Proposed Legislation in South Carolina: The “Digital Choice Act”

Lawmakers in South Carolina have proposed legislation that would place restrictions on how social media companies can share and use consumers’ personal data. The legislation would require social media companies to provide users with their personal data in a specific format, set rules for sharing information between platforms, and spell out certain consumer rights related to personal data. 

This overview breaks down where the legislation stands, what it would do, how it would be enforced, and what it means for privacy professionals and counsel.

Posture of the Proposed Legislation

South Carolina currently has two “Digital Choice Act” bills pending before its General Assembly: H. 4666 in the House and S. 932 in the Senate. While not identical, the bills are substantially similar.  The House bill is currently before the Judiciary Committee.  The Senate bill is currently before the Committee on Labor, Commerce and Industry.  Both bills are drafted as amendments to Title 37 of the South Carolina Code by adding a new Chapter 31 (the “Digital Choice Act”). 

Substance of the Proposed Legislation

In their current state, the bills largely focus on social media companies by directing that they provide users with certain data upon request and facilitate efficient platform-to-platform sharing of certain information.  The bills also include a consumer rights section, similar to statutes adopted in other states, that provide the consumer with data confirmation, access, deletion, correction, and opt-out rights.

The proposed legislation would require that social media platforms, upon request, provide the consumer with his or her personal data, including the corresponding “social graph.” A “social graph is defined as the user’s social connections, created content, and responses to other users’ content. The data must be produced to the consumer in a form that is portable, readily usable, and allows the consumer to easily transmit the data to another controller.   The bills would also require social media companies to implement a transparent, third-party accessible interface conducive to platform-to-platform transfers of personal data (upon user request) without discriminating between social media services.  The House bill adds context by explaining, explaining in its legislative findings section that, “companies have demonstrated a pattern of restricting the interoperability of content, preventing users from easily sharing posts and interactions across different platforms.”  The proposed legislation also requires that social media companies safeguard the privacy and security of a user’s personal data obtained through an interoperability interface.

In the final section of the proposed bills, certain digital consumer rights are enumerated.  Although these sections lie in the Digital Choice Act, they do not employ the terms “social media company” or “social media service,” as does virtually every other section in the Act.  Instead, the final sections define a consumer’s rights with respect to a “controller,” which is defined as “a person doing business in the State who determines the purposes for which and the means by which personal data is processed, regardless of whether the person makes the determination alone or with others.”  The final sections of the Act codify digital consumer rights similar to those adopted by many other states.  The consumer has the right to confirm whether the controller is processing their personal data, access and obtain a copy of their personal data, delete personal data they provided to the controller, correct inaccuracies in their personal data, and opt out of targeted advertising and the sale of their personal data.

Enforcement

Enforcement of the Act’s provisions is assigned to the State’s Department of Consumer Affairs, with the Attorney General providing legal advice and acting as counsel upon request.  The Department’s Director may impose administrative fines up to $2,500 per violation.  The Department may also seek injunctive relief, disgorgement, civil penalties, and damages, among other remedies.  Importantly, the bill does not expressly provide for a private right of action. 

The Digital Choice Act bills remain pending, and even if passed, could change in their final form. But social media companies need to be aware of these potential changes and plan accordingly. The penalties for non-compliance are too high to be caught unaware. 

If you have any questions about the issues raised in this alert, please contact the author or the Womble Bond Dickinson attorney with whom you normally work. Click here to learn more about Womble Bond Dickinson’s Digital Solutions team.