Existing law, the Uniform Controlled Substances Act, classifies controlled substances into 5 schedules, and places the greatest restrictions and penalties on the use of those substances placed in Schedule I. Existing law prohibits various actions related to those substances, including their sale, possession, transportation, manufacture, or cultivation.

This bill would impose criminal liability and civil penalties on a social media company that operates a social media platform on which users offer controlled substances for sale. The bill would impose increased liability if, as a result of a sale of a controlled substance that occurred because of an offer made on a social media platform, an individual suffered an overdose or died. The bill would additionally impose daily civil penalties for each day that users offer controlled substances for sale on a social media platform. By expanding the scope of criminal liability, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: March 19, 2024

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON

Kevin McCarty, Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Creates a new crime of operating a social media platform on which users offer controlled substances for sale. Specifically, this bill:

1. Defines “social media company” as a person or entity that owns or operates one or more social media platforms.
   
2. Provides that it is a misdemeanor for a social media company to operate a social media platform on which users offer controlled substances for sale. This offense would be punished by up to six months imprisonment in the county jail, or by fine up to $1,000, or by both.
   
3. Increases the penalty to a wobbler if an individual overdoses and requires medical care because of the violation. This offense would be punished as a misdemeanor by imprisonment in the county jail for up to one year, or as a felony by imprisonment in the county jail for 16 months, two or three years.
   
4. Increases the penalty to felony if an individual dies because of the violation. This offense would be punished by imprisonment in state prison for two, three, or six years.
   
5. Imposes civil penalties, as specified.^[1]
   
6. Exempts authorized cannabis sales, as specified.
   

EXISTING FEDERAL LAW:

1. States that no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content provider. No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this provision. (47 U.S.C., §§ 230, subds. (c)(1), (e)(3).)
   
2. Provides that it is unlawful for any person to knowingly or intentionally use the Internet to advertise sale of, or to offer to sell, distribute, or dispense, a controlled substance, except as specified. A person is not prohibited from advocating the use of a controlled substance. (21 U.S.C. § 829(c)(2)(A)-(C).)
   
3. Provides that Congress shall make no law abridging the freedom of speech. (U.S. Const. Amend. I.)
   

EXISTING STATE LAW:

1. Provides that every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech. (Cal. Const., art. I § 2, subd. (a).)
   
2. Defines “Social media company” as a person or entity that owns or operates one or more social media platforms. (Bus. & Prof. Code, § 22675, subd. (d).)
   
3. Defines “Person” as any person, firm, association, organization, partnership, business trust, corporation, limited liability company, or company. “Person” includes a corporation as well as a natural person. (Health & Safe. Code, § 19; Pen. Code, §§ 7.5, 7.)
   
4. Defines “Social media platform” as an internet-based service or application that has users in California and substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application and allows its users to do all of the following:
   
   1. Construct a public or semipublic profile for purposes of signing into and using the service or application;
      
   2. Populate a list of other users with whom an individual shares a social connection within the system; and,
      
   3. Create or post content viewable by other users, including, but not limited to, on message boards, in chat rooms, or through a landing page or main feed that presents the user with content generated by other users. (Bus. & Prof. Code, § 22675, subd. (e).)
      
5. Establishes social media content moderation requirements for social media companies. (Bus. & Prof. Code, § 22675-22681.)
   
6. Requires social media companies to post terms of service (TOS) in a manner reasonably designed to inform users of the existence and contents of the TOS. (Bus. & Prof. Code, § 22676.)
   
7. Requires social media companies to submit to the Attorney General (AG), on a semiannual basis, a TOS report that must include, among other things, a statement of the company’s policies on controlled substance distribution and a detailed description of content moderation policies including, among other things, how the company would remove individual pieces of content, users, or groups that violate the TOS, or take broader action against individual users or against groups of users that violate the TOS. (Bus. & Prof. Code, § 22677.)
   
8. Requires a social media platforms that operate in the state to create and publicly post a policy statement that includes, among other things, their policy pertaining to the illegal distribution a controlled substance and a link to the social media platform’s reporting mechanism for illegal or harmful content or behavior. (Bus. & Prof. Code, § 22945.)
   
9. Authorizes a person to seek an order requiring a social media platform to remove content that includes an offer to transport, import into this state, sell, furnish, administer, or give away a controlled substance. (Bus. & Prof. Code, § 22945.5.)
   
