CASE-IT Act

I 116TH CONGRESS 2D SESSION H. R. 8719 To amend section 230 of the Communications Act of 1934 to limit the immunity of providers and users of interactive computer services under such section, and for other purposes. IN THE HOUSE OF REPRESENTATIVES OCTOBER 30, 2020 Mr. STEUBE introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend section 230 of the Communications Act of 1934 to limit the immunity of providers and users of inter- active computer services under such section, and for other purposes. 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 ‘‘Curbing Abuse and 4 Saving Expression In Technology Act’’ or the ‘‘CASE-IT 5 Act’’. 6 VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 8719 IH SEC. 2. LIMITATION OF SECTION 230 IMMUNITY. 1 (a) IN GENERAL.—Section 230(c) of the Communica- 2 tions Act of 1934 (47 U.S.C. 230(c)) is amended by add- 3 ing at the end the following: 4 ‘‘(3) EXCEPTIONS RELATING TO ILLEGAL, 5 EXPLOITIVE, OR HARMFUL CONTENT.— 6 ‘‘(A) IN GENERAL.—During a period de- 7 scribed in subparagraph (D), paragraph (1) 8 shall not apply to a provider or user of an inter- 9 active computer service that creates, develops, 10 posts, materially contributes to, or induces an- 11 other person to create, develop, post, or materi- 12 ally contribute to illegal online content. 13 ‘‘(B) CERTAIN CONTACT BETWEEN ADULT 14 AND MINOR.—During a period described in sub- 15 paragraph (D), paragraph (1) shall not apply to 16 a provider of an interactive computer service 17 that knowingly permits or facilitates an adult 18 having contact through an interactive computer 19 service of such provider with an individual that 20 such adult knows or believes to be a minor, if 21 such contact involves any matter containing ex- 22 plicit verbal descriptions or narrative accounts 23 of sexually explicit nudity, sexual conduct, sex- 24 ual excitement, or sadomasochistic abuse that is 25 VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 8719 IH intended to arouse or satisfy the sexual desire 1 of either such adult or such minor. 2 ‘‘(C) CONTENT THAT IS INDECENT, OB- 3 SCENE, OR OTHERWISE HARMFUL TO MI- 4 NORS.—During a period described in subpara- 5 graph (D), paragraph (1) shall not apply to a 6 provider or user of an interactive computer 7 service that permits or facilitates the distribu- 8 tion of content that— 9 ‘‘(i) is indecent, obscene, or otherwise 10 harmful to minors; and 11 ‘‘(ii) is made readily accessible to mi- 12 nors by the failure of such provider or user 13 to implement a system designed to effec- 14 tively screen users who are minors from 15 accessing such content, to the extent fea- 16 sible using technology available at the time 17 of such distribution. 18 ‘‘(D) PERIOD OF LOSS OF IMMUNITY.— 19 For purposes of subparagraph (A), (B), or (C), 20 a period described in this subparagraph is— 21 ‘‘(i) any 1-year period beginning on 22 the date on which the provider engages in 23 conduct described in such subparagraph; 24 or 25 VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 8719 IH ‘‘(ii) in the case of such conduct that 1 continues for more than 1 day, any 1-year 2 period beginning on the date on which the 3 provider ceases such conduct. 4 ‘‘(E) RULE OF CONSTRUCTION.—This 5 paragraph shall be broadly construed to ad- 6 vance the purposes of this section for the de- 7 ployment of new technologies and policies to 8 block or filter offensive content such as inde- 9 cency, obscenity, pornography, or sexually ex- 10 plicit content so as to prevent any such content 11 from being readily accessible to minors. 12 ‘‘(4) EXCEPTION FOR STIFLING FREE EXPRES- 13 SION.— 14 ‘‘(A) IN GENERAL.—Paragraphs (1) and 15 (2)(A) shall not apply to a provider of an inter- 16 active computer service that is in the business 17 or practice of communicating user-generated 18 content during any period during which such 19 provider— 20 ‘‘(i) is dominant in its market; and 21 ‘‘(ii) makes content moderation deci- 22 sions pursuant to policies or practices that 23 are not reasonably consistent with the 24 First Amendment to the Constitution. 25 VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 8719 IH ‘‘(B) RULE OF CONSTRUCTION.—This 1 paragraph shall be broadly construed to ad- 2 vance the purposes of this section in encour- 3 aging the growth of the internet as a forum for 4 a true diversity of discourse, unique opportuni- 5 ties for cultural development, and myriad ave- 6 nues for intellectual activity, where lawful polit- 7 ical, religious, cultural, social, scientific, and 8 other online content can flourish without dis- 9 crimination based on viewpoint. 10 ‘‘(5) PRIVATE RIGHT OF ACTION.— 11 ‘‘(A) IN GENERAL.—If a provider of an 12 interactive computer service that is dominant in 13 its market bans, blocks, down-ranks, demone- 14 tizes in its advertising, or otherwise subjects to 15 similar adverse treatment the content of any in- 16 formation content provider that uses an inter- 17 active computer service of such dominant pro- 18 vider by reason of the failure of such dominant 19 provider to make content moderation decisions 20 pursuant to policies or practices that are rea- 21 sonably consistent with the First Amendment to 22 the Constitution, such information content pro- 23 vider may bring a civil action in an appropriate 24 State court or an appropriate district court of 25 VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 8719 IH the United States against such dominant pro- 1 vider to obtain the relief described in subpara- 2 graph (B). 