[Congressional Record Volume 167, Number 199 (Tuesday, November 16, 2021)]
[Senate]
[Pages S8284-S8286]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4702. Mr. HAGERTY submitted an amendment intended to be proposed
to amendment SA 3867 submitted by Mr. Reed and intended to be proposed
to the bill H.R. 4350, to authorize appropriations for fiscal year 2022
for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ____. 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;
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``(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,
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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.
______