10. Establishes the Fentanyl Misuse and Overdose Prevention Task Force, to, among other things, evaluate strategies to improve coordination and collaboration between social media platforms, public health entities, and law enforcement. (Health & Safe. Code, § 11455.)
    
11. Defines “Controlled substance,” as a drug, substance, or immediate precursor enumerated in any of the Schedules listed in the Health and Safety Code. (Health & Safe. Code, § 11007.)
    
12. Enumerates controlled substances in Schedule I through Schedule V of the Health and Safety Code. (Health & Safe. Code, §§ 11053 – 11059.)
    
13. Prohibits the possession and sale of controlled substances. (Health & Safe. Code, §§ 11350 – 11392.)
    
14. Provides that possession of a controlled substance that is a narcotic for sale is a felony punishable by imprisonment in the county jail for two, three, or four years. (Health & Safe. Code, § 11351.)
    
15. Provides that selling, or offering to sale, a controlled substance that is a narcotic is a felony, punishable by imprisonment in the county jail for three, six, or nine years. (Health & Safe. Code, § 11352.)
    
16. Provides that possession of a controlled substance that is not a narcotic for sale is a felony, punishable by imprisonment in county jail for 16 months, or two or three years. (Health & Safe. Code, § 11378.)
17. Provides that selling or offering to sale a controlled substance that is not a narcotic is a felony, punishable by imprisonment in the county jail for two, three, or four years. (Health & Safe. Code, § 11379.)
    
18. Provides that every person over 18 who offers to sell or give any controlled substance to a minor is guilty of a felony, punishable by imprisonment in the state prison for three, six, or nine years. (Health & Safe. Code, § 11353.)
    
19. Provides that, opening or maintaining any place for the purpose of unlawfully selling, giving away, or using any specified controlled substance is a misdemeanor punishable by imprisonment in the county jail for not more than one year or as a felony punishable by imprisonment in the state prison. (Health & Safe. Code, § 11366.)
    
20. Provides that a person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony, or attempted commission of a felony, shall be punished by an additional and consecutive term of imprisonment in state prison for three years. (Pen. Code, § 12022.7, subd. (a).)
    
21. Requires that a person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony, or attempted commission of a felony, which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature to be punished by an additional and consecutive term of imprisonment in the state prison for five years. (Pen. Code, § 12022.7, subd. (b).)
22. States that, except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both. (Pen. Code, § 19.)
    
23. Requires, to constitute a crime, a unity of act and intent. (Pen. Code, § 20.)
    

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Across California and the United States the story of overdose has changed. More and more, the victims of overdose are teens and young people who bought counterfeit pills tainted with fentanyl on social media. At the same time, social media companies are making billions of dollars from their underage users. In 2022, one social media company had approximately 18 million users under the age of 18 in the United States and made over $2.1 billion dollars from advertising to that age group. The Legislature has taken steps to target fentanyl dealers but social media platforms give dealers easy access to adolescents and features like encrypted or disappearing messages offer them privacy. If this was happening in a physical location, law enforcement and the Legislature would immediately take action but, because it’s happening on social media, the market has been allowed to thrive. AB 1800 will help shut down the social media drug market and ensure that social media companies are held accountable for facilitating the spread of deadly drugs.”
   
2. This Bill is Likely Preempted by Section 230 of the Communications Decency Act, 47 U.S.C. § 230: The United States Constitution’s Supremacy Clause provides that federal law is “the supreme Law of the Land.” (U.S. Const., art. VI, cl.2.) This language is the foundation for the doctrine of federal preemption, according to which federal law supersedes conflicting state laws. (Gade v. Nat’l Solid Wastes Mgmt. Ass’n (1992) 505 U.S. 88, 108.)
   

This bill is likely preempted by Section 230 of the federal Communications Decency Act. (47 U.S.C. § 230.) Section 230 provides federal immunity to providers of interactive computer services, including social media platforms. The statute generally precludes providers from being held liable for information provided by another person.

In enacting Section 230, Congress recognized that online services could not possibly monitor the massive volume of third-party content hosted on their sites. To ensure that online services would remain willing to accept such content, Congress barred imposing liability on such services arising from their carrying of that content. Under Section 230’s terms: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The federal law further states, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” (47 U.S.C. § 230, subd. (e)(3).)

