21st Century Foundation for the Right to Express and Engage in Speech Act or the 21st Century FREE Speech Act
This bill makes various changes to liability protections and requirements for providers and users of an interactive computer service (e.g., a social media company).
The bill replaces existing liability protections (sometimes referred to as Section 230 protection) related to content provided by third parties with more limited protections.
The bill provides some liability protection for third-party content, but the protection shall not apply to a provider or user who carries out certain affirmative acts, such as barring users from the service or restricting access to or availability of material. However, the protection shall apply if the action is taken in good faith to restrict access to or availability of obscene, unlawful, or other similarly objectionable material.
Additionally, the bill places specific requirements on common carrier technology companies, defined in the bill as providers that offer services to the public and have over 100 million active monthly users. These companies must
Aggrieved individuals and state entities may sue to enforce these requirements, and the Federal Communications Commission must develop best practices for complying with the requirements.
The bill's provisions do not apply to designated areas of law, including criminal law and state law.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 1384 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 1384
To repeal section 230 of the Communications Act of 1934 and ensure
reasonable, non-discriminatory access to online communications
platforms.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 27, 2021
Mr. Hagerty introduced the following bill; which was read twice and
referred to the Committee on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To repeal section 230 of the Communications Act of 1934 and ensure
reasonable, non-discriminatory access to online communications
platforms.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``21st Century Foundation for the
Right to Express and Engage in Speech Act'' or the ``21st Century FREE
Speech Act''.
SEC. 2. REASONABLE, NON-DISCRIMINATORY ACCESS TO ONLINE COMMUNICATIONS
PLATFORMS; BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.
(a) In General.--Part I of title II of the Communications Act of
1934 (47 U.S.C. 201 et seq.) is amended--
(1) by striking section 230; and
(2) by adding at the end the following:
``SEC. 232. REASONABLE, NON-DISCRIMINATORY ACCESS TO ONLINE
COMMUNICATIONS PLATFORMS; BLOCKING AND SCREENING OF
OFFENSIVE MATERIAL.
``(a) Findings.--Congress finds the following:
``(1) The rapidly developing array of internet and other
interactive computer services available to individual Americans
represent an extraordinary advance in the availability of
educational and informational resources to our citizens.
``(2) These services often offer users a great degree of
control over the information that they receive, as well as the
potential for even greater control in the future as technology
continues to develop.
``(3) The internet and other interactive computer services
offer a forum for a true diversity of political discourse and
viewpoints, unique opportunities for cultural development, and
myriad avenues for intellectual activity, and regulation of the
internet must be tailored to supporting those activities.
``(4) The internet and other interactive computer services
have flourished, to the benefit of all Americans, with a
minimum of government regulation, and regulation should be
limited to what is necessary to preserve the societal benefits
provided by the internet.
``(5) Increasingly Americans rely on internet platforms and
websites for a variety of political, educational, cultural, and
entertainment services and for communication with one another.
``(b) Policy.--It is the policy of the United States--
``(1) to promote the continued development of the internet
and other interactive computer services and other interactive
media;
``(2) to preserve a vibrant and competitive free market for
the internet and other interactive computer services;
``(3) to encourage the development of technologies which
maximize user control over what information is received by
individuals, families, and schools who use the internet and
other interactive computer services, rather than control and
censorship driven by interactive computer services;
``(4) to facilitate the development and utilization of
blocking and filtering technologies that empower parents to
restrict their children's access to objectionable or
inappropriate online material;
``(5)(A) to ensure that the internet serves as an open
forum for--
``(i) a true diversity of discourse and viewpoints,
including political discourse and viewpoints;
``(ii) unique opportunities for cultural
development; and
``(iii) myriad avenues for intellectual activity;
and
``(B) given that the internet is the dominant platform for
communication and public debate today, to ensure that major
internet communications platforms, which function as common
carriers in terms of their size, usage, and necessity, are
available to all users on reasonable and non-discriminatory
terms free from public or private censorship of religious and
political speech;
``(6) to promote consumer protection and transparency
regarding information and content management practices by major
internet platforms to--
``(A) ensure that consumers understand--
``(i) the products they are using; and
``(ii) what information is being presented
to them and why; and
``(B) prevent deceptive or undetectable actions
that filter the information presented to consumers; and
``(7) to ensure vigorous enforcement of Federal criminal
laws to deter and punish trafficking in online obscenity,
stalking, and harassment.
