[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 797 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 797
To require transparency, accountability, and protections for consumers
online.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 17 (legislative day, March 16), 2021
Mr. Schatz (for himself and Mr. Thune) introduced the following bill;
which was read twice and referred to the Committee on Commerce,
Science, and Transportation
_______________________________________________________________________
A BILL
To require transparency, accountability, and protections for consumers
online.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Platform Accountability and Consumer
Transparency Act'' or the ``PACT Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Commission.--Except as otherwise provided, the term
``Commission'' means the Federal Trade Commission.
(2) Demonetize.--The term ``demonetize'', with respect to
content on an interactive computer service, means to take
action to prohibit the information content provider that
generated or disseminated the content from receiving direct
financial compensation from the interactive computer service
provider based on the content.
(3) Deprioritize.--The term ``deprioritize'', with respect
to content on an interactive computer service, means to take
affirmative, content-specific action to reduce the priority
level of the content.
(4) Illegal activity.--The term ``illegal activity'' means
activity conducted by an information content provider that has
been determined by a trial or appellate Federal or State court
to violate Federal criminal or civil law.
(5) Illegal content.--The term ``illegal content'' means
information provided by an information content provider that
has been determined by a trial or appellate Federal or State
court to violate--
(A) Federal criminal or civil law; or
(B) State defamation law.
(6) Individual provider.--The term ``individual provider''
means a provider of an interactive computer service that,
during the most recent 12-month period--
(A) received fewer than 100,000 unique monthly
visitors; and
(B) accrued revenue of less than $1,000,000.
(7) Information content provider.--The term ``information
content provider'' has the meaning given the term in section
230 of the Communications Act of 1934 (47 U.S.C. 230).
(8) Interactive computer service.--The term ``interactive
computer service'' has the meaning given the term in section
230 of the Communications Act of 1934 (47 U.S.C. 230).
(9) Potentially policy-violating content.--The term
``potentially policy-violating content'' means content that may
violate the acceptable use policy of the provider of an
interactive computer service.
(10) Small business provider.--The term ``small business
provider'' means a provider of an interactive computer service
that is not an individual provider and, during the most recent
12-month period--
(A) received fewer than 1,000,000 unique monthly
visitors; and
(B) accrued revenue of less than $50,000,000.
SEC. 3. FINDINGS.
Congress finds the following:
(1) Technological advancements involving the internet and
interactive computer service providers have led to innovations
that offer substantial benefit to the people and the economy of
the United States.
(2) People in the United States increasingly rely on
interactive computer services to communicate, gather
information, and conduct transactions that are central to our
economic, political, social, and cultural life.
(3) The content moderation decisions made by providers of
interactive computer services shape the online information
ecosystem available to people in the United States and impact
free expression.
(4) There is a compelling government interest in having
providers of interactive computer services provide information
to the public about their content moderation policies and
practices because of the impact those policies may have on the
speech interests of their consumers.
(5) The people of the United States benefit from
transparent information about the decisions interactive
computer service providers make regarding their content
moderation practices, including removing, maintaining,
blocking, amplifying, prioritizing, or deprioritizing
information provided by other consumers.
(6) The Federal Government should hold interactive computer
service providers accountable when they fail to respond to
consumers' concerns about their content moderation decisions.
(7) Federal and State court decisions and Federal statutes
and regulations that apply to offline commerce do not always
govern online commerce and communications.
(8) The rights of consumers should extend to online
commerce and communications to provide a level playing field
for all consumers and companies, and to prevent wrongdoing and
victimization of people in the United States.
SEC. 4. POLICY.
It is the policy of the United States--
(1) to preserve the internet and other interactive computer
services as forums for diversity of political discourse,
opportunities for cultural development, and places for
intellectual and commercial activity;
(2) to ensure consumers have accessible and clear
information about the acceptable use policies of interactive
computer service providers so that consumers are informed about
the content moderation policies and practices of those
providers when they participate in, or engage with, those
services;
(3) to create accountability and transparency measures to
diminish the likelihood that interactive computer service
providers are engaging in unfair or deceptive practices;
(4) to encourage the development and use of technologies
that minimize illegal activities and content and potentially
policy-violating content;
(5) to ensure that the consumer rights of users of
interactive computer services are maintained and extended to
activities that the users may participate in online; and
(6) to hold interactive computer service providers
accountable, and exempt them from immunity protections under
section 230 of the Communications Act of 1934 (commonly known
as ``section 230 of the Communications Decency Act of 1996'')
(47 U.S.C. 230), when they help develop illegal content or
contribute to illegal content or conduct online.
SEC. 5. TRANSPARENCY AND PROCESS REQUIREMENTS.
(a) Acceptable Use Policy.--
(1) Publication of acceptable use policy.--A provider of an
interactive computer service shall publish an acceptable use
policy in accordance with paragraph (2) in a location that is
easily accessible to the user.
(2) Contents of policy.--The acceptable use policy of a
provider of an interactive computer service shall--
(A) reasonably inform users about the types of
content that are allowed on the interactive computer
service;
(B) explain the steps the provider takes to ensure
content complies with the acceptable use policy;
(C) explain the means by which users can notify the
provider of potentially policy-violating content,
illegal content, or illegal activity, which shall
include--
(i) subject to subsection (e), making
available a live company representative through
a toll-free telephone number during regular
business hours for not fewer than 8 hours per
day and 5 days per week to assist users with
the process of making a complaint;
(ii) an email address or relevant intake
mechanism to handle user complaints; and
(iii) subject to subsection (e), a
complaint system described in subsection (b);
and
(D) include publication of a biannual transparency
report outlining actions taken to enforce the policy,
as described in subsection (d).