As the Ninth Circuit states, the question that Section 230 asks is “whether the duty that the plaintiff alleges the defendant violated derives from the defendant’s status or conduct as a ‘publisher or speaker’ [of third-party content]. If it does, section 230(c)(1) precludes liability.” (Barnes v. Yahoo!, Inc. (9th Cir. 2009) 570 F.3d 1096, 1101–02.) A state law would violate Section 230 by treating service providers or users as the publisher of another person’s content. (Compare, e.g., HomeAway.com, Inc. v. City of Santa Monica (9th Cir. 2019) 918 F.3d 676, 683 [holding that an ordinance regulating home rentals is not inconsistent because it would not impose a duty on websites to monitor third-party content], with, e.g., Backpage.com, LLC v. McKenna (W.D. Wash. 2012) 881 F. Supp. 2d 1262, 1273 [holding that a state criminal law is inconsistent with and therefore expressly preempted by Section 230 if it would impose liability on websites for third-party content].)

This bill seeks to impose criminal liability upon social media companies for third-party content that includes offers to sell controlled substances. In so doing, this bill would impermissibly treat the social media company as the publisher or the speaker by making them criminally liable for speech made by someone else on their platform. Section 230 expressly preempts claims that treat the social media provider as the publisher of “information provided by another information content provider.” (47 U.S.C. § 230, subd. (c)(1), (e)(3).)

Preemption is particularly likely here, as the bill seeks to impose upon social media companies the very obligations that Congress recognized were impossible—monitoring a staggering amount of third-party content, and identifying and prohibiting such content that is related to the sale of controlled substances, before it is ever published on the platform. A line of court precedent bars the imposition of such obligations. (E.g., Zeran v. Am. Online, Inc. (4th Cir. 1997) 129 F.3d 327, 330–31; Green v. Am. Online (AOL) (3d Cir. 2003) 318 F.3d 465, 471.)

In background material submitted by the Author, the Author claims that, “the 9th circuit ruled in Lemmon v. Snap (2021) that Snapchat is not immune from responsibility because features of the app encourage dangerous behavior” and that “product liability suggests social media companies can be held liable for features known to attract illegal activity.” Reliance on Lemmon v. Snap is inapposite as it concerns the design of the application developed by the social media company, not content made by its third-party users.

In Lemon, the surviving parents of two boys who died in a high-speed accident alleged that Snap, Inc. encouraged their sons to drive at dangerous speeds and caused the boys’ deaths through its negligent design of its smartphone application Snapchat. (Lemmon v. Snap (9th.Cir. 2001) 995 F. 3d 1085.) To determine whether Section 230 applied to immunize Snap, Inc. from the plaintiffs’ claims, the court held that the plaintiffs’ claim did not treat Snap, Inc. as a “publisher or speaker” because the plaintiffs’ claims turned on Snap, Inc.’s design of Snapchat, with a defect (the interplay between Snapchat’s reward system and its Speed Filter). (Ibid.) The duty to design a reasonably safe product was fully independent of Snap, Inc.’s role in monitoring or publishing third-party content. (Ibid.) The court also held that the plaintiffs had not relied on “information provided by another information content provider.” (Ibid.) In short, Snap, Inc. was sued for the predictable consequences of designing Snapchat in such a way that it allegedly encouraged dangerous behavior. (Ibid.) Accordingly, the panel concluded that Snap, Inc. did not enjoy immunity from a product liability suit under Section 230. (Ibid.) Unlike the claims in Lemmon, this bill involves third-party content—specifically speech made by third-party users on the platform. (Ibid.) Accordingly, this bill is likely preempted by Section 230.

1. This Bill Would Create Strict Liability Offenses: One of the most basic tenets of our justice system is that no one should be subject to a criminal conviction unless they acted with a criminal intent. A nexus between a guilty mind and the wrongful act provides a moral justification for punishment. (See, e.g., Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Liability (2000) 88 Cal. L. Rev. 931.)
   
   California’s general mens rea statute, Penal Code section 20, states, “[i]n every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.” The modern trend is to require proof of a guilty mind in every criminal offense. (In re Jorge M. (2000) 23 Cal.4th 866, 879.) However, courts have determined that the statute does not apply when the purpose of laws is to protect public health and the penalties are not substantial. (Ibid.) Relatively light penalties can be associated with strict liability offenses. (People v. Simon (1995) 9 Cal.4th 493, 521.)
   
