[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;

[[Page S8285]]

       ``(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,

[[Page S8286]]

     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.
                                 ______