II 117th CONGRESS 1st Session S. 1384 IN THE SENATE OF THE UNITED STATES April 27, 2021 Mr. Hagerty introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To repeal section 230 of the Communications Act of 1934 and ensure reasonable, non-discriminatory access to online communications platforms.

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 . 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: 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.