   Strict liability offenses are denoted where “qualifying words such as knowingly, intentionally, or fraudulently are omitted from provisions creating the offense.” (People v. Martin (1989) 211 Cal.App.3d 699, 713.) The absence of words such as “knowingly,” “intentionally,” or “willfully” indicates a legislative intent that these offenses be considered strict liability crimes. (People v. Allen (1993) 20 Cal.App.4th 846, 850.) The provisions of this bill punish conduct as a felony without specifying intent or knowledge is required. The bill would make it unlawful to “operate a social media platform on which users offer controlled substances for sale” without requiring that the social media company knowingly, intentionally, or willfully operated such a platform and without any need to show that the accused intended that users sell controlled substances. The penalty is a felony is a person overdoses or dies as a result of the violation.
   
   In People v. Gonzalez, the California Court of Appeal reviewed provisions of the Los Angeles Municipal Code that were intended to safeguard public health, and determined that the penalties provided are comparatively light and “far less than that provided for felonies, which can subject a defendant to years in state prison.” (People v. Gonzalez (2020) 53 Cal.App.5th Supp. 1, 14-15.) Six months punishment in jail and up to a $1,000 fine for a violation of Los Angeles Municipal Code was sufficiently light to militate against finding an intent to require mens rea. (Ibid.)
   
   On the other hand, the United States Supreme Court has emphasized that felony offenses which bear harsh punishment are not the type of “public welfare” offenses for which courts will readily dispense with the mens rea requirement when construing a statute. (Staples v. United States (1994) 511 U.S. 600, 616-617; People v. Simon (1995) 9 Cal.4th 493, 520.)
   
   Unlike the municipal ordinances under review in People v. Gonzalez, the felony penalties proposed by this bill, which include substantial imprisonment in county jail and state prison, are not “sufficiently light” as to not require a culpable mens rea.
   
2. This Bill Would Include Precursors: This bill would criminalize social media companies whenever any of their users “offer controlled substances for sale” on the platform. This bill does not define “controlled substances.” As such, the existing definition in the Health and Safety Code would apply. The Health and Safety Code defines “controlled substance” as a drug, substance, or immediate precursor which is listed in any schedule. (Health & Safe. Code, § 11007.) Accordingly this bill would include offers to sell precursors.

Drug precursors, also referred to as precursor chemicals or simply precursors, are substances used to manufacture illicit drugs. Most precursors also have legitimate commercial uses and are legally used in a wide variety of industrial processes and consumer products, such as, flavorings, fragrances, pharmaceuticals, cosmetics, cleaning agents, pesticides, insecticides, fertilizers, and various other industries. (United Nations Office on Drugs and Crime, Fact Sheet on Precursor Control. (2014). Available at: <https://‌www.‌unodc.‌org/documents‌/wdr2014‌/Fact_‌Sheet_‌Chp2_‌2014.‌pdf> [as of March 1, 2024].) This bill would could include precursors, even if the offer to sell the precursor was for a legitimate commercial use.

1. Increased Penalties for Overdoses and Deaths: This bill would increase the penalties for a social media company if a person overdoses or dies as a result of a sale of a controlled substance on a social media platform. If a person overdoses and requires medical care, the offense is a wobbler punishable as a misdemeanor by up to one year in the county jail or as a felony, punishable by 16 months, two years, or three years in a county jail. If a person died as a result of the sale, the offense is a felony punishable by a two, three, or six years in a state prison.

Setting aside the question of how, realistically, an overdose requiring medical attention or death could be causally connected to a social media company when a third party offers to sale a controlled substance on a social media, it must be noted that in each of these instances the existing Great Bodily Injury (GBI) or death enhancement could already apply to the seller. (Pen. Code, § 12022.7.)

This bill seeks to overturn part of the California Supreme Court’s decision in People v. Ollo (2021) 11 Cal.5th 682. In that case, the California Supreme Court was asked to decide “whether a defendant who furnishes a controlled substance ‘personally inflicts’ great bodily injury as a matter of law whenever a person to whom he or she provides drugs dies or suffers other great bodily injury from using drugs” under Penal Code section 12022.7. (Ollo, supra, 11 Cal.5th at p. 687.) The Court observed that the purpose of the GBI enhancement is to punish “gratuitous harm not inherent in the crime itself.” (Id. at p. 691.) According to the court:

