House Staff Analysis: PCB COM 21-02 Public Records (Commerce Committee)

Summary

A House of Representatives staff analysis of PCB COM 21-02, a Public Records bill sponsored by the Commerce Committee, dated February 28, 2021. The analysis explains that the bill is linked to PCB COM 21-01, which sets requirements for social media platforms that restrict user speech and lets the Department of Legal Affairs (DLA) act on antitrust determinations. The bill makes information received in those DLA investigations confidential and exempt while an investigation is active, and keeps listed categories exempt afterward, including personal information, computer forensic reports and proprietary information. It includes background on Section 230 and state procurement lists, a section directory for Sections 1 to 4, a fiscal analysis and a note that final passage requires a two-thirds vote under Article I, section 24(c) of the Florida Constitution.

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                                    HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     PCB COM 21-02 Public Records
SPONSOR(S): Commerce Committee
TIED BILLS:      IDEN./SIM. BILLS:

    REFERENCE                                                        ACTION                   ANALYST              STAFF DIRECTOR or
                                                                                                                   BUDGET/POLICY CHIEF

    Orig. Comm.: Commerce Committee                                                           Wright               Hamon

                                                         SUMMARY ANALYSIS
A section of the Federal Communications Decency Act (Section 230) provides immunity from liability for
information service providers and social media platforms that, in good faith, remove or restrict from their
services information deemed “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected.” While this immunity has fostered the
growth of certain parts of the internet, recently, there have been criticisms of the broad federal immunity
provision due to actions taken or not taken regarding the censorship of users by internet platforms.
Government regulators have recently investigated and initiated cases against certain platforms for antitrust
activities.

PCB COM 21-01, to which this bill is linked, requires social media platforms to meet certain requirements when
they restrict speech by users. If a social media platform fails to meet such requirements, the Department of
Legal Affairs (DLA) may bring an action against the social media platform under the Florida Deceptive and
Unfair Trade Practices Act. The bill also allows DLA to determine if a social media platform has likely
committed an antitrust violation based on a case brought by a governmental entity. If such a determination is
made, the social media platform is prohibited from contracting for services with public entities.

This bill, which is linked to the passage of PCB COM 21-01, provides records exemptions for information
collected for DLA investigations into:
     whether a social media platform has committed an antitrust violation based on a case brought by a
        governmental entity, and
     whether a social media platform has failed to meet certain requirements before restricting speech by
        users.

Once an investigation is completed, only the following information received by DLA will remain confidential and
exempt:
    All information to which another public records exemption applies,
    Personal information,
    A computer forensic report,
    Information that would otherwise reveal weaknesses in a business's data security, and
    Information that would otherwise disclose a business's proprietary information.

Per the Open Government Sunset Review Act, this exemption will be automatically repealed on October 2,
2027, unless reenacted by the Legislature.

The bill will become effective on the same date that PCB COM 21-01 (2021) or similar legislation takes effect,
if such legislation is adopted in the same legislative session or an extension thereof and becomes law.

Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created or expanded public record or public meeting
exemption. The bill expands a public record exemption; thus, it requires a two-thirds vote for final
passage.




This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: pcb02.COM
DATE: 2/28/2021
                                                         FULL ANALYSIS

                                                 I. SUBSTANTIVE ANALYSIS

    A. EFFECT OF PROPOSED CHANGES:
         Public Records

          Article I, section 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
          government records. This section guarantees every person a right to inspect or copy any public record
          of the legislative, executive, and judicial branches of government. The Legislature, however, may
          provide by general law for the exemption of records from the requirements of article I, section 24(a) of
          the Florida Constitution.1 The general law must state with specificity the public necessity justifying the
          exemption2 and must be no broader than necessary to accomplish its purpose.3

          Public policy regarding access to government records is addressed further in s. 119.07(1)(a), F.S.,
          which guarantees every person a right to inspect and copy any state, county, or municipal record,
          unless the record is exempt. Furthermore, the Open Government Sunset Review Act 4 provides that a
          public record or public meeting exemption may be created or maintained only if it serves an identifiable
          public purpose. In addition, it may be no broader than necessary to meet one of the following purposes:
              Allow the state or its political subdivisions to effectively and efficiently administer a
                  governmental program, which administration would be significantly impaired without the
                  exemption.
              Protect sensitive personal information that, if released, would be defamatory or would
                  jeopardize an individual’s safety; however, only the identity of an individual may be exempted
                  under this provision.
              Protect trade or business secrets.5

