DISCOURSE Act

Summary

Amends Section 230 of the Communications Act of 1934 to limit liability protections for dominant interactive computer service providers based on their content management practices.

Deems providers as content creators if they engage in content moderation or use targeted algorithmic amplification that expresses, promotes, or suppresses a discernible viewpoint.

Excludes liability protections for actions against religious material that burden the exercise of religion.

Mandates public disclosure of content management mechanisms and practices by providers to enable informed consumer choices and entrepreneurial activities.

Reclassifies immunity under Section 230 as an affirmative defense, requiring providers or users to prove they are not information content providers in legal actions.

Cites the Act as the "DISCOURSE Act".

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”.

Amends Section 230, making liability exemptions conditional on content management practices; Deeming interactive computer service provider with a dominant market share to be an information content provider if not under those expectations.

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:

Exempts providers with dominant market share violating subsection (d) from parental control protections notification.

“(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:

Deems a dominant service provider an information content provider if it moderates content expressing a discernible viewpoint.

“(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.

Deems an algorithm-using dominant service provider an information content provider for targeted amplified information.

“(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 the 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 the 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.

Creates exceptions for search results and chronological or alphabetical data sorting.

“(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.

"Deems an interactive service provider an information provider if it substantively alters or solicits content."

“(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

Defines 'content moderation activity' as actions based on content-based criteria. Defines 'pattern or practice' as formal or informal policies.

(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.”.

Amends Section 230 to require "objectively reasonable belief" and includes exceptions for terrorism, violent extremism, and self-harm.

(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:

Exempts actions that burden religious exercise from subparagraph (A).

“(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:

Requires providers to disclose content moderation activities for consumer and small business informed choices.

“(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.

Requires disclosure via accessible website or submission to the Commission for public website posting.

“(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.”.

Amends Section 230(c)(1) to clarify that immunity is an affirmative defense.

(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:

Requires the provider or user to prove they are not an information content provider.

“(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).”.