21st Century FREE Speech Act

II 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 on- line communications platforms. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘21st Century Founda- 4 tion for the Right to Express and Engage in Speech Act’’ 5 or the ‘‘21st Century FREE Speech Act’’. 6 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 1384 IS SEC. 2. REASONABLE, NON-DISCRIMINATORY ACCESS TO 1 ONLINE COMMUNICATIONS PLATFORMS; 2 BLOCKING AND SCREENING OF OFFENSIVE 3 MATERIAL. 4 (a) IN GENERAL.—Part I of title II of the Commu- 5 nications Act of 1934 (47 U.S.C. 201 et seq.) is amend- 6 ed— 7 (1) by striking section 230; and 8 (2) by adding at the end the following: 9 ‘‘SEC. 232. REASONABLE, NON-DISCRIMINATORY ACCESS TO 10 ONLINE COMMUNICATIONS PLATFORMS; 11 BLOCKING AND SCREENING OF OFFENSIVE 12 MATERIAL. 13 ‘‘(a) FINDINGS.—Congress finds the following: 14 ‘‘(1) The rapidly developing array of internet 15 and other interactive computer services available to 16 individual Americans represent an extraordinary ad- 17 vance in the availability of educational and informa- 18 tional resources to our citizens. 19 ‘‘(2) These services often offer users a great de- 20 gree of control over the information that they re- 21 ceive, as well as the potential for even greater con- 22 trol in the future as technology continues to develop. 23 ‘‘(3) The internet and other interactive com- 24 puter services offer a forum for a true diversity of 25 political discourse and viewpoints, unique opportuni- 26 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 1384 IS ties for cultural development, and myriad avenues 1 for intellectual activity, and regulation of the inter- 2 net must be tailored to supporting those activities. 3 ‘‘(4) The internet and other interactive com- 4 puter services have flourished, to the benefit of all 5 Americans, with a minimum of government regula- 6 tion, and regulation should be limited to what is nec- 7 essary to preserve the societal benefits provided by 8 the internet. 9 ‘‘(5) Increasingly Americans rely on internet 10 platforms and websites for a variety of political, edu- 11 cational, cultural, and entertainment services and for 12 communication with one another. 13 ‘‘(b) POLICY.—It is the policy of the United States— 14 ‘‘(1) to promote the continued development of 15 the internet and other interactive computer services 16 and other interactive media; 17 ‘‘(2) to preserve a vibrant and competitive free 18 market for the internet and other interactive com- 19 puter services; 20 ‘‘(3) to encourage the development of tech- 21 nologies which maximize user control over what in- 22 formation is received by individuals, families, and 23 schools who use the internet and other interactive 24 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 1384 IS computer services, rather than control and censor- 1 ship driven by interactive computer services; 2 ‘‘(4) to facilitate the development and utiliza- 3 tion of blocking and filtering technologies that em- 4 power parents to restrict their children’s access to 5 objectionable or inappropriate online material; 6 ‘‘(5)(A) to ensure that the internet serves as an 7 open forum for— 8 ‘‘(i) a true diversity of discourse and view- 9 points, including political discourse and view- 10 points; 11 ‘‘(ii) unique opportunities for cultural de- 12 velopment; and 13 ‘‘(iii) myriad avenues for intellectual activ- 14 ity; and 15 ‘‘(B) given that the internet is the dominant 16 platform for communication and public debate today, 17 to ensure that major internet communications plat- 18 forms, which function as common carriers in terms 19 of their size, usage, and necessity, are available to 20 all users on reasonable and non-discriminatory terms 21 free from public or private censorship of religious 22 and political speech; 23 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 1384 IS ‘‘(6) to promote consumer protection and trans- 1 parency regarding information and content manage- 2 ment practices by major internet platforms to— 3 ‘‘(A) ensure that consumers understand— 4 ‘‘(i) the products they are using; and 5 ‘‘(ii) what information is being pre- 6 sented to them and why; and 7 ‘‘(B) prevent deceptive or undetectable ac- 8 tions that filter the information presented to 9 consumers; and 10 ‘‘(7) to ensure vigorous enforcement of Federal 11 criminal laws to deter and punish trafficking in on- 12 line obscenity, stalking, and harassment. 