When a defendant administers the drugs without the victim’s consent, the defendant has participated in the injury-causing act and thus may be held liable for personal infliction of the overdose. Where a defendant simply provides the drugs to a user who subsequently overdoses, the defendant facilitates but does not personally inflict the overdose. This distinction recognizes the importance of the voluntariness of a victim’s ingestion in the determination of whether a defendant personally inflicts great bodily injury in the drug furnishing context. To be eligible for the great bodily injury enhancement, a defendant’s participation in the act of ingestion must occur in circumstances in which the victim is not an independent “intermediary” capable of breaking the “personal” nexus between the defendant and the overdose injury. Whereas a victim with full capacity who voluntarily chooses to ingest a controlled substance is an independent intermediary, a victim who ingests drugs as a result of coercion or with diminished capacity is not.

(Id. at pp. 690-691, emphasis added.) This bill seeks to overrule the California Supreme Court’s unanimous decision in People v. Ollo as applied to social media companies. It would make the GBI enhancement automatic as a matter of law anytime a person a person dies or overdoses after consuming a drug that was offered for sale on social media platform, even if the owner of the social media platform has no connection whatsoever to the user or the seller. This bill rejects the Supreme Court’s reasoning that application of the GBI enhancement requires an analysis of the defendant’s culpable conduct in personally inflicting the overdose or death.

1. This Bill Would Not Be Limited to Conduct that Occurs in California: Under Penal Code section 777, a person is “liable to punishment by the laws of this State, for a public offense committed by him therein […] the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed.” (Emphasis added.)
   
   The bill requires that the social media company have “users in California,” but it does not require any of the criminal conduct to be committed in this state.
   
   For example, Facebook has a worldwide user base and has users in California. (World Population Review, Facebook Users by Country 2024. Available at: <https://‌world‌population‌review‌.com/country‌-rankings/‌facebook-users-by‌-country> [as of March 1, 2024].) This bill would make the owners of Facebook criminally liable in California, if a user in Canada offers a controlled substances for sale to a user in Mexico, even though none of the conduct was committed by the social media company or its owners in California, and even if the substance was not illegal in either of those countries. This bill would create confusion as to what court would have jurisdiction to prosecute this offense and which county should be responsible for incarcerating the defendant.
   
2. Faulty Comparisons to Existing Penalties for “Operating a Drug House”: In background materials provided by the author, the author of this bill inaccurately claims that, “If a drug deal occurred on private property, the property owner would be held liable, however, because these transactions take place on unregulated social media sites, the market place has been allowed to thrive.”

Under existing law, opening or maintaining any place for the purpose of unlawfully selling, giving away, or using any specified controlled substance is punishable by imprisonment in the county jail for a not more than one year or the state prison. (Health & Safe. Code, § 11366.) “A person can only be convicted of maintaining or operating a drug house if they open or maintained the property with the intent to sell, give away or allow others to use a controlled substance on a continuous and repeated basis at that place.” (CALCRIM No. 2440, emphasis added.)

The defendant must have the intent that drugs are sold on the property and drugs must actually be sold there on a continuous and repeated basis. Evidence of a single instance of drug use or sales at the house, without circumstances supporting a reasonable inference that the house was used for the prohibited purposes continuously or repetitively, does not suffice to sustain a conviction of the opening-or-maintaining offense. (People v. Shoals (1992) 8 Cal.App.4th 475, 491-492; People v. Hawkins (2004) 124 Cal.App.4th 675, 682.)

Existing law does not make criminal the owners of Walmart if a person offers drugs for sale in the bread aisle. This bill seeks to hold social media companies more culpable than individuals who purposefully intend to operate a drug house.

1. First Amendment Implications and Potential Chilling Effect: There is no doubt offering to sell unlawful controlled substances is not speech protected by the First Amendment. The Supreme Court has consistently held that “offers to engage in illegal transactions are categorically excluded from First Amendment protection.” (United States v. Williams (2008) 553 U.S. 285, 297.) First Amendment concerns would remain even if this bill were to be amended to only include unlawful offers of controlled substances for sale as it would still inhibit the exercise of First Amendment freedoms and have a chilling effect by causing speakers to “steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.” (Reno v. ACLU (1997) 521 U.S. 844, 874–879; Dombrowski v. Pfister (1965) 380 U.S. 479, 494.) This bill would still risk stifling otherwise permissible free speech because it is not clear what conduct would be considered “unlawful” and would ask social media companies to be the arbiter of legal versus illegal sales.
   