``(c) Reasonable and Nondiscriminatory Access to Common Carrier
Technology Companies.--
``(1) In general.--A common carrier technology company,
with respect to the interactive computer service provided by
the company--
``(A) shall furnish the interactive computer
service to all persons upon reasonable request;
``(B) may not unjustly or unreasonably discriminate
in charges, practices, classifications, regulations,
facilities, treatment, or services for or in connection
with the furnishing of the interactive computer
service, directly or indirectly, by any means or
device;
``(C) may not make or give any undue or
unreasonable preference or advantage to any particular
person, class of persons, political or religious group
or affiliation, or locality; and
``(D) may not subject any particular person, class
of persons, political or religious group or
affiliation, or locality to any undue or unreasonable
prejudice or disadvantage.
``(2) Applicability to broadband.--Paragraph (1) shall not
apply with respect to the provision of broadband internet
access service.
``(d) Consumer Protection and Transparency Regarding Common Carrier
Technology Companies.--
``(1) In general.--A common carrier technology company
shall disclose, through a publicly available, easily accessible
website, accurate material regarding the content management,
moderation, promotion, account termination and suspension, and
curation mechanisms and practices of the company sufficient to
enable--
``(A) consumers to make informed choices regarding
use of the interactive computer service provided by the
company; and
``(B) persons to develop, market, and maintain
consumer-driven content management mechanisms with
respect to the interactive computer service provided by
the company.
``(2) Best practices.--The Commission, after soliciting
comments from the public, shall publish best practices for
common carrier technology companies to disclose content
management, moderation, promotion, account termination and
suspension, and curation mechanisms and practices in accordance
with paragraph (1).
``(3) Applicability to broadband.--Paragraph (1) shall not
apply with respect to the provision of broadband internet
access service.
``(e) Protection for `Good Samaritan' Blocking and Screening of
Offensive Material.--
``(1) Treatment of publisher or speaker.--
``(A) In general.--No provider or user of an
interactive computer service shall be treated as the
publisher or speaker of any material provided by
another information content provider.
``(B) Exception.--Subparagraph (A) shall not apply
to any affirmative act by a provider or user of an
interactive computer service with respect to material
posted on the interactive computer service, whether the
act is carried out manually or through use of an
algorithm or other automated or semi-automated process,
including--
``(i) providing its own material;
``(ii) commenting or editorializing on,
promoting, recommending, or increasing or
decreasing the dissemination or visibility to
users of its own material or material provided
by another information content provider;
``(iii) restricting access to or
availability of material provided by another
information content provider; or
``(iv) barring or limiting any information
content provider from using the interactive
computer service.
``(2) Civil liability.--
``(A) In general.--No provider or user of an
interactive computer service shall be held liable,
under subsection (c) or otherwise, on account of--
``(i) any action voluntarily taken in good
faith to restrict access to or availability of
material that the provider or user considers to
be obscene, lewd, lascivious, filthy,
excessively violent, harassing, promoting self-
harm, or unlawful, whether or not such material
is constitutionally protected; or
``(ii) any action taken to enable or make
available to information content providers or
others the technical means to restrict access
to material described in clause (i).