13 ‘‘(c) REASONABLE AND NONDISCRIMINATORY AC- 14 CESS TO COMMON CARRIER TECHNOLOGY COMPANIES.— 15 ‘‘(1) IN GENERAL.—A common carrier tech- 16 nology company, with respect to the interactive com- 17 puter service provided by the company— 18 ‘‘(A) shall furnish the interactive computer 19 service to all persons upon reasonable request; 20 ‘‘(B) may not unjustly or unreasonably dis- 21 criminate in charges, practices, classifications, 22 regulations, facilities, treatment, or services for 23 or in connection with the furnishing of the 24 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 1384 IS interactive computer service, directly or indi- 1 rectly, by any means or device; 2 ‘‘(C) may not make or give any undue or 3 unreasonable preference or advantage to any 4 particular person, class of persons, political or 5 religious group or affiliation, or locality; and 6 ‘‘(D) may not subject any particular per- 7 son, class of persons, political or religious group 8 or affiliation, or locality to any undue or unrea- 9 sonable prejudice or disadvantage. 10 ‘‘(2) APPLICABILITY TO BROADBAND.—Para- 11 graph (1) shall not apply with respect to the provi- 12 sion of broadband internet access service. 13 ‘‘(d) CONSUMER PROTECTION AND TRANSPARENCY 14 REGARDING COMMON CARRIER TECHNOLOGY COMPA- 15 NIES.— 16 ‘‘(1) IN GENERAL.—A common carrier tech- 17 nology company shall disclose, through a publicly 18 available, easily accessible website, accurate material 19 regarding the content management, moderation, pro- 20 motion, account termination and suspension, and 21 curation mechanisms and practices of the company 22 sufficient to enable— 23 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 1384 IS ‘‘(A) consumers to make informed choices 1 regarding use of the interactive computer serv- 2 ice provided by the company; and 3 ‘‘(B) persons to develop, market, and 4 maintain consumer-driven content management 5 mechanisms with respect to the interactive com- 6 puter service provided by the company. 7 ‘‘(2) BEST PRACTICES.—The Commission, after 8 soliciting comments from the public, shall publish 9 best practices for common carrier technology compa- 10 nies to disclose content management, moderation, 11 promotion, account termination and suspension, and 12 curation mechanisms and practices in accordance 13 with paragraph (1). 14 ‘‘(3) APPLICABILITY TO BROADBAND.—Para- 15 graph (1) shall not apply with respect to the provi- 16 sion of broadband internet access service. 17 ‘‘(e) PROTECTION FOR ‘GOOD SAMARITAN’ BLOCK- 18 ING AND SCREENING OF OFFENSIVE MATERIAL.— 19 ‘‘(1) TREATMENT OF PUBLISHER OR SPEAK- 20 ER.— 21 ‘‘(A) IN GENERAL.—No provider or user of 22 an interactive computer service shall be treated 23 as the publisher or speaker of any material pro- 24 vided by another information content provider. 25 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 1384 IS ‘‘(B) EXCEPTION.—Subparagraph (A) 1 shall not apply to any affirmative act by a pro- 2 vider or user of an interactive computer service 3 with respect to material posted on the inter- 4 active computer service, whether the act is car- 5 ried out manually or through use of an algo- 6 rithm or other automated or semi-automated 7 process, including— 8 ‘‘(i) providing its own material; 9 ‘‘(ii) commenting or editorializing on, 10 promoting, recommending, or increasing or 11 decreasing the dissemination or visibility to 12 users of its own material or material pro- 13 vided by another information content pro- 14 vider; 15 ‘‘(iii) restricting access to or avail- 16 ability of material provided by another in- 17 formation content provider; or 18 ‘‘(iv) barring or limiting any informa- 19 tion content provider from using the inter- 20 active computer service. 21 ‘‘(2) CIVIL LIABILITY.— 22 ‘‘(A) IN GENERAL.—No provider or user of 23 an interactive computer service shall be held lia- 24 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 1384 IS ble, under subsection (c) or otherwise, on ac- 1 count of— 2 ‘‘(i) any action voluntarily taken in 3 good faith to restrict access to or avail- 4 ability of material that the provider or user 5 considers to be obscene, lewd, lascivious, 6 filthy, excessively violent, harassing, pro- 7 moting self-harm, or unlawful, whether or 8 not such material is constitutionally pro- 9 tected; or 10 ‘‘(ii) any action taken to enable or 11 make available to information content pro- 12 viders or others the technical means to re- 13 strict access to material described in clause 14 (i). 