Ending Support for Internet Censorship Act

II 116TH CONGRESS 1ST SESSION S. 1914 To amend the Communications Decency Act to encourage providers of inter- active computer services to provide content moderation that is politically neutral. IN THE SENATE OF THE UNITED STATES JUNE 19, 2019 Mr. HAWLEY introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To amend the Communications Decency Act to encourage providers of interactive computer services to provide con- tent moderation that is politically neutral. 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 ‘‘Ending Support for 4 Internet Censorship Act’’. 5 SEC. 2. POLITICAL NEUTRALITY IN CONTENT MODERA- 6 TION. 7 (a) IN GENERAL.—Section 230 of the Communica- 8 tions Act of 1934 (47 U.S.C. 230) is amended— 9 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1914 IS (1) in subsection (c), by adding at the end the 1 following new paragraph: 2 ‘‘(3) REQUIREMENT OF POLITICALLY UNBIASED 3 CONTENT MODERATION BY COVERED COMPANIES.— 4 ‘‘(A) IN GENERAL.—Paragraphs (1) and 5 (2) shall not apply in the case of a covered com- 6 pany unless the company has in effect an im- 7 munity certification from the Federal Trade 8 Commission (referred to in this paragraph as 9 the ‘Commission’) under subparagraph (B) that 10 the company does not moderate information 11 provided by other information content providers 12 in a manner that is biased against a political 13 party, political candidate, or political viewpoint. 14 ‘‘(B) FEDERAL TRADE COMMISSION IMMU- 15 NITY CERTIFICATION.— 16 ‘‘(i) IN GENERAL.—The Commission 17 shall certify any provider of an interactive 18 computer service that— 19 ‘‘(I) is a covered company or an- 20 ticipates that it will become a covered 21 company within the next 2 years; 22 ‘‘(II) applies to the Commission 23 for a certification under this subpara- 24 graph; and 25 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1914 IS ‘‘(III) proves to the Commission 1 by clear and convincing evidence that 2 the provider does not (and, during the 3 2-year period preceding the date on 4 which the provider submits the appli- 5 cation for certification, did not) mod- 6 erate information provided by other 7 information content providers in a po- 8 litically biased manner. 9 ‘‘(ii) POLITICALLY BIASED MODERA- 10 TION.—The moderation practices of a pro- 11 vider of an interactive computer service are 12 politically biased if— 13 ‘‘(I) the provider moderates in- 14 formation provided by other informa- 15 tion content providers in a manner 16 that— 17 ‘‘(aa) is designed to nega- 18 tively affect a political party, po- 19 litical candidate, or political view- 20 point; or 21 ‘‘(bb) disproportionately re- 22 stricts or promotes access to, or 23 the availability of, information 24 from a political party, political 25 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1914 IS candidate, or political viewpoint; 1 or 2 ‘‘(II) an officer or employee of 3 the provider makes a decision about 4 moderating information provided by 5 other information content providers 6 that is motivated by an intent to neg- 7 atively affect a political party, political 8 candidate, or political viewpoint. 9 ‘‘(iii) EXCEPTIONS.— 10 ‘‘(I) BUSINESS NECESSITY.—An 11 action of a provider of an interactive 12 computer service that disproportion- 13 ately restricts access to, or the avail- 14 ability of, information from a political 15 party, political candidate, or political 16 viewpoint shall not be considered to be 17 a politically biased moderation prac- 18 tice if the action is necessary for busi- 19 ness or the information involved is not 20 speech that would be protected under 21 the First Amendment of the United 22 States Constitution, there is no avail- 23 able alternative that has a less dis- 24 proportionate effect, and the provider 25 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1914 IS does not act with the intent to dis- 1 criminate based on political affiliation, 2 political party, or political viewpoint. 3 ‘‘(II) ACTIONS BY EMPLOYEES.— 4 A provider of an interactive computer 5 service shall not be denied a certifi- 6 cation under this subparagraph on the 7 basis of an employee of the provider 8 acting in the manner described in 9 clause (ii)(II) in making a decision 10 about moderating information pro- 11 vided by other information content 12 providers if the provider, immediately 13 upon learning of the actions of the 14 employee— 15 ‘‘(aa) publicly discloses in a 16 conspicuous manner that an em- 17 ployee of the provider acted in a 18 politically biased manner with re- 19 spect to moderating information 20 content; and 21 ‘‘(bb) terminates or other- 22 wise disciplines the employee. 23 ‘‘(iv) CERTIFICATION PROCESS.— 24 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1914 IS ‘‘(I) APPROVAL.—The Commis- 1 sion shall not certify a provider of an 2 interactive computer service under 3 this subparagraph unless at least one 4 more than a majority of the Commis- 5 sioners approve such certification. 6 ‘‘(II) TIMELINE.—The Commis- 7 sion shall ensure that timely applica- 8 tions for certification under this sub- 9 paragraph are processed within 6 10 months. 11 ‘‘(III) PUBLICATION OF DIS- 12 SENTING OPINIONS.—The Commission 13 shall make publicly available the dis- 14 senting opinion of any Commissioner 15 who disagrees with a decision of the 16 Commission to certify, or deny certifi- 17 cation to, a provider of an interactive 18 computer service. 19 ‘‘(IV) PUBLIC INPUT.