``(B) Definitions.--For purposes of subparagraph
(A)--
``(i) the term `excessively violent', with
respect to material, means material that--
``(I) is likely to be deemed
violent and for mature audiences
according to the V-chip regulations and
TV Parental Guidelines of the
Commission promulgated under sections
303(x) and 330(c)(4); or
``(II) constitutes or intends to
advocate domestic terrorism or
international terrorism, as defined in
section 2331 of title 18, United States
Code;
``(ii) the term `harassing' means material
that--
``(I) is--
``(aa) provided by an
information content provider
with the intent to abuse,
threaten, or harass any
specific person; and
``(bb) lacking in any
serious literary, artistic,
political, or scientific value;
``(II) violates the CAN-SPAM Act of
2003 (15 U.S.C. 7701 et seq.); or
``(III) is malicious computer code
intended (whether or not by the
immediate disseminator) to damage or
interfere with the operation of a
computer;
``(iii) the term `in good faith', with
respect to restricting access to or
availability of specific material, means the
provider or user--
``(I) restricts access to or
availability of material consistent
with publicly available online terms of
service or use that--
``(aa) state plainly and
with particularity the criteria
that the provider or user of
the interactive computer
service employs in its content
moderation practices, including
by any partially or fully
automated processes; and
``(bb) are in effect on the
date on which the material is
first posted;
``(II) has an objectively
reasonable belief that the material
falls within one of the categories
listed in subparagraph (A)(i);
``(III)(aa) does not restrict
access to or availability of material
on deceptive or pretextual grounds; and
``(bb) does not apply its terms of
service or use to restrict access to or
availability of material that is
similarly situated to material that the
provider or user of the interactive
computer service intentionally declines
to restrict; and
``(IV) supplies the information
content provider of the material with
timely notice describing with
particularity the reasonable factual
basis for the restriction of access and
a meaningful opportunity to respond,
unless the provider or user of the
interactive computer service has an
objectively reasonable belief that--
``(aa) the material is
related to terrorism or
criminal activity; or
``(bb) such notice would
risk imminent physical harm to
others; and
``(iv) the terms `obscene', `lewd',
`lascivious', and `filthy', with respect to
material, mean material that--
``(I) taken as a whole--
``(aa) appeals to the
prurient interest in sex or
portrays sexual conduct in a
patently offensive way; and
``(bb) does not have
serious literary, artistic,
political, or scientific value;
``(II) depicts or describes sexual
or excretory organs or activities in
terms patently offensive to the average
person, applying contemporary community
standards; or
``(III) signifies the form of
immorality which has relation to sexual
impurity, taking into account the
standards at common law in prosecutions
for obscene libel.
``(C) Best practices.--The Commission, after
soliciting comments from the public, shall publish best
practices for making publicly available online terms of
service or use that state plainly and with
particularity the criteria that the provider or user of
an interactive computer service employs in its content
moderation practices, including by any partially or
fully automated processes, in accordance with
subparagraph (B)(iii)(I).
``(f) Violations.--
``(1) Private right of action.--
``(A) In general.--A person aggrieved by a
violation of subsection (c) or (d) may bring a civil
action against the provider or user of an interactive
computer service that committed the violation for any
relief permitted under subparagraph (B) of this
paragraph.
``(B) Relief.--
``(i) In general.--The plaintiff may seek
the following relief in a civil action brought
under subparagraph (A):
``(I) An injunction.
``(II) An award that is the greater
of--
``(aa) actual damages; or
``(bb) damages in the
amount of $500 for each
violation.
``(ii) Willful or knowing violations.--In a
civil action brought under subparagraph (A), if
the court finds that the defendant willfully or
knowingly violated subsection (c) or (d), the
court may, in its discretion, increase the
amount of the award to not more than 3 times
the amount available under clause (i)(II) of
this subparagraph.
``(2) Actions by states.--
``(A) Authority of states.--
``(i) In general.--Whenever the attorney
general of a State, or an official or agency
designated by a State, has reason to believe
that any person has engaged or is engaging in a
pattern or practice of violating subsection (c)
or (d) that has threatened or adversely
affected or is threatening or adversely
affecting an interest of the residents of that
State, the State may bring a civil action
against the person on behalf of the residents
of the State for any relief permitted under
clause (ii) of this subparagraph.
``(ii) Relief.--
``(I) In general.--The plaintiff
may seek the following relief in a
civil action brought under clause (i):
``(aa) An injunction.
``(bb) An award that is the
greater of--
``(AA) actual
damages; or
``(BB) damages in
the amount of $500 for
each violation.
``(II) Willful or knowing
violations.--In a civil action brought
under clause (i), if the court finds
that the defendant willfully or
knowingly violated subsection (c) or
(d), the court may, in its discretion,
increase the amount of the award to not
more than 3 times the amount available
under subclause (I)(bb) of this clause.
``(B) Investigatory powers.--For purposes of
bringing a civil action under this paragraph, nothing
in this section shall prevent the attorney general of a
State, or an official or agency designated by a State,
from exercising the powers conferred on the attorney
general or the official by the laws of the State to--
``(i) conduct investigations;
``(ii) administer oaths or affirmations; or
``(iii) compel the attendance of witnesses
or the production of documentary and other
evidence.
``(C) Effect on state court proceedings.--Nothing
in this paragraph shall be construed to prohibit an
authorized State official from proceeding in State
court on the basis of an alleged violation of any
general civil or criminal statute of the State.
``(D) Attorney general defined.--For purposes of
this paragraph, the term `attorney general' means the
chief legal officer of a State.
