21st Century FREE Speech Act
Bill: S.1384 | Sponsor: Sen. Hagerty, Bill (R-TN)
Policy area: Science, Technology, Communications

Summary:
21st Century Foundation for the Right to Express and Engage in Speech Act or the 21st Century FREE Speech Act
This bill makes various changes to liability protections and requirements for providers and users of an interactive computer service (e.g., a social media company).
The bill replaces existing liability protections (sometimes referred to as Section 230 protection) related to content provided by third parties with more limited protections.
The bill provides some liability protection for third-party content, but the protection shall not apply to a provider or user who carries out certain affirmative acts, such as barring users from the service or restricting access to or availability of material. However, the protection shall apply if the action is taken in good faith to restrict access to or availability of obscene, unlawful, or other similarly objectionable material.
Additionally, the bill places specific requirements on common carrier technology companies, defined in the bill as providers that offer services to the public and have over 100 million active monthly users. These companies must
Aggrieved individuals and state entities may sue to enforce these requirements, and the Federal Communications Commission must develop best practices for complying with the requirements.
The bill's provisions do not apply to designated areas of law, including criminal law and state law.

To repeal section 230 of the Communications Act of 1934 and ensure 
    reasonable, non-discriminatory access to online communications 
                               platforms.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``21st Century Foundation for the 
Right to Express and Engage in Speech Act'' or the ``21st Century FREE 
Speech Act''.

SEC. 2. REASONABLE, NON-DISCRIMINATORY ACCESS TO ONLINE COMMUNICATIONS 
              PLATFORMS; BLOCKING AND SCREENING OF OFFENSIVE MATERIAL.

    (a) In General.--Part I of title II of the Communications Act of 
1934 (47 U.S.C. 201 et seq.) is amended--
            (1) by striking section 230; and
            (2) by adding at the end the following:

``SEC. 232. REASONABLE, NON-DISCRIMINATORY ACCESS TO ONLINE 
              COMMUNICATIONS PLATFORMS; BLOCKING AND SCREENING OF 
              OFFENSIVE MATERIAL.

    ``(a) Findings.--Congress finds the following:
            ``(1) The rapidly developing array of internet and other 
        interactive computer services available to individual Americans 
        represent an extraordinary advance in the availability of 
        educational and informational resources to our citizens.
            ``(2) These services often offer users a great degree of 
        control over the information that they receive, as well as the 
        potential for even greater control in the future as technology 
        continues to develop.
            ``(3) The internet and other interactive computer services 
        offer a forum for a true diversity of political discourse and 
        viewpoints, unique opportunities for cultural development, and 
        myriad avenues for intellectual activity, and regulation of the 
        internet must be tailored to supporting those activities.
            ``(4) The internet and other interactive computer services 
        have flourished, to the benefit of all Americans, with a 
        minimum of government regulation, and regulation should be 
        limited to what is necessary to preserve the societal benefits 
        provided by the internet.
            ``(5) Increasingly Americans rely on internet platforms and 
        websites for a variety of political, educational, cultural, and 
        entertainment services and for communication with one another.
    ``(b) Policy.--It is the policy of the United States--
            ``(1) to promote the continued development of the internet 
        and other interactive computer services and other interactive 
        media;
            ``(2) to preserve a vibrant and competitive free market for 
        the internet and other interactive computer services;
            ``(3) to encourage the development of technologies which 
        maximize user control over what information is received by 
        individuals, families, and schools who use the internet and 
        other interactive computer services, rather than control and 
        censorship driven by interactive computer services;
            ``(4) to facilitate the development and utilization of 
        blocking and filtering technologies that empower parents to 
        restrict their children's access to objectionable or 
        inappropriate online material;
            ``(5)(A) to ensure that the internet serves as an open 
        forum for--
                    ``(i) a true diversity of discourse and viewpoints, 
                including political discourse and viewpoints;
                    ``(ii) unique opportunities for cultural 
                development; and
                    ``(iii) myriad avenues for intellectual activity; 
                and
            ``(B) given that the internet is the dominant platform for 
        communication and public debate today, to ensure that major 
        internet communications platforms, which function as common 
        carriers in terms of their size, usage, and necessity, are 
        available to all users on reasonable and non-discriminatory 
        terms free from public or private censorship of religious and 
        political speech;
            ``(6) to promote consumer protection and transparency 
        regarding information and content management practices by major 
        internet platforms to--
                    ``(A) ensure that consumers understand--
                            ``(i) the products they are using; and
                            ``(ii) what information is being presented 
                        to them and why; and
                    ``(B) prevent deceptive or undetectable actions 
                that filter the information presented to consumers; and
            ``(7) to ensure vigorous enforcement of Federal criminal 
        laws to deter and punish trafficking in online obscenity, 
        stalking, and harassment.