          The Open Government Sunset Review Act requires the automatic repeal of a newly created public
          record exemption on October 2nd of the fifth year after creation or substantial amendment, unless the
          Legislature reenacts the exemption.6

          Technology Transparency

         Section 230 of the federal Communications Decency Act provides that internet platforms cannot be
         held liable on account of any action voluntarily taken in good faith to restrict access to or availability of
         material that the internet platform considers to be obscene, lewd, lascivious, filthy, excessively violent,
         harassing, or otherwise objectionable, whether or not such material is constitutionally protected.7

          Recently, there have been criticisms of the broad federal immunity provisions for internet platforms that
          restrict the speech of their users. While this immunity has fostered the free flow of ideas on the internet,
          critics have argued that the immunity provisions shield publishers from liability for harmful content or
          political censorship.8



          Antitrust and Internet Platforms


1 Art. I, s. 24(c), FLA. CONST.
2 This portion of a public record exemption is commonly referred to as a “public necessity statement.”
3 Art. I. s. 24(c), FLA. CONST.
4 S. 119.15, F.S.
5 S. 119.15(6)(b), F.S.
6 S. 119.15(3), F.S.
7 47 U.S.C. § 230(c).
8 Zoe Bedell and John Major, What’s Next for Section 230? A Roundup of Proposals Lawfare, (July 29, 2020)

https://www.lawfareblog.com/whats-next-section-230-roundup-proposals (last visited Feb. 25, 2021).

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        Critics have argued for years that internet platforms like Google, Apple, Facebook and Amazon built
        sprawling empires over commerce, communications and culture, and then abused their growing power.
        Recently, federal and state regulators have been investigating and bringing antitrust cases against
        them.9 For example, the FTC and over 40 states, including Florida, have brought an action against
        Facebook for allegedly buying smaller rivals to maintain market dominance.10 Also, DOJ and 11 states,
        including Florida, have brought an action against Google for allegedly manipulating search engine
        results.11

        Procurement of Commodities and Services

        Chapter 287, F.S., regulates state agency12 procurement of personal property and services. The
        Department of Management Services (DMS) is statutorily designated as the central executive agency
        procurement authority and its responsibilities include overseeing agency implementation of the
        procurement process,13 creating uniform agency procurement rules,14 implementing the online
        procurement program,15 and establishing state term contracts.16

        Certain persons and their affiliates are prohibited from contracting with public entities for services and
        goods, with certain exceptions, if they have been identified by DMS as violating certain restrictions and
        have been placed on one of the following lists:17
            Convicted Vendor List,
            Discriminatory Vendor List,
            Scrutinized Companies with Activities in Sudan List,
            Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, and
            Scrutinized Companies that Boycott Israel List.

        PCB COM 21-01 (2021)

        PCB COM 21-01, to which this bill is linked, requires social media platforms to meet certain
        requirements when they restrict speech by users. If a social media platform fails to meet such
        requirements, DLA may bring an action against the social media platform under the Florida Deceptive
        and Unfair Trade Practices Act.

        PCB COM 21-01 also allows DLA to determine if a social media platform has likely committed an
        antitrust violation based on a case brought by a governmental entity. If such a determination is made,
        the social media platform is prohibited from contracting for services with public entities and placed on
        the Antitrust Violator Vendor List.



        Effect of the Bill

        The public records exemptions in the bill apply to DLA investigations into:


9 David McCabe, Cecilia Kang, and Daisuke Wakabayashi, Google’s Legal Peril Grows in Face of Third Antitrust Suit,

New York Times (Dec. 17, 2020), https://www.nytimes.com/2020/12/17/technology/google-antitrust-monopoly.html (last
visited Feb. 25, 2021).
10 Id; Federal Trade Commission v. Facebook, Inc., No. 1:20-cv-03590 (D.C. Cir. 2020).
11 McCabe, supra note 52; United States Department of Justice v. Google LLC, No. 1:20-cv-03010 (D.C. Cir. 2020).
12 Section 287.012(1), F.S., defines the term “agency” as any of the various state officers, departments, boards,

commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive
branch of state government. “Agency” does not include the university and college boards of trustees or the state
universities and colleges.
13 See ss. 287.032 and 287.042, F.S.
14 See ss. 287.032(2) and 287.042(3), (4), and (12), F.S.
15 See s. 287.057(23), F.S.
16 See ss. 287.042(2), 287.056, and 287.1345, F.S.
17 Ss. 287.133-135, F.S.
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              whether a social media platform has committed an antitrust violation based on a case brought
               by a governmental entity, and
              whether a social media platform has failed to meet certain requirements or improperly restricted
               speech by users.