``(3) Venue; service of process.--
``(A) Venue.--A civil action brought under this
subsection may be brought in the location where--
``(i) the defendant--
``(I) is found;
``(II) is an inhabitant; or
``(III) transacts business; or
``(ii) the violation occurred or is
occurring.
``(B) Service of process.--Process in a civil
action brought under this subsection may be served
where the defendant--
``(i) is an inhabitant; or
``(ii) may be found.
``(g) Obligations of Interactive Computer Service.--A provider of
an interactive computer service shall, at the time of entering an
agreement with a customer for the provision of interactive computer
service and in a manner deemed appropriate by the provider, notify the
customer that parental control protections (such as computer hardware,
software, or filtering services) are commercially available that may
assist the customer in limiting access to material that is harmful to
minors. The notice shall identify, or provide the customer with access
to material identifying, current providers of such protections.
``(h) Effect on Other Laws.--
``(1) No effect on criminal law.--Nothing in this section
shall be construed to impair the enforcement of section 223 or
231 of this Act, chapter 71 (relating to obscenity) or 110
(relating to sexual exploitation of children) of title 18,
United States Code, or any other Federal criminal statute.
``(2) No effect on intellectual property law.--Nothing in
this section shall be construed to limit or expand any law
pertaining to intellectual property.
``(3) State law.--Nothing in this section shall be
construed to prevent any State from enforcing any State law
that is consistent with this section. 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.
``(4) No effect on communications privacy law.--Nothing in
this section shall be construed to limit the application of the
Electronic Communications Privacy Act of 1986 or any of the
amendments made by such Act, or any similar State law.
``(5) No effect on sex trafficking law.--Nothing in this
section (other than subsection (e)(2)(A)(i)) shall be construed
to impair or limit--
``(A) any claim in a civil action brought under
section 1595 of title 18, United States Code, if the
conduct underlying the claim constitutes a violation of
section 1591 of that title;
``(B) any charge in a criminal prosecution brought
under State law if the conduct underlying the charge
would constitute a violation of section 1591 of title
18, United States Code; or
``(C) any charge in a criminal prosecution brought
under State law if the conduct underlying the charge
would constitute a violation of section 2421A of title
18, United States Code, and promotion or facilitation
of prostitution is illegal in the jurisdiction where
the defendant's promotion or facilitation of
prostitution was targeted.
``(i) Definitions.--As used in this section:
``(1) Access software provider.--The term `access software
provider' means a provider of software (including client or
server software), or enabling tools that do any one or more of
the following:
``(A) Filter, screen, allow, or disallow material.
``(B) Pick, choose, analyze, or digest material.
``(C) Transmit, receive, display, forward, cache,
search, subset, organize, reorganize, or translate
material.
``(2) Broadband internet access service.--The term
`broadband internet access service' has the meaning given the
term in section 8.1(b) of title 47, Code of Federal
Regulations, or any successor regulation.
``(3) Common carrier technology company.--The term `common
carrier technology company' means a provider of an interactive
computer service that--
``(A) offers its services to the public; and
``(B) has more than 100,000,000 worldwide active
monthly users.
``(4) Information content provider.--
``(A) In general.--The term `information content
provider' means any person or entity that is
responsible, in whole or in part, for the creation or
development of material provided through the internet
or any other interactive computer service.
``(B) Responsibility defined.--For purposes of
subparagraph (A), the term `responsible, in whole or in
part, for the creation or development of material'
includes affirmatively and substantively contributing
to, modifying, altering, presenting with a reasonably
discernible viewpoint, commenting upon, or
editorializing about material provided by another
person or entity.
``(5) Interactive computer service.--The term `interactive
computer service' means any information service, system, or
access software provider that provides or enables computer
access by multiple users to a computer server, including
specifically a service or system that provides access to the
internet and such systems operated or services offered by
libraries or educational institutions.
``(6) Internet.--The term `internet' means the
international computer network of both Federal and non-Federal
interoperable packet switched data networks.
``(7) Material.--The term `material' means any data,
regardless of physical form or characteristic, including--
``(A) written or printed matter, information,
automated information systems storage media, maps,
charts, paintings, drawings, films, photographs,
images, videos, engravings, sketches, working notes, or
papers, or reproductions of any such things by any
means or process; and
``(B) sound, voice, magnetic, or electronic
recordings.''.