    ``(c) Reasonable and Nondiscriminatory Access to Common Carrier 
Technology Companies.--
            ``(1) In general.--A common carrier technology company, 
        with respect to the interactive computer service provided by 
        the company--
                    ``(A) shall furnish the interactive computer 
                service to all persons upon reasonable request;
                    ``(B) may not unjustly or unreasonably discriminate 
                in charges, practices, classifications, regulations, 
                facilities, treatment, or services for or in connection 
                with the furnishing of the interactive computer 
                service, directly or indirectly, by any means or 
                device;
                    ``(C) may not make or give any undue or 
                unreasonable preference or advantage to any particular 
                person, class of persons, political or religious group 
                or affiliation, or locality; and
                    ``(D) may not subject any particular person, class 
                of persons, political or religious group or 
                affiliation, or locality to any undue or unreasonable 
                prejudice or disadvantage.
            ``(2) Applicability to broadband.--Paragraph (1) shall not 
        apply with respect to the provision of broadband internet 
        access service.
    ``(d) Consumer Protection and Transparency Regarding Common Carrier 
Technology Companies.--
            ``(1) In general.--A common carrier technology company 
        shall disclose, through a publicly available, easily accessible 
        website, accurate material regarding the content management, 
        moderation, promotion, account termination and suspension, and 
        curation mechanisms and practices of the company sufficient to 
        enable--
                    ``(A) consumers to make informed choices regarding 
                use of the interactive computer service provided by the 
                company; and
                    ``(B) persons to develop, market, and maintain 
                consumer-driven content management mechanisms with 
                respect to the interactive computer service provided by 
                the company.
            ``(2) Best practices.--The Commission, after soliciting 
        comments from the public, shall publish best practices for 
        common carrier technology companies to disclose content 
        management, moderation, promotion, account termination and 
        suspension, and curation mechanisms and practices in accordance 
        with paragraph (1).
            ``(3) Applicability to broadband.--Paragraph (1) shall not 
        apply with respect to the provision of broadband internet 
        access service.
    ``(e) Protection for `Good Samaritan' Blocking and Screening of 
Offensive Material.--
            ``(1) Treatment of publisher or speaker.--
                    ``(A) In general.--No provider or user of an 
                interactive computer service shall be treated as the 
                publisher or speaker of any material provided by 
                another information content provider.
                    ``(B) Exception.--Subparagraph (A) shall not apply 
                to any affirmative act by a provider or user of an 
                interactive computer service with respect to material 
                posted on the interactive computer service, whether the 
                act is carried out manually or through use of an 
                algorithm or other automated or semi-automated process, 
                including--
                            ``(i) providing its own material;
                            ``(ii) commenting or editorializing on, 
                        promoting, recommending, or increasing or 
                        decreasing the dissemination or visibility to 
                        users of its own material or material provided 
                        by another information content provider;
                            ``(iii) restricting access to or 
                        availability of material provided by another 
                        information content provider; or
                            ``(iv) barring or limiting any information 
                        content provider from using the interactive 
                        computer service.
            ``(2) Civil liability.--
                    ``(A) In general.--No provider or user of an 
                interactive computer service shall be held liable, 
                under subsection (c) or otherwise, on account of--
                            ``(i) any action voluntarily taken in good 
                        faith to restrict access to or availability of 
                        material that the provider or user considers to 
                        be obscene, lewd, lascivious, filthy, 
                        excessively violent, harassing, promoting self-
                        harm, or unlawful, whether or not such material 
                        is constitutionally protected; or
                            ``(ii) any action taken to enable or make 
                        available to information content providers or 
                        others the technical means to restrict access 
                        to material described in clause (i).
