DISCOURSE Act

II 118TH CONGRESS 1ST SESSION S. 921 To amend section 230 of the Communications Act of 1934 to correct short- comings in how that section addresses content moderation, content cre- ation and development, and content distribution. IN THE SENATE OF THE UNITED STATES MARCH 22, 2023 Mr. RUBIO (for himself and Mr. BRAUN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To amend section 230 of the Communications Act of 1934 to correct shortcomings in how that section addresses content moderation, content creation and development, and content distribution. 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 ‘‘Disincentivizing Inter- 4 net Service Censorship of Online Users and Restrictions 5 on Speech and Expression Act’’ or the ‘‘DISCOURSE 6 Act’’. 7 VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS 2 •S 921 IS SEC. 2. CONTENT MODERATION, CREATION AND DEVELOP- 1 MENT, AND DISTRIBUTION. 2 (a) TREATMENT AS PUBLISHER OR SPEAKER CON- 3 TINGENT ON CONTENT MANAGEMENT PRACTICES.—Sec- 4 tion 230 of the Communications Act of 1934 (47 U.S.C. 5 230) is amended— 6 (1) in subsection (c)(1)— 7 (A) by striking ‘‘No provider’’ and insert- 8 ing the following: 9 ‘‘(A) IN GENERAL.—Subject to subpara- 10 graph (B), no provider’’; and 11 (B) by adding at the end the following: 12 ‘‘(B) NOTIFICATION OF PARENTAL CON- 13 TROL PROTECTIONS.—Subparagraph (A) shall 14 not apply to a provider of an interactive com- 15 puter service with a dominant market share 16 that violates subsection (d).’’; and 17 (2) in subsection (f)— 18 (A) in paragraph (3)— 19 (i) by striking ‘‘The term’’ and insert- 20 ing the following: 21 ‘‘(A) IN GENERAL.—The term’’; and 22 (ii) by adding at the end the fol- 23 lowing: 24 VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS 3 •S 921 IS ‘‘(B) CONTENT MODERATION.—If an inter- 1 active computer service provider with a domi- 2 nant market share— 3 ‘‘(i) engages in a content moderation 4 activity that reasonably appears to express, 5 promote, or suppress a discernible view- 6 point for a reason that is not protected 7 from liability under subsection (c)(2), in- 8 cluding reducing or eliminating the ability 9 of an information content provider to earn 10 revenue, with respect to any information, 11 the interactive computer service provider 12 shall be deemed to be an information con- 13 tent provider with respect to that informa- 14 tion; or 15 ‘‘(ii) engages in a pattern or practice 16 of content moderation activity that reason- 17 ably appears to express, promote, or sup- 18 press a discernible viewpoint for a reason 19 that is not protected from liability under 20 subsection (c)(2), including reducing or 21 eliminating the ability of an information 22 content provider to earn revenue, the inter- 23 active computer service provider shall be 24 deemed to be an information content pro- 25 VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS 4 •S 921 IS vider with respect to all information that is 1 provided through the interactive computer 2 service. 3 ‘‘(C) USE OF TARGETED ALGORITHMIC AM- 4 PLIFICATION.— 5 ‘‘(i) IN GENERAL.—If an interactive 6 computer service provider with a dominant 7 market share— 8 ‘‘(I) amplifies information pro- 9 vided by an information content pro- 10 vider by using an algorithm or other 11 automated computer process to target 12 the information directly to users with- 13 out the request of the sending or re- 14 ceiving user, the interactive computer 15 service provider shall be deemed to be 16 an information content provider with 17 respect to that information; or 18 ‘‘(II) engages in a pattern or 19 practice of amplifying information 20 provided by an information content 21 provider by using an algorithm or 22 other automated computer process to 23 target the information directly to 24 users without the request of the send- 25 VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS 5 •S 921 IS ing or receiving user, the interactive 1 computer service provider shall be 2 deemed to be an information content 3 provider with respect to all informa- 4 tion that is provided through the 5 interactive computer service. 6 ‘‘(ii) EXCEPTIONS.—Clause (i) shall 7 not apply to the use of an algorithm or 8 other computer process to— 9 ‘‘(I) amplify or target directly to 10 a user any information that is the re- 11 sult of a search function performed by 12 the user; or 13 ‘‘(II) sort data chronologically or 14 alphabetically. 15 ‘‘(D) INFORMATION CREATION OR DEVEL- 16 OPMENT.—If an interactive computer service 17 provider with a dominant market share— 18 ‘‘(i) solicits, comments upon, funds, or 19 affirmatively and substantively contributes 20 to, modifies, or alters information provided 21 by an information content provider, the 22 interactive computer service provider shall 23 be deemed to be an information content 24 VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS 6 •S 921 IS provider with respect to that information; 1 or 2 ‘‘(ii) engages in a pattern or practice 3 of soliciting, commenting upon, funding, or 4 affirmatively and substantively contrib- 5 uting to, modifying, or altering information 6 provided by an information content pro- 7 vider, the interactive computer service pro- 8 vider shall be deemed to be an information 9 content provider with respect to all infor- 10 mation that is provided through the inter- 11 active computer service.’’; and 12 (B) by adding at the end the following: 13 ‘‘(5) CONTENT MODERATION ACTIVITY.