As drafted, this bill could stifle any offer of a controlled substance for sale, even potentially legal offers, such as advertisements for prescription medication, which is protected speech (See, Sorrell v. IMS Health, Inc., (2011), 131 S.Ct. 2653, 2659- 2667 [“speech in aid of pharmaceutical marketing is a form of expression protected by the First Amendment].) Likewise, it is not clear what speech “offering” a controlled substance for sale includes. For example, would it include conversations about “sharing” a controlled substance with a friend? Could parody, creative speech such as song lyrics, protest speech, educational speech helping people with addiction or withdrawal effects, attempts to sell or distribute fentanyl testing strips, all be stifled for fear that the owners of the social media company would be prosecuted?

Content-based speech restrictions are subject to “strict scrutiny”—that is, the government must show that the regulation at issue is narrowly tailored to serve or promote a compelling government interest. (R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 395). Content-based government regulations are “presumptively invalid.” (Id. at 382.) Criminal laws, moreover, warrant even more careful scrutiny. (City of Houston v. Hill (1987) 482 U.S. 451, 459 (1987) [“Criminal statutes must be scrutinized with particular care].)

In Smith v. California (1959) 361 U.S. 147, the owner of a bookstore, was convicted of violating a city ordinance which was construed by the state courts as making him absolutely liable criminally for the mere possession in his store of a book later judicially determined to be obscene -- even if he had no knowledge as to the contents of the book. The United States Supreme Court held that the ordinance violated the First Amendment. (Id., at 148-155.) The court reasoned that the publication and dissemination of books obviously are within the constitutionally protected freedom of the press, and a retail bookseller plays a most significant role in the distribution of books. (Ibid.) Although obscene expression is not constitutionally protected speech, the Court determined that the ordinance imposed an unconstitutional limitation on the public’s access to constitutionally protected matter. “For, if the bookseller be criminally liable without knowledge of the contents, he will tend to restrict the books he sells to those he has inspected, and thus a restriction will be imposed by the States upon the distribution of constitutionally protected, as well as obscene, books.” (Ibid.) Like in Smith, the vagueness of this bill raises noteworthy First Amendment concerns because of its obvious chilling effect on free speech. Similar to the bookseller in Smith, social media companies would more than likely over-restrict speech, including, possibly constitutionally protected speech, to shield themselves from criminal liability that would be imposed by this bill.

1. Existing Requirements on Social Media Companies Relating to Controlled Substances: Business and Professions Code section 2294, which became effective January 1st of this year, requires social media platforms that operate in this state to create and publicly post a policy statement that includes their policy on the use of the social media platform to illegally distribute a controlled substance and a general description of the social media platform’s moderation practices to prevent users from posting or sharing electronic content pertaining to the illegal distribution of a controlled substance. Social media platforms are required to retain data on content it has taken action to take down or remove for a violation of a policy prohibiting the unlawful sale, distribution, amplification, or otherwise proliferation of controlled substances and related paraphernalia and retain the content that violated a policy and the username of the violating account at issue for a period of 90 days. (Bus. & Prof. Code, § 22945.) In addition, Business and Professions Code section 22945.5 allows a person to seek a court order requiring a social media platform to remove content that includes an offer to transport, import into this state, sell, furnish, administer, or give away a controlled substance and the court is required to award court costs and reasonable attorney’s fees to a prevailing plaintiff in the action. (Bus. & Prof. Code, § 22945.5.)

Business and Professions Code sections 26675 through 22681, which became effective January 1, 2023, require social media companies to post TOS in a manner designed to inform all users of the social media platform of its existence and contents. (Bus. & Prof. Code, § 22676.) A TOS is a set of policies adopted by a social media company that specifies the user behavior and activities that are permitted on the service and the user behavior and activities that may subject the user or an item of content to being acted upon by the company. (Bus. & Prof. Code, § 22675.) Effective this year, the law requires, social media companies to submit a TOS report to the AG on a semiannual basis. The report must include a statement of whether the TOS defines specified categories of content including controlled substance distribution and a detailed description of content moderation practices used by the social media company including how the social media company responds to violations of the TOS. (Bus. & Prof. Code, § 26677.) A social media company that violates these provisions is liable for a civil penalty not to exceed $15,000 per violation per day. (Bus. & Prof. Code, § 22678.)