       The bill provides that all information received by DLA pursuant to an investigation is confidential and
       exempt, until such time as the investigation is completed or ceases to be active.

       During an active investigation, information made confidential and exempt may be disclosed by the DLA:
           In the performance of its official duties and responsibilities; or
           To another governmental entity in performance of its official duties and responsibilities.

       Once an investigation is completed or once an investigation ceases to be active, the following
       information received by DLA will remain confidential and exempt:
            All information to which another public records exemption applies,
            Personal information,
            A computer forensic report,
            Information that would otherwise reveal weaknesses in a business's data security, and
            Information that would otherwise disclose a business's proprietary information.

       The term "proprietary information" means information that:
           Is owned or controlled by the business,
           Is intended to be private and is treated by the business as private because disclosure would
              harm the business or its business operations,
           Has not been disclosed except as required by law or a private agreement that provides that the
              information will not be released to the public,
           Is not publicly available or otherwise readily ascertainable through proper means from another
              source in the same configuration as received by DLA, and
           Includes trade secrets and competitive interests.

       The bill’s provisions are subject to the Open Government Sunset Review Act and will stand repealed on
       October 1, 2026, unless reviewed and saved from repeal through reenactment by the Legislature.

       The bill will become effective on the same date that PCB COM 21-01 (2021) or similar legislation takes
       effect, if such legislation is adopted in the same legislative session or an extension thereof and
       becomes a law.

   B. SECTION DIRECTORY:

       Section 1:     Creates a public records exemption for investigations related to s. 287.137, F.S.
       Section 2:     Creates a public records exemption for investigations related to s. 501.2041, F.S.
       Section 3:     Provides a public necessity statement as required by the Florida Constitution.
       Section 4:     Provides an effective date of the same date that PCB COM 21-01 (2021) or similar
                      legislation takes effect, if such legislation is adopted in the same legislative session or an
                      extension thereof and becomes law.




                          II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

   A. FISCAL IMPACT ON STATE GOVERNMENT:

       1. Revenues:
           None.
STORAGE NAME: pcb02.COM                                                                                      PAGE: 4
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       2. Expenditures:
           The bill may have a fiscal impact on agencies responsible for complying with public records
           requests and redacting confidential and exempt information prior to releasing a record.

   B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

       1. Revenues:
           None.

       2. Expenditures:
           None.

   C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
       None.

   D. FISCAL COMMENTS:
       None.

                                               III. COMMENTS

   A. CONSTITUTIONAL ISSUES:

       1. Applicability of Municipality/County Mandates Provision:
         Not applicable. This bill does not appear to require counties or municipalities to take action requiring
         the expenditure of funds, reduce the authority that counties or municipalities have to raise revenue in
         the aggregate, nor reduce the percentage of state tax shared with counties or municipalities.

       2. Other:
         Vote Requirement

         Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
         and voting for final passage of a newly created or expanded public record or public meeting
         exemption. The bill expands a public record exemption; thus, it requires a two-thirds vote for final
         passage.

         Public Necessity Statement

         Article I, section 24(c) of the Florida Constitution requires a public necessity statement for a newly
         created or expanded public record or public meeting exemption. The bill expands a public record
         exemption; thus, it includes a public necessity statement.

         Breadth of Exemption

         Article 1, section 24(c) of the Florida Constitution requires a newly created or expanded public record
         or public meeting exemption to be no broader than necessary to accomplish the stated purpose of
         the law. The bill creates a public records exemption for sensitive investigative materials, which does
         not appear to be broader than necessary to accomplish its purpose.

   B. RULE-MAKING AUTHORITY:
       None.

   C. DRAFTING ISSUES OR OTHER COMMENTS:

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       None.

                          IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES




STORAGE NAME: pcb02.COM                                                  PAGE: 6
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