                    ``(B) Definitions.--For purposes of subparagraph 
                (A)--
                            ``(i) the term `excessively violent', with 
                        respect to material, means material that--
                                    ``(I) is likely to be deemed 
                                violent and for mature audiences 
                                according to the V-chip regulations and 
                                TV Parental Guidelines of the 
                                Commission promulgated under sections 
                                303(x) and 330(c)(4); or
                                    ``(II) constitutes or intends to 
                                advocate domestic terrorism or 
                                international terrorism, as defined in 
                                section 2331 of title 18, United States 
                                Code;
                            ``(ii) the term `harassing' means material 
                        that--
                                    ``(I) is--
                                            ``(aa) provided by an 
                                        information content provider 
                                        with the intent to abuse, 
                                        threaten, or harass any 
                                        specific person; and
                                            ``(bb) lacking in any 
                                        serious literary, artistic, 
                                        political, or scientific value;
                                    ``(II) violates the CAN-SPAM Act of 
                                2003 (15 U.S.C. 7701 et seq.); or
                                    ``(III) is malicious computer code 
                                intended (whether or not by the 
                                immediate disseminator) to damage or 
                                interfere with the operation of a 
                                computer;
                            ``(iii) the term `in good faith', with 
                        respect to restricting access to or 
                        availability of specific material, means the 
                        provider or user--
                                    ``(I) restricts access to or 
                                availability of material consistent 
                                with publicly available online terms of 
                                service or use that--
                                            ``(aa) state plainly and 
                                        with particularity the criteria 
                                        that the provider or user of 
                                        the interactive computer 
                                        service employs in its content 
                                        moderation practices, including 
                                        by any partially or fully 
                                        automated processes; and
                                            ``(bb) are in effect on the 
                                        date on which the material is 
                                        first posted;
                                    ``(II) has an objectively 
                                reasonable belief that the material 
                                falls within one of the categories 
                                listed in subparagraph (A)(i);
                                    ``(III)(aa) does not restrict 
                                access to or availability of material 
                                on deceptive or pretextual grounds; and
                                    ``(bb) does not apply its terms of 
                                service or use to restrict access to or 
                                availability of material that is 
                                similarly situated to material that the 
                                provider or user of the interactive 
                                computer service intentionally declines 
                                to restrict; and
                                    ``(IV) supplies the information 
                                content provider of the material with 
                                timely notice describing with 
                                particularity the reasonable factual 
                                basis for the restriction of access and 
                                a meaningful opportunity to respond, 
                                unless the provider or user of the 
                                interactive computer service has an 
                                objectively reasonable belief that--
                                            ``(aa) the material is 
                                        related to terrorism or 
                                        criminal activity; or
                                            ``(bb) such notice would 
                                        risk imminent physical harm to 
                                        others; and
                            ``(iv) the terms `obscene', `lewd', 
                        `lascivious', and `filthy', with respect to 
                        material, mean material that--
                                    ``(I) taken as a whole--
                                            ``(aa) appeals to the 
                                        prurient interest in sex or 
                                        portrays sexual conduct in a 
                                        patently offensive way; and
                                            ``(bb) does not have 
                                        serious literary, artistic, 
                                        political, or scientific value;
                                    ``(II) depicts or describes sexual 
                                or excretory organs or activities in 
                                terms patently offensive to the average 
                                person, applying contemporary community 
                                standards; or
                                    ``(III) signifies the form of 
                                immorality which has relation to sexual 
                                impurity, taking into account the 
                                standards at common law in prosecutions 
                                for obscene libel.
                    ``(C) Best practices.--The Commission, after 
                soliciting comments from the public, shall publish best 
                practices for making publicly available online terms of 
                service or use that state plainly and with 
                particularity the criteria that the provider or user of 
                an interactive computer service employs in its content 
                moderation practices, including by any partially or 
                fully automated processes, in accordance with 
                subparagraph (B)(iii)(I).
    ``(f) Violations.--
            ``(1) Private right of action.--
                    ``(A) In general.--A person aggrieved by a 
                violation of subsection (c) or (d) may bring a civil 
                action against the provider or user of an interactive 
                computer service that committed the violation for any 
                relief permitted under subparagraph (B) of this 
                paragraph.
