Limitation of section 230 immunity

(a)

In general

Section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)) is amended by adding at the end the following:

(3)

Exceptions relating to illegal, exploitive, or harmful content

(A)

In general

During a period described in subparagraph (D), paragraph (1) shall not apply to a provider or user of an interactive computer service that creates, develops, posts, materially contributes to, or induces another person to create, develop, post, or materially contribute to illegal online content.(B)

Certain contact between adult and minor

During a period described in subparagraph (D), paragraph (1) shall not apply to a provider of an interactive computer service that knowingly permits or facilitates an adult having contact through an interactive computer service of such provider with an individual that such adult knows or believes to be a minor, if such contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either such adult or such minor.(C)

Content that is indecent, obscene, or otherwise harmful to minors

During a period described in subparagraph (D), paragraph (1) shall not apply to a provider or user of an interactive computer service that permits or facilitates the distribution of content that—(i)is indecent, obscene, or otherwise harmful to minors; and(ii)is made readily accessible to minors by the failure of such provider or user to implement a system designed to effectively screen users who are minors from accessing such content, to the extent feasible using technology available at the time of such distribution.(D)

Period of loss of immunity

For purposes of subparagraph (A), (B), or (C), a period described in this subparagraph is—(i)any 1-year period beginning on the date on which the provider engages in conduct described in such subparagraph; or(ii)in the case of such conduct that continues for more than 1 day, any 1-year period beginning on the date on which the provider ceases such conduct.(E)

Rule of construction

This paragraph shall be broadly construed to advance the purposes of this section for the deployment of new technologies and policies to block or filter offensive content such as indecency, obscenity, pornography, or sexually explicit content so as to prevent any such content from being readily accessible to minors.(4)

Exception for stifling free expression

(A)

In general

Paragraphs (1) and (2)(A) shall not apply to a provider of an interactive computer service that is in the business or practice of communicating user-generated content during any period during which such provider—(i)is dominant in its market; and(ii)makes content moderation decisions pursuant to policies or practices that are not reasonably consistent with the First Amendment to the Constitution.(B)

Rule of construction

This paragraph shall be broadly construed to advance the purposes of this section in encouraging the growth of the internet as a forum for a true diversity of discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity, where lawful political, religious, cultural, social, scientific, and other online content can flourish without discrimination based on viewpoint.(5)

Private right of action

(A)

In general

If a provider of an interactive computer service that is dominant in its market bans, blocks, down-ranks, demonetizes in its advertising, or otherwise subjects to similar adverse treatment the content of any information content provider that uses an interactive computer service of such dominant provider by reason of the failure of such dominant provider to make content moderation decisions pursuant to policies or practices that are reasonably consistent with the First Amendment to the Constitution, such information content provider may bring a civil action in an appropriate State court or an appropriate district court of the United States against such dominant provider to obtain the relief described in subparagraph (B).(B)

Relief

(i)

In general

An information content provider that prevails in a civil action under subparagraph (A) may obtain the following relief:(I)The greater of—(aa)compensatory damages, including both personal and business economic loss; or(bb)liquidated damages in the amount of $500,000 for each incident of adverse treatment described in subparagraph (A).(II)Punitive damages, in the case of a reckless failure of the provider of the interactive computer service to make content moderation decisions pursuant to policies or practices that are reasonably consistent with the First Amendment to the Constitution.(ii)

Treble damages

In the case of a willful or knowing failure of the provider of the interactive computer service to make content moderation decisions pursuant to policies or practices that are reasonably consistent with the First Amendment to the Constitution, the information content provider may obtain, instead of the amount determined under clause (i)(I), three times such amount.(6)

Certification regarding market dominance and content moderation policies and practices

(A)

In general

Not later than 120 days after the date of the enactment of this paragraph, the Federal Trade Commission and the Attorney General shall promulgate regulations to establish a process under which a provider of an interactive computer service with net assets or annual net revenue exceeding $500,000,000 may apply for a review and certification by the Federal Trade Commission, acting with the concurrence of the Attorney General—(i)that such provider is not dominant in its market; or(ii)if such provider is determined to be dominant in its market under clause (i), that the policies and practices of such dominant provider relating to content moderation, as applied to information content providers using the interactive computer service or interactive computer services of such dominant provider, are reasonably consistent with the First Amendment to the Constitution.(B)

Effect of certification

A certification under subparagraph (A) may, in the discretion of the trial court, be admissible in any civil action or criminal prosecution in which it is asserted that paragraph (4) applies to the provider to which such certification relates, or in any civil action brought under paragraph (5) against such provider, but such certification shall not be determinative on the issues described in clauses (i) and (ii) of such subparagraph.

(b)

Definitions

Section 230(f) of the Communications Act of 1934 (47 U.S.C. 230(f)) is amended by adding at the end the following:

(5)

Dominant in its market

The term dominant in its market means, with respect to a provider of an interactive computer service, that such provider has gained substantial, sustained market power over any competitors. Actual monopoly control over a market is not required to satisfy the preceding sentence.(6)

Reasonably consistent with the First Amendment to the Constitution

The term reasonably consistent with the First Amendment to the Constitution means, with respect to the policies and practices of a provider of an interactive computer service relating to content moderation, that such provider conforms such policies and practices to established law under the First Amendment to the Constitution applicable to state actors, regardless of whether or not such provider is a state actor, to the extent feasible taking into consideration the developing capabilities and complexities of technology and the unique characteristics of online communication platforms.(7)

Minor

The term minor means an individual who is under 18 years of age.(8)

Harmful to minors

The term harmful to minors means, with respect to content, that such content contains a description or representation of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that—(A)predominantly appeals to the prurient, shameful, or morbid interest of minors;(B)is patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors; and(C)is utterly without redeeming social importance for minors.(9)

Adult

The term adult means an individual who is 18 years of age or older.

(c)

Effective date

The amendments made by this section shall apply with respect to conduct by a provider of an interactive computer service (as defined in section 230(f) of the Communications Act of 1934 (47 U.S.C. 230(f))) that occurs after the date of the enactment of this Act.