Prohibits interactive computer service providers from knowingly promoting content to a targeted user and with the intention of developing the content, cause the user extreme emotional harm, physical injury or financial injury.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1108
SPONSOR: Vanel
 
TITLE OF BILL:
An act to amend the general business law, in relation to prohibiting
interactive computer service providers from knowingly developing or
promoting content that is dangerous or injurious
 
PURPOSE OR GENERAL IDEA OF BILL:
Provides remedies for any person when an interactive computer service
provider causes extreme emotional harm, physical injury, financial inju-
ry, or another type of foreseeable, severe, cognizable injury.
 
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 messages" is. It also
provides the elements for determining interactive computers service
provider liability and the type of liability they will incur if they
violate 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 modern 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. However, when they "devel-
op, in whole or in part," content, they lose their protection under
Section 230. This bill aims to hold interactive computer service provid-
ers 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 user sees in the user-generated material. Instead, the
message becomes the underlying message that the interactive computer
service provider is aiming to communicate to a user. This is because
targeting specific people with specific content necessitates sending a
specialized, targeted message that, while comparable to the information
being delivered, is uniquely crafted for the targeted user. For example,
if a social media platform promotes third-party generated content that
encourages eating disorders to a targeted user the third-party generated
content may expressly state a message encouraging such a disorder, but
if that message, along with many others, is delivered to a figure-cons-
cious person around dinner time (which the interactive computer service
provider knows about because they determined their individual character-
istics, 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 provid7
ers responsible exclusively for generating messages that cause the kind
of injuries specified by the act. The act is not intended to hold inter-
active computer service providers responsible for targeting users with
content based only on their location and/or time data, because such
information cannot, without more, be employed in any exploitative or
inflammatory way. Furthermore, 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 user.
Prominent examples of injury are covered by this act. These include
content which causes extreme emotional harm, physical harm, financial
harm, and other foreseeable, severe, and cognizable harms.
Extreme emotional harm varies from person to person; nevertheless, as
previously indicated, an interactive computer service provider knows who
they are targeting and sends specific messages to specific people for
specific reasons. As a result, the interactive computer service provider
will inevitably know exactly who they are targeting and will be able to
anticipate that person's unique triggers. As a result, they can antic-
ipate the sort of reaction that the promoted material would elicit with
near certainty using their large collection of unique identifiers and
statistical data.
This act also covers physical injury, whether self-inflicted or other-
wise. This would make an interactive computer service provider liable
for any harm caused by the content shown to the user, such as content
that the interactive computer service provider knows will cause severe
fright in a person or exacerbate a known condition - such as seizures
and self-inflicted injury caused by the aforementioned severe emotional
harm. Additionally, it covers an interactive computer service provider
both causing and exacerbating addiction, such as with alcohol, drugs,
products, services, and other types of addictions that can harm a
person.
This act also covers financial harm, whether self-inflicted or other-
wise, in the same manner as it covers physical injury. This would
include gambling addictions, addictions to risking one's finances in
speculative assets like stocks, cryptocurrency, and other forms of
investment, promoting scams and other predatory businesses like high-in-
terest-rate lenders and get-richquick schemes and courses that they know
the targeted user is likely to spend their money on, and any other type
of financial injury that is foreseeable based upon the interactive
computer service provider's known characteristics and the targeting of
the user.
Finally, the last part addresses any type of foreseeable, severe, and
cognizable harm resulting from the promotion of a developed message.
These types of injuries are not considered emotional, physical, or
financial injuries, and should be assessed on a case-by-case basis based
on how foreseeable, severe, and cognizable the harm was. An interactive
computer service provider inciting someone to commit acts of political
violence against others, for example, might be considered an injury
under the act in both the victim and the perpetrator of the crime in
some circumstances, while in others it might not.
 
PRIOR LEGISLATIVE HISTORY:
12/13/21 referred to consumer affairs and protection, 1/05/22 referred
to consumer affairs and protection
 