                    ``(B) Relief.--
                            ``(i) In general.--The plaintiff may seek 
                        the following relief in a civil action brought 
                        under subparagraph (A):
                                    ``(I) An injunction.
                                    ``(II) An award that is the greater 
                                of--
                                            ``(aa) actual damages; or
                                            ``(bb) damages in the 
                                        amount of $500 for each 
                                        violation.
                            ``(ii) Willful or knowing violations.--In a 
                        civil action brought under subparagraph (A), if 
                        the court finds that the defendant willfully or 
                        knowingly violated subsection (c) or (d), the 
                        court may, in its discretion, increase the 
                        amount of the award to not more than 3 times 
                        the amount available under clause (i)(II) of 
                        this subparagraph.
            ``(2) Actions by states.--
                    ``(A) Authority of states.--
                            ``(i) In general.--Whenever the attorney 
                        general of a State, or an official or agency 
                        designated by a State, has reason to believe 
                        that any person has engaged or is engaging in a 
                        pattern or practice of violating subsection (c) 
                        or (d) that has threatened or adversely 
                        affected or is threatening or adversely 
                        affecting an interest of the residents of that 
                        State, the State may bring a civil action 
                        against the person on behalf of the residents 
                        of the State for any relief permitted under 
                        clause (ii) of this subparagraph.
                            ``(ii) Relief.--
                                    ``(I) In general.--The plaintiff 
                                may seek the following relief in a 
                                civil action brought under clause (i):
                                            ``(aa) An injunction.
                                            ``(bb) An award that is the 
                                        greater of--

                                                    ``(AA) actual 
                                                damages; or

                                                    ``(BB) damages in 
                                                the amount of $500 for 
                                                each violation.

                                    ``(II) Willful or knowing 
                                violations.--In a civil action brought 
                                under clause (i), if the court finds 
                                that the defendant willfully or 
                                knowingly violated subsection (c) or 
                                (d), the court may, in its discretion, 
                                increase the amount of the award to not 
                                more than 3 times the amount available 
                                under subclause (I)(bb) of this clause.
                    ``(B) Investigatory powers.--For purposes of 
                bringing a civil action under this paragraph, nothing 
                in this section shall prevent the attorney general of a 
                State, or an official or agency designated by a State, 
                from exercising the powers conferred on the attorney 
                general or the official by the laws of the State to--
                            ``(i) conduct investigations;
                            ``(ii) administer oaths or affirmations; or
                            ``(iii) compel the attendance of witnesses 
                        or the production of documentary and other 
                        evidence.
                    ``(C) Effect on state court proceedings.--Nothing 
                in this paragraph shall be construed to prohibit an 
                authorized State official from proceeding in State 
                court on the basis of an alleged violation of any 
                general civil or criminal statute of the State.
                    ``(D) Attorney general defined.--For purposes of 
                this paragraph, the term `attorney general' means the 
                chief legal officer of a State.
            ``(3) Venue; service of process.--
                    ``(A) Venue.--A civil action brought under this 
                subsection may be brought in the location where--
                            ``(i) the defendant--
                                    ``(I) is found;
                                    ``(II) is an inhabitant; or
                                    ``(III) transacts business; or
                            ``(ii) the violation occurred or is 
                        occurring.
                    ``(B) Service of process.--Process in a civil 
                action brought under this subsection may be served 
                where the defendant--
                            ``(i) is an inhabitant; or
                            ``(ii) may be found.
    ``(g) Obligations of Interactive Computer Service.--A provider of 
an interactive computer service shall, at the time of entering an 
agreement with a customer for the provision of interactive computer 
service and in a manner deemed appropriate by the provider, notify the 
customer that parental control protections (such as computer hardware, 
software, or filtering services) are commercially available that may 
assist the customer in limiting access to material that is harmful to 
minors. The notice shall identify, or provide the customer with access 
to material identifying, current providers of such protections.
    ``(h) Effect on Other Laws.--
            ``(1) No effect on criminal law.--Nothing in this section 
        shall be construed to impair the enforcement of section 223 or 
        231 of this Act, chapter 71 (relating to obscenity) or 110 
        (relating to sexual exploitation of children) of title 18, 
        United States Code, or any other Federal criminal statute.