Additionally, AB 33 (Bains), Chapter 887, Statutes of 2023, recently established the Fentanyl Addiction and Overdose Prevention Task Force to, among other things, collect and organize data on the nature and extent of fentanyl abuse in California; identify and assess sources and drivers of legal and illicit fentanyl activity in California; analyze existing statutes for their adequacy in addressing fentanyl abuse and, if the analysis determines that those statutes are inadequate, recommend revisions to those statutes or the enactment of new statutes that specifically define and address fentanyl abuse. The task force is also statutorily mandated to evaluate strategies to improve coordination and collaboration between social media platforms, public health entities, and law enforcement. (Health & Safe. Code, § 11455.)

1. Potential Unintended Consequences: As discussed above, the state recently passed legislation that encourages and requires social media companies to collect and retain information about controlled substances on their platforms. This bill could have the unintended consequence of disincentivizing social media companies from preserving third-party content related to controlled substances and from working with law enforcement to investigate and deter controlled substance related crimes, as to not incriminate themselves under the law proposed by this bill. If a social media company reveals to law enforcement that any of their users of has offered a controlled substance for sale on their platform, they could be subject to civil penalties, criminal prosecution fines, and imprisonment based on the provisions of this bill. Accordingly, any expected progress from recent legislation could be undercut by this bill.
   
2. Argument in Support: According to the California Narcotic Officers’ Association, “As you know, fentanyl has become the leading cause of death for Americans age 18-45. More people in this age group are killed by fentanyl than from gun violence, homicides, suicides, and traffic collisions. This deadly epidemic must be attacked from all sides. AB 1800 provides an important tool for law enforcement to root out those who seek to peddle this poison for profit.”
   
3. Arguments in Opposition:
   
   1. According to Oakland Privacy, “Firstly, California’s list of controlled substances is vast. The bill exempts authorized sales of cannabis, but there is still a long list of relatively commonplace and widely used drugs, that for better or worse, people do not always obtain with prescriptions. These range from anabolic steroids for athletic training, codeine which is often used for menstrual pain, xanax and valium for anxiety, unauthorized cannabis sales, psilocybin and other psychedelics, hormonal treatments and many others. We are not condoning use of these things without prescriptions, but realistically many people self-medicate and do not or are unable to use the health care system.
      

“We are concerned that civil and criminal penalties will simply drive this kind of commerce even further underground, namely off of the common social media platforms which at least are fairly public and moderated to some extent, and on to the dark web. On the dark web, there are no rules and shoppers are much more likely to encounter hardened criminals, scammers or fake drugs that say they are one thing when they are actually something else. […]

“Secondly, drug dealing is already illegal, whether conducted online or at a park behind some dark bushes. We do not arrest the park for harboring drug dealing, we arrest the human beings who engage in a criminal act in a public common space. While Internet companies are private corporations, the spaces they facilitate are, in essence, public forums. Any public forum can potentially be used in a criminal way, but civil and criminal liability is generally not ascribed to the public forum, but to those who commit crimes in that place.

“This general principle is what underlies Section 230 of the Communications Act, which declines to hold platform operators legally liable for the content their users post. As has been exhaustively discussed, it is Section 230 which has made an interactive Internet possible. Without Section 230, it would be economically infeasible for anyone to operate an interactive website, including a discussion forum, a comment feature or a social network. Bearing civil liability, and potentially criminal liability for the content any user posts would make a social network uninsurable and inoperable.

“There is no doubt that drug sales are not free speech, and no one is making any claims to the contrary. Section 230 does not protect against violations of federal law and it isn’t supposed to. But to connect inept or inadequate moderation, especially at the scale of the largest modern-day social networks, with imprisonment should be a bridge too far. […]

“But the stick envisioned in AB 1800 is the wrong stick. It will undermine current attempts to control drug sales on social media by pushing traffic to the dark web, breaking AB 1027, and encouraging social media networks to do the wrong thing, namely suppressing and hiding content that could connect them to an illegal drug sale that ends badly.”