FISCAL IMPLICATIONS:
TBD
 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law.
STATE OF NEW YORK
________________________________________________________________________
1108
2023-2024 Regular Sessions
IN ASSEMBLY
January 13, 2023
___________
Introduced by M. of A. VANEL -- read once and referred to the Committee
on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to prohibiting
interactive computer service providers from knowingly developing or
promoting content that is dangerous or injurious
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The general business law is amended by adding a new section
2 394-cccc to read as follows:
3 § 394-cccc. Interactive computer service; developing injurious
4 content. 1. As used in this section, the following terms shall have the
5 following meanings:
6 (a) "Interactive computer service" means a service provider, which,
7 for profit-making purposes operates an internet platform that is
8 designed to disseminate public content generated by a third-party;
9 (b) "Content" means the textual, visual or aural information that is
10 generated by a third-party or the interactive computer service provider;
11 (c) "Promote" means to present or otherwise convey third-party-gener-
12 ated or interactive computer service provider-generated content to a
13 target user;
14 (d) "User" means any person who is located in the state who utilizes
15 an interactive computer service provider's platform;
16 (e) "Platform" means an application or website developed by an inter-
17 active computer service provider that acts as an intermediary between
18 users and a third-party to disseminate content;
19 (f) "Target user" means a person who uses an interactive computer
20 service and whom the interactive computer service provider targets for
21 the purpose of sending a developed message; and
22 (g) "Target, targets, targeted, or targeting" means conveying content
23 to a target user solely on the basis of their personal data which
24 includes, but is not limited, to a target user's:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03781-01-3
A. 1108 2
1 (i) location data, whether general or precise, including: (A) the
2 time of day in the user's current or predicted future location; (B) the
3 weather in the user's current or predicted future location; (C) the
4 local businesses in the user's current or future predicted location; (D)
5 the natural, artificial, or planned events in the user's current or
6 future predicted location; (E) political preferences in the user's
7 current or future predicted location; and/or (F) landmarks in the user's
8 current or future predicted location;
9 (ii) income related activities, including the user's: (A) income
10 level; (B) profession; (C) employment status; (D) source of income;
11 and/or (E) investments;
12 (iii) relationship status, including whether the user is: (A) single;
13 (B) married; (C) divorced; (D) engaging in an affair; (E) in a domestic
14 partnership; (F) engaged; (G) in a romantic or intimate social relation-
15 ship; and/or (H) contemplating or is in the process of terminating a
16 relationship;
17 (iv) social status, including whether the user: (A) is a public offi-
18 cial; (B) is a public figure; (C) is a limited purpose public figure;
19 (D) is involuntarily thrust into the public domain; (E) receives a
20 significant amount of engagements on the interactive computer service
21 provider's platform; and/or (F) receives an insignificant amount of
22 engagements or is within a specific threshold of engagements on the
23 interactive computer service provider's platform;
24 (v) psychological profile, whether generated based on psychological
25 conditions set by the interactive computer service provider, or unique
26 or generally accepted psychological conditions;
27 (vi) veteran status, including whether the user: (A) has served in the
28 armed forces of the United States or another country; (B) is currently
29 serving in the armed forces of the United States or another country; (C)
30 has been discharged, whether honorably, for medical reasons or other-
31 wise; and/or (D) is not a veteran nor a member of the armed forces of
32 the United States or another country;
33 (vii) medical condition or status, including the user's: (A) mental
34 state; (B) physical state; (C) emotional state; and/or (D) frequency of
35 their receipt of medical care;
36 (viii) sex;
37 (ix) gender;
38 (x) national origin;
39 (xi) age;
40 (xii) race;
41 (xiii) religion; and/or
42 (ix) familial demographics, including: (A) whether the user is preg-
43 nant or expecting a child; (B) the demographic makeup of the user's
44 family; (C) the number of people in the user's family; (D) the emotional
45 relationship between family members; and/or (E) an immediate or distant
46 relative's social status, veteran status, medical status or psycholog-
47 ical profile, relationship status, income related activities, income
48 level, location data, age, sex, gender, race, national origin, religion,
49 or familial status as described in this paragraph;
50 (h) "Developed" or "Developing" shall mean:
51 (i) the interactive computer service provider generating or altering
52 visible portions of content or a group of content; or
53 (ii) the interactive computer service provider sufficiently altering
54 the meaning of content or a group of content generated by third parties
55 through the calculated targeting of the specific person such that a new
A. 1108 3
1 message is deemed to be created by the interactive computer service
2 provider.
3 2. An interactive computer service provider that conducts business in
4 this state shall not knowingly:
5 (a) promote any content to a targeted user; and
6 (b) with the intention of developing the content, cause: (i) extreme
7 emotional harm; (ii) physical injury, including self-inflicted injury or
8 injury resulting from addiction whereby the content being promoted
9 created the addiction or encouraged such user to indulge in their
10 addiction; (iii) financial injury, including self-inflicted financial
11 injury and financial injury resulting from addiction whereby the content
12 being promoted created the addiction or encouraged such user to indulge
13 in their addiction; or (iv) any other severe, cognizable injury that the
14 interactive computer service provider could reasonably foresee would
15 occur as a result of them promoting the developed message.
16 3. Any interactive computer service provider who willfully violates
17 any provision of this section shall be liable in a civil action to a
18 target user for any actual, physical or emotional harm incurred from
19 such violation and incur a civil penalty of up to ten thousand dollars
20 for each offense. In making a determination of any violation pursuant to
21 this section, the attorney general may take and make a determination on
22 the relevant facts, and issue subpoenas in accordance with the civil
23 practice law and rules.
24 4. Nothing in this section shall be construed as: (a) an obligation
25 imposed on an interactive computer service provider that adversely
26 affects the rights or freedoms of any persons including exercising the
27 right of free speech granted by the New York state constitution or the
28 United States Constitution; (b) creating any liability for an interac-
29 tive computer service provider for promoting content to non-target users
30 based solely on their location and/or time data; (c) creating any
31 liability for an interactive computer service provider for promoting
32 content that is not sufficiently developed to be deemed a violation of
33 the provisions of subdivision two of this section; or (d) creating any
34 liability for an interactive computer service provider for promoting
35 injurious developed content in another state.
36 § 2. This act shall take effect on the one hundred eightieth day after
37 it shall have become a law.