15 ‘‘(B) DEFINITIONS.—For purposes of sub- 16 paragraph (A)— 17 ‘‘(i) the term ‘excessively violent’, with 18 respect to material, means material that— 19 ‘‘(I) is likely to be deemed violent 20 and for mature audiences according to 21 the V-chip regulations and TV Paren- 22 tal Guidelines of the Commission pro- 23 mulgated under sections 303(x) and 24 330(c)(4); or 25 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 1384 IS ‘‘(II) constitutes or intends to 1 advocate domestic terrorism or inter- 2 national terrorism, as defined in sec- 3 tion 2331 of title 18, United States 4 Code; 5 ‘‘(ii) the term ‘harassing’ means mate- 6 rial that— 7 ‘‘(I) is— 8 ‘‘(aa) provided by an infor- 9 mation content provider with the 10 intent to abuse, threaten, or har- 11 ass any specific person; and 12 ‘‘(bb) lacking in any serious 13 literary, artistic, political, or sci- 14 entific value; 15 ‘‘(II) violates the CAN-SPAM 16 Act of 2003 (15 U.S.C. 7701 et seq.); 17 or 18 ‘‘(III) is malicious computer code 19 intended (whether or not by the im- 20 mediate disseminator) to damage or 21 interfere with the operation of a com- 22 puter; 23 ‘‘(iii) the term ‘in good faith’, with re- 24 spect to restricting access to or availability 25 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 1384 IS of specific material, means the provider or 1 user— 2 ‘‘(I) restricts access to or avail- 3 ability of material consistent with 4 publicly available online terms of serv- 5 ice or use that— 6 ‘‘(aa) state plainly and with 7 particularity the criteria that the 8 provider or user of the interactive 9 computer service employs in its 10 content moderation practices, in- 11 cluding by any partially or fully 12 automated processes; and 13 ‘‘(bb) are in effect on the 14 date on which the material is 15 first posted; 16 ‘‘(II) has an objectively reason- 17 able belief that the material falls with- 18 in one of the categories listed in sub- 19 paragraph (A)(i); 20 ‘‘(III)(aa) does not restrict access 21 to or availability of material on decep- 22 tive or pretextual grounds; and 23 ‘‘(bb) does not apply its terms of 24 service or use to restrict access to or 25 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 1384 IS availability of material that is simi- 1 larly situated to material that the pro- 2 vider or user of the interactive com- 3 puter service intentionally declines to 4 restrict; and 5 ‘‘(IV) supplies the information 6 content provider of the material with 7 timely notice describing with particu- 8 larity the reasonable factual basis for 9 the restriction of access and a mean- 10 ingful opportunity to respond, unless 11 the provider or user of the interactive 12 computer service has an objectively 13 reasonable belief that— 14 ‘‘(aa) the material is related 15 to terrorism or criminal activity; 16 or 17 ‘‘(bb) such notice would risk 18 imminent physical harm to oth- 19 ers; and 20 ‘‘(iv) the terms ‘obscene’, ‘lewd’, ‘las- 21 civious’, and ‘filthy’, with respect to mate- 22 rial, mean material that— 23 ‘‘(I) taken as a whole— 24 VerDate Sep 11 2014 05:52 May 27, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1384.IS S1384 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 1384 IS ‘‘(aa) appeals to the prurient 1 interest in sex or portrays sexual 2 conduct in a patently offensive 3 way; and 4 ‘‘(bb) does not have serious 5 literary, artistic, political, or sci- 6 entific value; 7 ‘‘(II) depicts or describes sexual 8 or excretory organs or activities in 9 terms patently offensive to the aver- 10 age person, applying contemporary 11 community standards; or 12 ‘‘(III) signifies the form of immo- 13 rality which has relation to sexual im- 14 purity, taking into account the stand- 15 ards at common law in prosecutions 16 for obscene libel. 17 ‘‘(C) BEST PRACTICES.—The Commission, 18 after soliciting comments from the public, shall 19 publish best practices for making publicly avail- 20 able online terms of service or use that state 21 plainly and with particularity the criteria that 22 the provider or user of an interactive computer 23 service employs in its content moderation prac- 24 tices, i [Text truncated for display. Full text available on Congress.gov.]