3 ‘‘(B) RELIEF.— 4 ‘‘(i) IN GENERAL.—An information 5 content provider that prevails in a civil ac- 6 tion under subparagraph (A) may obtain 7 the following relief: 8 ‘‘(I) The greater of— 9 ‘‘(aa) compensatory dam- 10 ages, including both personal and 11 business economic loss; or 12 ‘‘(bb) liquidated damages in 13 the amount of $500,000 for each 14 incident of adverse treatment de- 15 scribed in subparagraph (A). 16 ‘‘(II) Punitive damages, in the 17 case of a reckless failure of the pro- 18 vider of the interactive computer serv- 19 ice to make content moderation deci- 20 sions pursuant to policies or practices 21 that are reasonably consistent with 22 the First Amendment to the Constitu- 23 tion. 24 VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 8719 IH ‘‘(ii) TREBLE DAMAGES.—In the case 1 of a willful or knowing failure of the pro- 2 vider of the interactive computer service to 3 make content moderation decisions pursu- 4 ant to policies or practices that are reason- 5 ably consistent with the First Amendment 6 to the Constitution, the information con- 7 tent provider may obtain, instead of the 8 amount determined under clause (i)(I), 9 three times such amount. 10 ‘‘(6) CERTIFICATION REGARDING MARKET 11 DOMINANCE AND CONTENT MODERATION POLICIES 12 AND PRACTICES.— 13 ‘‘(A) IN GENERAL.—Not later than 120 14 days after the date of the enactment of this 15 paragraph, the Federal Trade Commission and 16 the Attorney General shall promulgate regula- 17 tions to establish a process under which a pro- 18 vider of an interactive computer service with 19 net assets or annual net revenue exceeding 20 $500,000,000 may apply for a review and cer- 21 tification by the Federal Trade Commission, 22 acting with the concurrence of the Attorney 23 General— 24 VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 8719 IH ‘‘(i) that such provider is not domi- 1 nant in its market; or 2 ‘‘(ii) if such provider is determined to 3 be dominant in its market under clause (i), 4 that the policies and practices of such 5 dominant provider relating to content mod- 6 eration, as applied to information content 7 providers using the interactive computer 8 service or interactive computer services of 9 such dominant provider, are reasonably 10 consistent with the First Amendment to 11 the Constitution. 12 ‘‘(B) EFFECT OF CERTIFICATION.—A cer- 13 tification under subparagraph (A) may, in the 14 discretion of the trial court, be admissible in 15 any civil action or criminal prosecution in which 16 it is asserted that paragraph (4) applies to the 17 provider to which such certification relates, or 18 in any civil action brought under paragraph (5) 19 against such provider, but such certification 20 shall not be determinative on the issues de- 21 scribed in clauses (i) and (ii) of such subpara- 22 graph.’’. 23 VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 8719 IH (b) DEFINITIONS.—Section 230(f) of the Commu- 1 nications Act of 1934 (47 U.S.C. 230(f)) is amended by 2 adding at the end the following: 3 ‘‘(5) DOMINANT IN ITS MARKET.—The term 4 ‘dominant in its market’ means, with respect to a 5 provider of an interactive computer service, that 6 such provider has gained substantial, sustained mar- 7 ket power over any competitors. Actual monopoly 8 control over a market is not required to satisfy the 9 preceding sentence. 10 ‘‘(6) REASONABLY CONSISTENT WITH THE 11 FIRST AMENDMENT TO THE CONSTITUTION.—The 12 term ‘reasonably consistent with the First Amend- 13 ment to the Constitution’ means, with respect to the 14 policies and practices of a provider of an interactive 15 computer service relating to content moderation, 16 that such provider conforms such policies and prac- 17 tices to established law under the First Amendment 18 to the Constitution applicable to state actors, re- 19 gardless of whether or not such provider is a state 20 actor, to the extent feasible taking into consideration 21 the developing capabilities and complexities of tech- 22 nology and the unique characteristics of online com- 23 munication platforms. 24 VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 8719 IH ‘‘(7) MINOR.—The term ‘minor’ means an indi- 1 vidual who is under 18 years of age. 2 ‘‘(8) HARMFUL TO MINORS.—The term ‘harm- 3 ful to minors’ means, with respect to content, that 4 such content contains a description or representation 5 of nudity, sexual conduct, sexual excitement, or 6 sadomasochistic abuse that— 7 ‘‘(A) predominantly appeals to the pru- 8 rient, shameful, or morbid interest of minors; 9 ‘‘(B) is patently offensive to prevailing 10 standards in the adult community with respect 11 to what is suitable material for minors; and 12 ‘‘(C) is utterly without redeeming social 13 importance for minors. 14 ‘‘(9) ADULT.—The term ‘adult’ means an indi- 15 vidual who is 18 years of age or older.’’. 16 (c) EFFECTIVE DATE.—The amendments made by 17 this section shall apply with respect to conduct by a pro- 18 vider of an interactive computer service (as defined in sec- 19 tion 230(f) of the Communications Act of 1934 (47 U.S.C. 20 230(f))) that occurs after the date of the enactment of 21 this Act. 22 Æ VerDate Sep 11 2014 02:07 Nov 24, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6301 E:\BILLS\H8719.IH H8719 pbinns on DSKJLVW7X2PROD with BILLS