            ``(2) No effect on intellectual property law.--Nothing in 
        this section shall be construed to limit or expand any law 
        pertaining to intellectual property.
            ``(3) State law.--Nothing in this section shall be 
        construed to prevent any State from enforcing any State law 
        that is consistent with this section. No cause of action may be 
        brought and no liability may be imposed under any State or 
        local law that is inconsistent with this section.
            ``(4) No effect on communications privacy law.--Nothing in 
        this section shall be construed to limit the application of the 
        Electronic Communications Privacy Act of 1986 or any of the 
        amendments made by such Act, or any similar State law.
            ``(5) No effect on sex trafficking law.--Nothing in this 
        section (other than subsection (e)(2)(A)(i)) shall be construed 
        to impair or limit--
                    ``(A) any claim in a civil action brought under 
                section 1595 of title 18, United States Code, if the 
                conduct underlying the claim constitutes a violation of 
                section 1591 of that title;
                    ``(B) any charge in a criminal prosecution brought 
                under State law if the conduct underlying the charge 
                would constitute a violation of section 1591 of title 
                18, United States Code; or
                    ``(C) any charge in a criminal prosecution brought 
                under State law if the conduct underlying the charge 
                would constitute a violation of section 2421A of title 
                18, United States Code, and promotion or facilitation 
                of prostitution is illegal in the jurisdiction where 
                the defendant's promotion or facilitation of 
                prostitution was targeted.
    ``(i) Definitions.--As used in this section:
            ``(1) Access software provider.--The term `access software 
        provider' means a provider of software (including client or 
        server software), or enabling tools that do any one or more of 
        the following:
                    ``(A) Filter, screen, allow, or disallow material.
                    ``(B) Pick, choose, analyze, or digest material.
                    ``(C) Transmit, receive, display, forward, cache, 
                search, subset, organize, reorganize, or translate 
                material.
            ``(2) Broadband internet access service.--The term 
        `broadband internet access service' has the meaning given the 
        term in section 8.1(b) of title 47, Code of Federal 
        Regulations, or any successor regulation.
            ``(3) Common carrier technology company.--The term `common 
        carrier technology company' means a provider of an interactive 
        computer service that--
                    ``(A) offers its services to the public; and
                    ``(B) has more than 100,000,000 worldwide active 
                monthly users.
            ``(4) Information content provider.--
                    ``(A) In general.--The term `information content 
                provider' means any person or entity that is 
                responsible, in whole or in part, for the creation or 
                development of material provided through the internet 
                or any other interactive computer service.
                    ``(B) Responsibility defined.--For purposes of 
                subparagraph (A), the term `responsible, in whole or in 
                part, for the creation or development of material' 
                includes affirmatively and substantively contributing 
                to, modifying, altering, presenting with a reasonably 
                discernible viewpoint, commenting upon, or 
                editorializing about material provided by another 
                person or entity.
            ``(5) Interactive computer service.--The term `interactive 
        computer service' means any information service, system, or 
        access software provider that provides or enables computer 
        access by multiple users to a computer server, including 
        specifically a service or system that provides access to the 
        internet and such systems operated or services offered by 
        libraries or educational institutions.
            ``(6) Internet.--The term `internet' means the 
        international computer network of both Federal and non-Federal 
        interoperable packet switched data networks.
            ``(7) Material.--The term `material' means any data, 
        regardless of physical form or characteristic, including--
                    ``(A) written or printed matter, information, 
                automated information systems storage media, maps, 
                charts, paintings, drawings, films, photographs, 
                images, videos, engravings, sketches, working notes, or 
                papers, or reproductions of any such things by any 
                means or process; and
                    ``(B) sound, voice, magnetic, or electronic 
                recordings.''.
    (b) Conforming Amendments.--
            (1) Communications act of 1934.--The Communications Act of 
        1934 (47 U.S.C. 151 et seq.) is amended--
                    (A) in section 223(h)(2) (47 U.S.C. 223(h)(2)), by 
                striking ``section 230(f)(2)'' and inserting ``section 
                232''; and
                    (B) in section 231(b)(4) (47 U.S.C. 231(b)(4)), by 
                striking ``section 230'' and inserting ``section 232''.
