and make available privacy policies describing how personal data is collected, used and sold.
- The Ohio attorney general would be the sole entity authorized to sue or investigate violations of the bill. The bill specifies consumers can’t bring lawsuits against businesses. The Attorney General’s office would get $250,000 to enforce the bill.
Gary Daniels, the chief lobbyist of the ACLU of Ohio, said that there are numerous ways businesses can avoid getting sued for violating people’s privacy.
The attorney general is prohibited from enforcing the bill if the company sends the attorney general a written statement that the alleged violations have been fixed and that no further violations will occur.
“So it just seems to shut off all further meaningful inquiry by the attorney general at that point if you just have to submit this letter and say, ‘Hey, either we haven’t done it, or we have done it, and now we’ve corrected that,’” Daniels said.” I don’t know how exactly you would confirm that as the attorney general.”
Ohio attorney general records about alleged privacy violations — and whether the attorney general took action on them — would not be subject to the state’s public records law unless there are “enforcement proceedings” or the company consents to revealing details in writing. That means reporters, attorneys and other citizens would be unable to find patterns and problems.
“Ordinarily, the attorney general can issue subpoenas at a certain point in the process, and it takes away that authority, too,” Daniels said.
Proponents of the bill include the Ohio Chamber of Commerce, Ohio Business Roundtable, Zillow, Ohio Bankers League and Ohio Credit Union League. Apple Inc., AT&T, Charter Communications, Citigroup, Comcast, Equifax, Lyft, Facebook owner Meta, Microsoft Corp. and Visa, Inc. have also registered with the state as lobbying on the bill.
“The bill needs to be substantially improved before it is enacted; otherwise, it would risk locking in industry-friendly provisions that avoid actual reform, including reform of major companies like Facebook, Google and Amazon,” testified Maureen Mahoney, a Consumer Reports senior policy analyst.
While HB 441 grants people the authority to file lawsuits against Big Tech and HB 376 takes it away, there are lawmakers sponsoring both bills: Republican Reps. Sara Carruthers of the Cincinnati area, Gary Click of Sandusky County, Thomas Hall of the Cincinnati area, Phil Plummer of the Dayton area and Jean Schmidt of the Cincinnati area.
Similar versions of HB 376 have been introduced in over 20 other states, including Colorado, California and Virginia.
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