Title: DISCOURSE Act
Policy area: Science, Technology, Communications

Summary:
Disincentivizing Internet Service Censorship of Online Users and Restrictions on Speech and Expression Act or the DISCOURSE Act
This bill limits federal liability protections for a user or provider of an interactive computer service (e.g., a social media company) related to content provided by third parties. It also requires a provider that offers its service through a mass-market offering to the public to disclose information about its content moderation activities.
The bill removes liability protections (sometimes referred to as section 230 protection) for a provider with a dominant market share if the provider
Currently, a provider retains liability protections even when it restricts access to materials that it considers objectionable. Under this bill, a provider retains protections if restricted materials fall, based on an objectively reasonable belief, into a prescribed list of harmful or unlawful categories.
Additionally, the liability protections shall not apply to providers that (1) restrict access to content in a manner that burdens the exercise of religion, or (2) fail to comply with an existing requirement to notify customers of options for limiting a minor's access to harmful online content (e.g., parental controls).
The bill also changes legal procedures related to the liability protections, including by specifying that the protection serves as an affirmative defense.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2228 Introduced in Senate (IS)]

<DOC>






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.

    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 ``Disincentivizing Internet Service 
Censorship of Online Users and Restrictions on Speech and Expression 
Act'' or the ``DISCOURSE Act''.

SEC. 2. CONTENT MODERATION, CREATION AND DEVELOPMENT, AND DISTRIBUTION.