• 1. According to TechNet, “This bill would make a social media company criminally liable of a misdemeanor if controlled substances are sold on their platform. Setting aside the ambiguity of whether every California based employee of the company, the CEO, or other named agent of the company would be guilty of this misdemeanor, the bill imposes no fault, strict liability for this crime. Despite expending millions of dollars and employing teams of people to combat this issue, if a controlled substance is sold, then the company is criminally liable. If this wasn’t enough, the company shall be imprisoned for up to three years if the individual overdoses and up to six years if they die. […]
     

“This extreme amount of liability will not protect Californians because there is no way for a company to change their practices and achieve the level of perfection required to avoid liability. Even completely ceasing operations in California or severely limiting access would not be enough. The bill does not require the sale to have happened in California or have been sold to a Californian. It just has to have happened on the platform.”

1. Related Legislation:
   
   1. AB 2657 (Arambula), would establish the Social Media Commission to investigate the impacts on the mental health of children and adolescents of the methods and tools used by social media companies and to make recommendations on how best to mitigate these impacts. AB 2657 is pending referral by Assembly Rules Committee.
      
   2. AB 1804 (Jim Patterson), would lower the requisite amount of fentanyl to support probable cause to obtain a wiretap order. AB 1804 is pending in Assembly Appropriations Committee.
      
2. Prior Legislation:
   
   1. AB 587 (Gabriel), Chapter 269, Statutes of 2021, requires social media companies to post their TOS, which must include policies on controlled substances, on their platform and to submit reports to the AG regarding their TOS and data related to the violations of their TOS.
      
   2. AB 1628 (Ramos), Chapter 432, Statutes of 2022, requires a social media platform that operates in the state to create and publicly post a policy statement that includes, among other things, the social media platform’s policy on illegal distribution a controlled substance and a link to the social media platform’s reporting mechanism for illegal or harmful content or behavior.
      
   3. AB 2408 (Cunningham), of the 2021-2022 Legislative Session, would have prohibited a social media platform from using a design that causes child users, to experience addiction to the social media platform. AB 2408 was held under submission in Senate Appropriations Committee.
      
   4. SB 60 (Umberg), Chapter 698, Statute of 2023, authorizes a person to seek an order requiring a social media platform to remove content that includes an offer to transport, import into this state, sell, furnish, administer, or give away a controlled substance in violation of specified law.
      
   5. AB 1027 (Petrie-Norris), Chapter 824, Statutes of 2023, requires social media companies to submit reports to the AG that include the current version of the TOS for each social media platform owned by the company, including policies the company has to address the distribution of controlled substances on the platform.
      
   6. AB 836 (Essayli), of the 2023-2024 Legislative Session, would have declared that a social media platform shall be considered a traditional First Amendment forum and required a social media platform to develop a policy or mechanism to address content or communications that constitute unprotected speech, including incitement of imminent lawless action. AB 836 was not heard in Assembly Judiciary Committee at the request of the author.
      
   7. AB 955 (Petrie-Norris), of the 2023-2024 Legislative Session, would have made the sale of fentanyl on a social media platform in California punishable as a felony by imprisonment in a county jail. AB 955 failed passage in Assembly Public Safety Committee.
      
   8. SB 287 (Skinner), of the 2023- 2024 Legislative Session, was substantially similar to AB 2408. SB 287 died on the Senate inactive file.
   9. SB 680 (Skinner), of the 2023- 2024 Legislative Session, was substantially similar to SB 287. SB 680 was held under submission in Assembly Apportions Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Arcadia Police Officers' Association

Burbank Police Officers' Association

California Coalition of School Safety Professionals

California Narcotic Officers' Association

California Reserve Peace Officers Association

Claremont Police Officers Association

Corona Police Officers Association

Culver City Police Officers' Association

Deputy Sheriffs' Association of Monterey County

Fullerton Police Officers' Association

League of California Cities

Los Angeles School Police Management Association

Los Angeles School Police Officers Association

Murrieta Police Officers' Association

Newport Beach Police Association

Novato Police Officers Association

Palos Verdes Police Officers Association

Placer County Deputy Sheriffs' Association

Pomona Police Officers' Association

Riverside Police Officers Association

Riverside Sheriffs' Association

Santa Ana Police Officers Association

Upland Police Officers Association

Opposition

Cal Chamber

California Chamber of Commerce

Chamber of Progress

Computer & Communications Industry Association

End Overdose

Oakland Privacy

TechNet

Analysis Prepared by:

1. This bill is double referred to the Assembly Committee on Privacy and Consumer Protection. Accordingly, the primary focus of this analysis is the criminal penalties that fall within this committee’s jurisdiction. However, it should be noted that this bill lacks specificity concerning the imposition of civil penalties. ↑