II 

117TH CONGRESS 

1ST SESSION S. 2228 

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. 

IN THE SENATE OF THE UNITED STATES 

JUNE 24, 2021 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Disincentivizing Inter5 net Service Censorship of Online Users and Restrictions 

6 on Speech and Expression Act’’ or the ‘‘DISCOURSE 

7 Act’’. 


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1 SEC. 2. CONTENT MODERATION, CREATION AND DEVELOP2 MENT, AND DISTRIBUTION. 

3 (a) TREATMENT AS PUBLISHER OR SPEAKER CON4 TINGENT ON CONTENT MANAGEMENT PRACTICES.—Sec5 tion 230 of the Communications Act of 1934 (47 U.S.C. 

6 230) is amended— 

7 (1) in subsection (c)(1)— 

8 (A) by striking ‘‘No provider’’ and insert9 ing the following: 

10 ‘‘(A) IN GENERAL.—Subject to subpara11 graph (B), no provider’’; and 

12 (B) by adding at the end the following: 

13 ‘‘(B) NOTIFICATION OF PARENTAL CON14 TROL PROTECTIONS.—Subparagraph (A) shall 

15 not apply to a provider of an interactive com16 puter service with a dominant market share 

17 that violates subsection (d).’’; and 

18 (2) in subsection (f)— 

19 (A) in paragraph (3)— 

20 (i) by striking ‘‘The term’’ and insert21 ing the following: 

22 ‘‘(A) IN GENERAL.—The term’’; and 

23 (ii) by adding at the end the fol24 lowing: 


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1 ‘‘(B) CONTENT MODERATION.—If an inter2 active computer service provider with a domi3 nant market share— 

4 ‘‘(i) engages in a content moderation 

5 activity that reasonably appears to express, 

6 promote, or suppress a discernible view7 point for a reason that is not protected 

8 from liability under subsection (c)(2), in9 cluding reducing or eliminating the ability 

10 of an information content provider to earn 

11 revenue, with respect to any information, 

12 the interactive computer service provider 

13 shall be deemed to be an information con14 tent provider with respect to that informa15 tion; or 

16 ‘‘(ii) engages in a pattern or practice 

17 of content moderation activity that reason18 ably appears to express, promote, or sup19 press a discernible viewpoint for a reason 

20 that is not protected from liability under 

21 subsection (c)(2), including reducing or 

22 eliminating the ability of an information 

23 content provider to earn revenue, the inter24 active computer service provider shall be 

25 deemed to be an information content proVerDate Sep 11 2014 05:25 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2228.IS S2228

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1 vider with respect to all information that is 

2 provided through the interactive computer 

3 service. 

4 ‘‘(C) USE OF TARGETED ALGORITHMIC AM5 PLIFICATION.— 

6 ‘‘(i) IN GENERAL.—If an interactive 

7 computer service provider with a dominant 

8 market share— 

9 ‘‘(I) amplifies information pro10 vided by an information content pro11 vider by using an algorithm or other 

12 automated computer process to target 

13 the information directly to users with14 out the request of a sending or receiv15 ing user, the interactive computer 

16 service provider shall be deemed to be 

17 an information content provider with 

18 respect to that information; or 

19 ‘‘(II) engages in a pattern or 

20 practice of amplifying information 

21 provided by an information content 

22 provider by using an algorithm or 

23 other automated computer process to 

24 target the information directly to 

25 users without the request of a sending 


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1 or receiving user, the interactive com2 puter service provider shall be deemed 

3 to be an information content provider 

4 with respect to all information that is 

5 provided through the interactive com6 puter service. 

7 ‘‘(ii) EXCEPTIONS.—Clause (i) shall 

8 not apply to the use of an algorithm or 

9 other computer process to— 

10 ‘‘(I) amplify or target directly to 

11 a user any information that is the re12 sult of a search function performed by 

13 the user; or 

14 ‘‘(II) sort data chronologically or 

15 alphabetically. 

16 ‘‘(D) INFORMATION CREATION OR DEVEL17 OPMENT.—If an interactive computer service 

18 provider with a dominant market share— 

19 ‘‘(i) solicits, comments upon, funds, or 

20 affirmatively and substantively contributes 

21 to, modifies, or alters information provided 

22 by an information content provider, the 

23 interactive computer service provider shall 

24 be deemed to be an information content 


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1 provider with respect to that information; 

2 or 

3 ‘‘(ii) engages in a pattern or practice 

4 of soliciting, commenting upon, funding, or 

5 affirmatively and substantively contrib6 uting to, modifying, or altering information 

7 provided by an information content pro8 vider, the interactive computer service pro9 vider shall be deemed to be an information 

10 content provider with respect to all infor11 mation that is provided through the inter12 active computer service.’’; and 

13 (B) by adding at the end the following: 

14 ‘‘(5) CONTENT MODERATION ACTIVITY.—The 

15 term ‘content moderation activity’ means editing, de16 leting, throttling, limiting the reach of, reducing or 

17 eliminating the ability of an information content pro18 vider to earn revenue from, or commenting upon, in19 formation provided by an information content pro20 vider, or terminating or limiting an account or 

21 usership, if the activity is based on content-based 

22 criteria. 