—The Com- 20 mission shall establish a process to 21 allow information content providers 22 to— 23 ‘‘(aa) submit complaints or 24 evidence that they have been sub- 25 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1914 IS ject to politically biased content 1 moderation by a provider of an 2 interactive computer service; and 3 ‘‘(bb) attend or participate 4 in any hearings that the Commis- 5 sion holds with respect to an ap- 6 plication for certification from a 7 provider. 8 ‘‘(V) RENEWALS.—An applica- 9 tion to renew a certification shall be 10 treated in the same manner as an ap- 11 plication for a new certification. 12 ‘‘(C) DURATION OF CERTIFICATION.— 13 ‘‘(i) IN GENERAL.—Subject to clause 14 (ii), a certification obtained under subpara- 15 graph (B) shall remain in effect with re- 16 spect to a provider of an interactive com- 17 puter service for a period of 2 years, and 18 may subsequently be renewed for addi- 19 tional 2-year periods. 20 ‘‘(ii) EXTENSION FOR PROCESSING A 21 SUBSEQUENT APPLICATION.—If a provider 22 of an interactive computer service submits 23 an application to renew a certification 24 under subparagraph (B) while such certifi- 25 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1914 IS cation is still in effect, such certification 1 shall remain in effect while the Commis- 2 sion processes such application, but in no 3 case shall a certification remain in effect 4 for more than 30 months without being re- 5 newed. 6 ‘‘(D) COSTS.— 7 ‘‘(i) IN GENERAL.—The Commission 8 shall charge a fee in connection with an 9 application from a provider of an inter- 10 active computer service for a certification 11 (or a renewal of a certification) under sub- 12 paragraph (B). 13 ‘‘(ii) LIMITATION.—The amount of 14 any fee imposed under clause (i) with re- 15 spect to an application shall not exceed the 16 costs to the Commission in processing such 17 application.’’; and 18 (2) in subsection (f), by adding at the end the 19 following new paragraphs: 20 ‘‘(5) COVERED COMPANY.—The term ‘covered 21 company’ means a provider of an interactive com- 22 puter service (other than an organization described 23 in section 501(c) of the Internal Revenue Code of 24 1986 which is exempt from taxation under section 25 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1914 IS 501(a) of such Code) that, at any time during the 1 most recent 12-month period— 2 ‘‘(A) had more than 30,000,000 active 3 monthly users in the United States; 4 ‘‘(B) had more than 300,000,000 active 5 monthly users worldwide; or 6 ‘‘(C) had more than $500,000,000 in glob- 7 al annual revenue. 8 ‘‘(6) MODERATE.— 9 ‘‘(A) IN GENERAL.—The term ‘moderate’ 10 means— 11 ‘‘(i) to influence if, when, where, or 12 how information or other content provided 13 by a third-party user appears on a covered 14 company’s interactive computer service; or 15 ‘‘(ii) to alter the information or other 16 content provided by a third-party user that 17 appears on a covered company’s interactive 18 computer service. 19 ‘‘(B) ALGORITHMS.—Such term shall in- 20 clude actions taken through an algorithm or 21 other automated process. 22 ‘‘(7) BUSINESS NECESSITY.—The term ‘nec- 23 essary for business’ refers to a lawful act that ad- 24 vances the growth, development, or profitability of a 25 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1914 IS company but does not include any action designed to 1 appeal to, or gain favor from, persons or groups be- 2 cause of their political beliefs, political party mem- 3 bership, or support for political candidates.’’. 4 (b) TECHNICAL AMENDMENT.—Section 230(c)(2)(B) 5 of the Communications Act of 1934 (47 U.S.C. 6 230(c)(2)(B)) is amended by striking ‘‘paragraph (1)’’ 7 and inserting ‘‘subparagraph (A)’’. 8 (c) EFFECTIVE DATE.—The amendments made by 9 subsection (a) shall take effect on the date that is 18 10 months after the date of enactment of this Act. 11 SEC. 3. AUTHORITIES AND DUTIES OF THE FEDERAL 12 TRADE COMMISSION. 13 (a) IN GENERAL.—The Federal Trade Commission 14 (referred to in this section as the ‘‘Commission’’) is au- 15 thorized to do the following: 16 (1) STAFFING.—To hire sufficient staff (wheth- 17 er on a part-time, full-time, or contract basis) to 18 process applications under paragraph (3) of section 19 230(c) of the Communications Act of 1934 (47 20 U.S.C. 230(c)), as added by section 2(a). 21 (2) APPLICATIONS PROCESSES.—To establish 22 processes to certify covered companies under para- 23 graph (3) of such section 230(c) of the Communica- 24 VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1914 IS tions Act of 1934 (including setting rates for appli- 1 cation fees and setting application deadlines). 2 (b) RULEMAKING AUTHORITY.—Not later than 180 3 days after the date of enactment of this Act, the Commis- 4 sion shall promulgate regulations, in accordance with sec- 5 tion 553 of title 5, United States Code, to carry out this 6 section and the amendments made by section 2(a). 7 (c) REPORTS.—Not later than 5 years after the date 8 of enactment of this Act, and every 5 years thereafter, 9 the Commission shall submit a report to Congress on 10 whether the ability of interactive computer services (as 11 such term is defined in section 230(f) of the Communica- 12 tions Act of 1934 (47 U.S.C. 230(f))) to moderate content 13 provided by other information content providers is such 14 that the protection provided by section 230(c) of such Act 15 is no longer necessary or should be modified. 16 Æ VerDate Sep 11 2014 03:15 Jun 21, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S1914.IS S1914 pamtmann on DSKBFK8HB2PROD with BILLS