—The 14 term ‘content moderation activity’ means editing, de- 15 leting, throttling, limiting the reach of, reducing or 16 eliminating the ability of an information content pro- 17 vider to earn revenue from, or commenting upon, in- 18 formation provided by an information content pro- 19 vider, or terminating or limiting an account or 20 usership, if the activity is based on content-based 21 criteria. 22 ‘‘(6) PATTERN OR PRACTICE.—The term ‘pat- 23 tern or practice’ means any formal or informal pol- 24 icy or rule, whether created by a human or gen- 25 VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS 7 •S 921 IS erated by a computer, as applied or used by an 1 interactive computer service provider.’’. 2 (b) CLARIFYING CATEGORIES OF OBJECTIONABLE 3 MATERIAL.—Section 230(c)(2) of the Communications 4 Act of 1934 (47 U.S.C. 230(c)(2)) is amended— 5 (1) in subparagraph (A)— 6 (A) by striking ‘‘considers to be’’ and in- 7 serting ‘‘has an objectively reasonable belief is’’; 8 (B) by inserting ‘‘promoting terrorism or 9 violent extremism,’’ after ‘‘violent,’’; and 10 (C) by striking ‘‘or otherwise objection- 11 able’’ and inserting ‘‘promoting self-harm, or 12 unlawful’’; and 13 (2) in subparagraph (B), by striking ‘‘para- 14 graph (1)’’ and inserting ‘‘subparagraph (A)’’. 15 (c) RELIGIOUS LIBERTY EXCEPTION TO CIVIL LI- 16 ABILITY PROTECTIONS.—Section 230(c)(2) of the Com- 17 munications Act of 1934 (47 U.S.C. 230(c)(2)), as amend- 18 ed by subsection (b), is amended— 19 (1) by redesignating subparagraphs (A) and 20 (B) as clauses (i) and (ii), respectively, and adjust- 21 ing the margins accordingly; 22 (2) by striking ‘‘No provider’’ and inserting the 23 following: 24 VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS 8 •S 921 IS ‘‘(A) IN GENERAL.—Except as provided in 1 subparagraph (B), no provider’’; 2 (3) in subparagraph (A)(ii), as so designated, 3 by striking ‘‘subparagraph (A)’’ and inserting 4 ‘‘clause (i)’’; and 5 (4) by adding at the end the following: 6 ‘‘(B) RELIGIOUS LIBERTY EXCEPTION.— 7 Subparagraph (A) shall not apply to any action 8 taken with respect to religious material in a 9 manner that burdens the exercise of religion, as 10 defined in section 5 of the Religious Freedom 11 Restoration Act of 1993 (42 U.S.C. 2000bb 12 –2).’’. 13 (d) DISCLOSURE OF CONTENT MANAGEMENT MECH- 14 ANISMS AND PRACTICES.—Section 230(d) of the Commu- 15 nications Act of 1934 (47 U.S.C. 230(d)) is amended— 16 (1) by striking ‘‘A provider’’ and inserting the 17 following: 18 ‘‘(1) PARENTAL CONTROL PROTECTIONS.—A 19 provider’’; and 20 (2) by adding at the end the following: 21 ‘‘(2) DISCLOSURE OF CONTENT MANAGEMENT 22 MECHANISMS AND PRACTICES.— 23 ‘‘(A) IN GENERAL.—A provider of an 24 interactive computer service that provides the 25 VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS 9 •S 921 IS service through a mass-market offering to the 1 public shall publicly disclose accurate informa- 2 tion regarding the content moderation activity 3 of the service, including editing, deleting, throt- 4 tling, limiting the reach of, reducing or elimi- 5 nating the ability of an information content 6 provider to earn revenue from, or commenting 7 upon, information provided by an information 8 content provider, terminating or limiting an ac- 9 count or usership, and any other content mod- 10 eration, promotion, and other curation prac- 11 tices, sufficient to enable— 12 ‘‘(i) consumers to make informed 13 choices regarding the purchase and use of 14 the service; and 15 ‘‘(ii) entrepreneurs and other small 16 businesses to develop, market, and main- 17 tain offerings by means of the service. 18 ‘‘(B) MANNER OF DISCLOSURE.—A pro- 19 vider of an interactive computer service shall 20 make the disclosure under subparagraph (A)— 21 ‘‘(i) through a publicly available, eas- 22 ily accessible website; or 23 ‘‘(ii) by submitting the information 24 described in that subparagraph to the 25 VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS 10 •S 921 IS Commission, which shall make the infor- 1 mation available to the public through the 2 website of the Commission.’’. 3 (e) CLARIFYING THAT IMMUNITY IS AN AFFIRMA- 4 TIVE DEFENSE.—Section 230(c)(1) of the Communica- 5 tions Act of 1934 (47 U.S.C. 230(c)(1)), as amended by 6 subsection (a)(1), is amended— 7 (1) in subparagraph (A), as so designated, by 8 striking ‘‘subparagraph (B)’’ and inserting ‘‘sub- 9 paragraphs (B) and (C)’’; and 10 (2) by adding at the end the following: 11 ‘‘(C) AFFIRMATIVE DEFENSE.—In a crimi- 12 nal or civil action against a provider or user of 13 an interactive computer service that treats the 14 provider or user as the publisher or speaker of 15 any information, the provider or user shall bear 16 the burden of proving that the provider or user 17 is not an information content provider with re- 18 spect to that information for purposes of sub- 19 paragraph (A).’’. 20 Æ VerDate Sep 11 2014 22:50 Mar 31, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\S921.IS S921 kjohnson on DSK79L0C42PROD with BILLS