    (a) Treatment as Publisher or Speaker Contingent on Content 
Management Practices.--Section 230 of the Communications Act of 1934 
(47 U.S.C. 230) is amended--
            (1) in subsection (c)(1)--
                    (A) by striking ``No provider'' and inserting the 
                following:
                    ``(A) In general.--Subject to subparagraph (B), no 
                provider''; and
                    (B) by adding at the end the following:
                    ``(B) Notification of parental control 
                protections.--Subparagraph (A) shall not apply to a 
                provider of an interactive computer service with a 
                dominant market share that violates subsection (d).''; 
                and
            (2) in subsection (f)--
                    (A) in paragraph (3)--
                            (i) by striking ``The term'' and inserting 
                        the following:
                    ``(A) In general.--The term''; and
                            (ii) by adding at the end the following:
                    ``(B) Content moderation.--If an interactive 
                computer service provider with a dominant market 
                share--
                            ``(i) engages in a content moderation 
                        activity that reasonably appears to express, 
                        promote, or suppress a discernible viewpoint 
                        for a reason that is not protected from 
                        liability under subsection (c)(2), including 
                        reducing or eliminating the ability of an 
                        information content provider to earn revenue, 
                        with respect to any information, the 
                        interactive computer service provider shall be 
                        deemed to be an information content provider 
                        with respect to that information; or
                            ``(ii) engages in a pattern or practice of 
                        content moderation activity that reasonably 
                        appears to express, promote, or suppress a 
                        discernible viewpoint for a reason that is not 
                        protected from liability under subsection 
                        (c)(2), including reducing or eliminating the 
                        ability of an information content provider to 
                        earn revenue, the interactive computer service 
                        provider shall be deemed to be an information 
                        content provider with respect to all 
                        information that is provided through the 
                        interactive computer service.
                    ``(C) Use of targeted algorithmic amplification.--
                            ``(i) In general.--If an interactive 
                        computer service provider with a dominant 
                        market share--
                                    ``(I) amplifies information 
                                provided by an information content 
                                provider by using an algorithm or other 
                                automated computer process to target 
                                the information directly to users 
                                without the request of a sending or 
                                receiving user, the interactive 
                                computer service provider shall be 
                                deemed to be an information content 
                                provider with respect to that 
                                information; or
                                    ``(II) engages in a pattern or 
                                practice of amplifying information 
                                provided by an information content 
                                provider by using an algorithm or other 
                                automated computer process to target 
                                the information directly to users 
                                without the request of a sending or 
                                receiving user, the interactive 
                                computer service provider shall be 
                                deemed to be an information content 
                                provider with respect to all 
                                information that is provided through 
                                the interactive computer service.
                            ``(ii) Exceptions.--Clause (i) shall not 
                        apply to the use of an algorithm or other 
                        computer process to--
                                    ``(I) amplify or target directly to 
                                a user any information that is the 
                                result of a search function performed 
                                by the user; or
                                    ``(II) sort data chronologically or 
                                alphabetically.
                    ``(D) Information creation or development.--If an 
                interactive computer service provider with a dominant 
                market share--
                            ``(i) solicits, comments upon, funds, or 
                        affirmatively and substantively contributes to, 
                        modifies, or alters information provided by an 
                        information content provider, the interactive 
                        computer service provider shall be deemed to be 
                        an information content provider with respect to 
                        that information; or
                            ``(ii) engages in a pattern or practice of 
                        soliciting, commenting upon, funding, or 
                        affirmatively and substantively contributing 
                        to, modifying, or altering information provided 
                        by an information content provider, the 
                        interactive computer service provider shall be 
                        deemed to be an information content provider 
                        with respect to all information that is 
                        provided through the interactive computer 
                        service.''; and
                    (B) by adding at the end the following:
            ``(5) Content moderation activity.--The term `content 
        moderation activity' means editing, deleting, throttling, 
        limiting the reach of, reducing or eliminating the ability of 
        an information content provider to earn revenue from, or 
        commenting upon, information provided by an information content 
        provider, or terminating or limiting an account or usership, if 
        the activity is based on content-based criteria.
            ``(6) Pattern or practice.--The term `pattern or practice' 
        means any formal or informal policy or rule, whether created by 
        a human or generated by a computer, as applied or used by an 
        interactive computer service provider.''.
    (b) Clarifying Categories of Objectionable Material.--Section 
230(c)(2) of the Communications Act of 1934 (47 U.S.C. 230(c)(2)) is 
amended--
            (1) in subparagraph (A)--
                    (A) by striking ``considers to be'' and inserting 
                ``has an objectively reasonable belief is'';
                    (B) by inserting ``promoting terrorism or violent 
                extremism,'' after ``violent,''; and
                    (C) by striking ``or otherwise objectionable'' and 
                inserting ``promoting self-harm, or unlawful''; and
            (2) in subparagraph (B), by striking ``paragraph (1)'' and 
        inserting ``subparagraph (A)''.
    (c) Religious Liberty Exception to Civil Liability Protections.--
Section 230(c)(2) of the Communications Act of 1934 (47 U.S.C. 
230(c)(2)), as amended by subsection (b), is amended--
            (1) by redesignating subparagraphs (A) and (B) as clauses 
        (i) and (ii), respectively, and adjusting the margins 
        accordingly;
            (2) by striking ``No provider'' and inserting the 
        following:
                    ``(A) In general.--Except as provided in 
                subparagraph (B), no provider'';
            (3) in subparagraph (A)(ii), as so designated, by striking 
        ``subparagraph (A)'' and inserting ``clause (i)''; and
            (4) by adding at the end the following:
                    ``(B) Religious liberty exception.--Subparagraph 
                (A) shall not apply to any action taken with respect to 
                religious material in a manner that burdens the 
                exercise of religion, as defined in section 5 of the 
                Religious Freedom Restoration Act of 1993 (42 U.S.C. 
                2000bb -2).''.
    (d) Disclosure of Content Management Mechanisms and Practices.--
Section 230(d) of the Communications Act of 1934 (47 U.S.C. 230(d)) is 
amended--
            (1) by striking ``A provider'' and inserting the following:
            ``(1) Parental control protections.--A provider''; and
            (2) by adding at the end the following:
            ``(2) Disclosure of content management mechanisms and 
        practices.--
                    ``(A) In general.--A provider of an interactive 
                computer service that provides the service through a 
                mass-market offering to the public shall publicly 
                disclose accurate information regarding the content 
                moderation activity of the service, including editing, 
                deleting, throttling, limiting the reach of, reducing 
                or eliminating the ability of an information content 
                provider to earn revenue from, or commenting upon, 
                information provided by an information content 
                provider, terminating or limiting an account or 
                usership, and any other content moderation, promotion, 
                and other curation practices, sufficient to enable--
                            ``(i) consumers to make informed choices 
                        regarding the purchase and use of the service; 
                        and
                            ``(ii) entrepreneurs and other small 
                        businesses to develop, market, and maintain 
                        offerings by means of the service.
                    ``(B) Manner of disclosure.--A provider of an 
                interactive computer service shall make the disclosure 
                under subparagraph (A)--
                            ``(i) through a publicly available, easily 
                        accessible website; or
                            ``(ii) by submitting the information 
                        described in that subparagraph to the 
                        Commission, which shall make the information 
                        available to the public through the website of 
                        the Commission.''.
    (e) Clarifying That Immunity Is an Affirmative Defense.--Section 
230(c)(1) of the Communications Act of 1934 (47 U.S.C. 230(c)(1)), as 
amended by subsection (a)(1), is amended--
            (1) in subparagraph (A), as so designated, by striking 
        ``subparagraph (B)'' and inserting ``subparagraphs (B) and 
        (C)''; and
            (2) by adding at the end the following:
                    ``(C) Affirmative defense.--In a criminal or civil 
                action against a provider or user of an interactive 
                computer service that treats the provider or user as 
                the publisher or speaker of any information, the 
                provider or user shall bear the burden of proving that 
                the provider or user is not an information content 
                provider with respect to that information for purposes 
                of subparagraph (A).''.
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