23 ‘‘(6) PATTERN OR PRACTICE.—The term ‘pat24 tern or practice’ means any formal or informal pol25 icy or rule, whether created by a human or genVerDate Sep 11 2014 05:25 Jul 02, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2228.IS S2228

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1 erated by a computer, as applied or used by an 

2 interactive computer service provider.’’. 

3 (b) CLARIFYING CATEGORIES OF OBJECTIONABLE

4 MATERIAL.—Section 230(c)(2) of the Communications 

5 Act of 1934 (47 U.S.C. 230(c)(2)) is amended— 

6 (1) in subparagraph (A)— 

7 (A) by striking ‘‘considers to be’’ and in8 serting ‘‘has an objectively reasonable belief is’’; 

9 (B) by inserting ‘‘promoting terrorism or 

10 violent extremism,’’ after ‘‘violent,’’; and 

11 (C) by striking ‘‘or otherwise objection12 able’’ and inserting ‘‘promoting self-harm, or 

13 unlawful’’; and 

14 (2) in subparagraph (B), by striking ‘‘para15 graph (1)’’ and inserting ‘‘subparagraph (A)’’. 

16 (c) RELIGIOUS LIBERTY EXCEPTION TO CIVIL LI17 ABILITY PROTECTIONS.—Section 230(c)(2) of the Com18 munications Act of 1934 (47 U.S.C. 230(c)(2)), as amend19 ed by subsection (b), is amended— 

20 (1) by redesignating subparagraphs (A) and 

21 (B) as clauses (i) and (ii), respectively, and adjust22 ing the margins accordingly; 

23 (2) by striking ‘‘No provider’’ and inserting the 

24 following: 


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1 ‘‘(A) IN GENERAL.—Except as provided in 

2 subparagraph (B), no provider’’; 

3 (3) in subparagraph (A)(ii), as so designated, 

4 by striking ‘‘subparagraph (A)’’ and inserting 

5 ‘‘clause (i)’’; and 

6 (4) by adding at the end the following: 

7 ‘‘(B) RELIGIOUS LIBERTY EXCEPTION.— 

8 Subparagraph (A) shall not apply to any action 

9 taken with respect to religious material in a 

10 manner that burdens the exercise of religion, as 

11 defined in section 5 of the Religious Freedom 

12 Restoration Act of 1993 (42 U.S.C. 2000bb 

13 –2).’’. 

14 (d) DISCLOSURE OF CONTENT MANAGEMENT MECH15 ANISMS AND PRACTICES.—Section 230(d) of the Commu16 nications Act of 1934 (47 U.S.C. 230(d)) is amended— 

17 (1) by striking ‘‘A provider’’ and inserting the 

18 following: 

19 ‘‘(1) PARENTAL CONTROL PROTECTIONS.—A 

20 provider’’; and 

21 (2) by adding at the end the following: 

22 ‘‘(2) DISCLOSURE OF CONTENT MANAGEMENT

23 MECHANISMS AND PRACTICES.— 

24 ‘‘(A) IN GENERAL.—A provider of an 

25 interactive computer service that provides the 


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1 service through a mass-market offering to the 

2 public shall publicly disclose accurate informa3 tion regarding the content moderation activity 

4 of the service, including editing, deleting, throt5 tling, limiting the reach of, reducing or elimi6 nating the ability of an information content 

7 provider to earn revenue from, or commenting 

8 upon, information provided by an information 

9 content provider, terminating or limiting an ac10 count or usership, and any other content mod11 eration, promotion, and other curation prac12 tices, sufficient to enable— 

13 ‘‘(i) consumers to make informed 

14 choices regarding the purchase and use of 

15 the service; and 

16 ‘‘(ii) entrepreneurs and other small 

17 businesses to develop, market, and main18 tain offerings by means of the service. 

19 ‘‘(B) MANNER OF DISCLOSURE.—A pro20 vider of an interactive computer service shall 

21 make the disclosure under subparagraph (A)— 

22 ‘‘(i) through a publicly available, eas23 ily accessible website; or 

24 ‘‘(ii) by submitting the information 

25 described in that subparagraph to the 


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1 Commission, which shall make the infor2 mation available to the public through the 

3 website of the Commission.’’. 

4 (e) CLARIFYING THAT IMMUNITY IS AN AFFIRMA5 TIVE DEFENSE.—Section 230(c)(1) of the Communica6 tions Act of 1934 (47 U.S.C. 230(c)(1)), as amended by 

7 subsection (a)(1), is amended— 

8 (1) in subparagraph (A), as so designated, by 

9 striking ‘‘subparagraph (B)’’ and inserting ‘‘sub10 paragraphs (B) and (C)’’; and 

11 (2) by adding at the end the following: 

12 ‘‘(C) AFFIRMATIVE DEFENSE.—In a crimi13 nal or civil action against a provider or user of 

14 an interactive computer service that treats the 

15 provider or user as the publisher or speaker of 

16 any information, the provider or user shall bear 

17 the burden of proving that the provider or user 

18 is not an information content provider with re19 spect to that information for purposes of sub20 paragraph (A).’’. 

Æ 


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