(b) Conforming Amendments.--
(1) Communications act of 1934.--The Communications Act of
1934 (47 U.S.C. 151 et seq.) is amended--
(A) in section 223(h)(2) (47 U.S.C. 223(h)(2)), by
striking ``section 230(f)(2)'' and inserting ``section
232''; and
(B) in section 231(b)(4) (47 U.S.C. 231(b)(4)), by
striking ``section 230'' and inserting ``section 232''.
(2) Trademark act of 1946.--Section 45 of the Act entitled
``An Act to provide for the registration and protection of
trademarks used in commerce, to carry out the provisions of
certain international conventions, and for other purposes'',
approved July 5, 1946 (commonly known as the ``Trademark Act of
1946'') (15 U.S.C. 1127) is amended by striking the definition
relating to the term ``Internet'' and inserting the following:
``The term `internet' has the meaning given that term in section
232 of the Communications Act of 1934.''.
(3) Title 17, united states code.--Section 1401(g) of title
17, United States Code, is amended--
(A) by striking ``section 230 of the Communications
Act of 1934 (47 U.S.C. 230)'' and inserting ``section
232 of the Communications Act of 1934''; and
(B) by striking ``subsection (e)(2) of such section
230'' and inserting ``subsection (h)(2) of such section
232''.
(4) Title 18, united states code.--Part I of title 18,
United States Code, is amended--
(A) in section 2257(h)(2)(B)(v), by striking
``section 230(c) of the Communications Act of 1934 (47
U.S.C. 230(c))'' and inserting ``section 232(e) of the
Communications Act of 1934''; and
(B) in section 2421A--
(i) in subsection (a), by striking ``(as
such term is defined in defined in section
230(f) the Communications Act of 1934 (47
U.S.C. 230(f)))'' and inserting ``(as that term
is defined in section 232 of the Communications
Act of 1934)''; and
(ii) in subsection (b), by striking ``(as
such term is defined in defined in section
230(f) the Communications Act of 1934 (47
U.S.C. 230(f)))'' and inserting ``(as that term
is defined in section 232 of the Communications
Act of 1934)''.
(5) Controlled substances act.--Section
401(h)(3)(A)(iii)(II) of the Controlled Substances Act (21
U.S.C. 841(h)(3)(A)(iii)(II)) is amended by striking ``section
230(c) of the Communications Act of 1934'' and inserting
``section 232(e) of the Communications Act of 1934''.
(6) Webb-kenyon act.--Section 3(b)(1) of the Act entitled
``An Act divesting intoxicating liquors of their interstate
character in certain cases'', approved March 1, 1913 (commonly
known as the ``Webb-Kenyon Act'') (27 U.S.C. 122b(b)(1)) is
amended by striking ``(as defined in section 230(f) of the
Communications Act of 1934 (47 U.S.C. 230(f))'' and inserting
``(as defined in section 232 of the Communications Act of
1934)''.
(7) Title 28, united states code.--Section 4102 of title
28, United States Code, is amended--
(A) in subsection (c)--
(i) by striking ``section 230 of the
Communications Act of 1934 (47 U.S.C. 230)''
and inserting ``section 232 of the
Communications Act of 1934''; and
(ii) by striking ``section 230 if'' and
inserting ``that section if''; and
(B) in subsection (e)(2), by striking ``section 230
of the Communications Act of 1934 (47 U.S.C. 230)'' and
inserting ``section 232 of the Communications Act of
1934''.
(8) Title 31, united states code.--Section 5362(6) of title
31, United States Code, is amended by striking ``section 230(f)
of the Communications Act of 1934 (47 U.S.C. 230(f))'' and
inserting ``section 232 of the Communications Act of 1934''.
(9) National telecommunications and information
administration organization act.--Section 157(e)(1) of the
National Telecommunications and Information Administration
Organization Act (47 U.S.C. 941(e)(1)) is amended, in the
matter preceding subparagraph (A), by striking ``section 230(c)
of the Communications Act of 1934 (47 U.S.C. 230(c))'' and
inserting ``section 232(e) of the Communications Act of 1934''.
(c) Applicability.--Subsections (c) and (d) of section 232 of the
Communications Act of 1934, as added by subsection (a), shall apply to
a common carrier technology company on and after the date that is 90
days after the date of enactment of this Act.
<all>
Introduced in Senate
Read twice and referred to the Committee on Commerce, Science, and Transportation.
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