            (2) Trademark act of 1946.--Section 45 of the Act entitled 
        ``An Act to provide for the registration and protection of 
        trademarks used in commerce, to carry out the provisions of 
        certain international conventions, and for other purposes'', 
        approved July 5, 1946 (commonly known as the ``Trademark Act of 
        1946'') (15 U.S.C. 1127) is amended by striking the definition 
        relating to the term ``Internet'' and inserting the following:
    ``The term `internet' has the meaning given that term in section 
232 of the Communications Act of 1934.''.
            (3) Title 17, united states code.--Section 1401(g) of title 
        17, United States Code, is amended--
                    (A) by striking ``section 230 of the Communications 
                Act of 1934 (47 U.S.C. 230)'' and inserting ``section 
                232 of the Communications Act of 1934''; and
                    (B) by striking ``subsection (e)(2) of such section 
                230'' and inserting ``subsection (h)(2) of such section 
                232''.
            (4) Title 18, united states code.--Part I of title 18, 
        United States Code, is amended--
                    (A) in section 2257(h)(2)(B)(v), by striking 
                ``section 230(c) of the Communications Act of 1934 (47 
                U.S.C. 230(c))'' and inserting ``section 232(e) of the 
                Communications Act of 1934''; and
                    (B) in section 2421A--
                            (i) in subsection (a), by striking ``(as 
                        such term is defined in defined in section 
                        230(f) the Communications Act of 1934 (47 
                        U.S.C. 230(f)))'' and inserting ``(as that term 
                        is defined in section 232 of the Communications 
                        Act of 1934)''; and
                            (ii) in subsection (b), by striking ``(as 
                        such term is defined in defined in section 
                        230(f) the Communications Act of 1934 (47 
                        U.S.C. 230(f)))'' and inserting ``(as that term 
                        is defined in section 232 of the Communications 
                        Act of 1934)''.
            (5) Controlled substances act.--Section 
        401(h)(3)(A)(iii)(II) of the Controlled Substances Act (21 
        U.S.C. 841(h)(3)(A)(iii)(II)) is amended by striking ``section 
        230(c) of the Communications Act of 1934'' and inserting 
        ``section 232(e) of the Communications Act of 1934''.
            (6) Webb-kenyon act.--Section 3(b)(1) of the Act entitled 
        ``An Act divesting intoxicating liquors of their interstate 
        character in certain cases'', approved March 1, 1913 (commonly 
        known as the ``Webb-Kenyon Act'') (27 U.S.C. 122b(b)(1)) is 
        amended by striking ``(as defined in section 230(f) of the 
        Communications Act of 1934 (47 U.S.C. 230(f))'' and inserting 
        ``(as defined in section 232 of the Communications Act of 
        1934)''.
            (7) Title 28, united states code.--Section 4102 of title 
        28, United States Code, is amended--
                    (A) in subsection (c)--
                            (i) by striking ``section 230 of the 
                        Communications Act of 1934 (47 U.S.C. 230)'' 
                        and inserting ``section 232 of the 
                        Communications Act of 1934''; and
                            (ii) by striking ``section 230 if'' and 
                        inserting ``that section if''; and
                    (B) in subsection (e)(2), by striking ``section 230 
                of the Communications Act of 1934 (47 U.S.C. 230)'' and 
                inserting ``section 232 of the Communications Act of 
                1934''.
            (8) Title 31, united states code.--Section 5362(6) of title 
        31, United States Code, is amended by striking ``section 230(f) 
        of the Communications Act of 1934 (47 U.S.C. 230(f))'' and 
        inserting ``section 232 of the Communications Act of 1934''.
            (9) National telecommunications and information 
        administration organization act.--Section 157(e)(1) of the 
        National Telecommunications and Information Administration 
        Organization Act (47 U.S.C. 941(e)(1)) is amended, in the 
        matter preceding subparagraph (A), by striking ``section 230(c) 
        of the Communications Act of 1934 (47 U.S.C. 230(c))'' and 
        inserting ``section 232(e) of the Communications Act of 1934''.
    (c) Applicability.--Subsections (c) and (d) of section 232 of the 
Communications Act of 1934, as added by subsection (a), shall apply to 
a common carrier technology company on and after the date that is 90 
days after the date of enactment of this Act.
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