(b) Complaint System.--Subject to subsection (e), a provider of an
interactive computer service shall provide a system that is easily
accessible to a user through which the user may submit in good faith,
and track, a complaint regarding any content or activity on the
interactive computer service, including a complaint regarding--
(1) potentially policy-violating content, illegal content,
or illegal activity; or
(2) a decision of the interactive computer service provider
to remove content posted by the information content provider.
(c) Processing of Complaints.--
(1) Complaints regarding illegal content, illegal activity,
or potentially policy-violating content.--
(A) Illegal content or illegal activity.--
(i) In general.--Subject to subsection (e),
and except as provided in clause (ii), if a
provider of an interactive computer service
receives notice of illegal content or illegal
activity on the interactive computer service
that substantially complies with the
requirements under paragraph (3)(B)(ii) of
section 230(c) of the Communications Act of
1934 (47 U.S.C. 230(c)), as added by section
6(a), the provider shall remove the content or
stop the activity not later than 4 days after
receiving the notice, subject to reasonable
exceptions, including concerns about the
legitimacy of the notice.
(ii) Timeline for notice emanating from
default judgments and stipulated agreements.--
If a notice of illegal content or illegal
activity described in clause (i) emanates from
a default judgment or stipulated agreement,
that clause shall be applied by substituting
``10 days'' for ``4 days''.
(B) Potentially policy-violating content.--Subject
to subsection (e), if a provider of an interactive
computer service receives a complaint made in good
faith through the complaint system of the provider
established under subsection (b) regarding potentially
policy-violating content on the interactive computer
service, the provider shall, not later than 14 days
after receiving the complaint--
(i) review the content;
(ii) determine whether the content adheres
to the acceptable use policy of the provider;
and
(iii) initiate appropriate steps based on
the determination made under clause (ii),
subject to reasonable extensions in cases
requiring extraordinary investigation.
(2) Process after removal of content.--
(A) Removal based on user complaint.--
(i) In general.--Subject to clause (ii), if
a provider of an interactive computer service
removes potentially policy-violating content
based on a user complaint, the provider of the
interactive computer service shall,
concurrently with the removal--
(I) notify the information content
provider and the complainant of the
removal and explain why the content was
removed;
(II) allow the information content
provider to appeal the decision; and
(III) notify the information
content provider and the complainant
of--
(aa) the determination
regarding the appeal under
subclause (II); and
(bb) in the case of a
reversal of the decision to
remove the content in question,
the reason for the reversal.
(ii) Exceptions.--A provider of an
interactive computer service shall not be
required to provide an information content
provider with notice or an opportunity to
appeal under clause (i) if--
(I) the provider of the interactive
computer service is unable to contact
the information content provider after
taking reasonable steps to do so; or
(II)(aa) the provider of the
interactive computer service reasonably
believes that such notice would risk
imminent harm to any person or impede
law enforcement activities; or
(bb) a law enforcement agency,
based on a reasonable belief that such
notice would interfere with an ongoing
investigation, requests that the
provider of the interactive computer
service not provide such notice.
(B) Removal based on moderation decisions of
interactive computer service provider.--If a provider
of an interactive computer service receives notice,
through a complaint from the information content
provider, that the provider of the interactive computer
service removed content of the information content
provider that the information content provider believes
does not violate the acceptable use policy of the
provider of the interactive computer service, the
provider of the interactive computer service shall, not
later than 14 days after receiving notice--
(i) review the content;
(ii) determine whether the content adheres
to the acceptable use policy of the provider of
the interactive computer service;
(iii) take appropriate steps based on the
determination made under clause (ii); and
(iv) notify the information content
provider regarding the determination made under
clause (ii) and steps taken under clause (iii).
(d) Biannual Transparency Report.--
(1) In general.--Subject to subsection (e), as part of the
acceptable use policy required under subsection (a), a provider
of an interactive computer service shall publish a transparency
report every 6 months in accordance with this subsection.
(2) Requirements.--A provider of an interactive computer
service shall include in the transparency report required under
paragraph (1)--
(A) the total number of unique monthly visitors to
the interactive computer service during the preceding
6-month and 12-month periods;
(B) the number of instances during the preceding 6-
month period in which illegal content, illegal
activity, or potentially policy-violating content was
flagged--
(i) due to a complaint by a user of the
interactive computer service;
(ii) internally, by--
(I) an employee or contractor of
the provider; or
(II) an internal automated
detection tool, not including content
or activity identified as--
(aa) spam; or
(bb) fraudulent activity;
or
(iii) by another type of entity, such as a
government agency, third-party researcher, or
other provider of an interactive computer
service;
(C) the number of instances during the preceding 6-
month period in which the interactive computer service
provider took action with respect to illegal content,
illegal activity, or known potentially policy-violating
content due to its nature as illegal content, illegal
activity, or known potentially policy-violating
content, respectively, and the type of action taken,
including the number of instances of content removal,
content demonetization, content deprioritization,
appending content with an assessment, account
suspension, account removal, or any other action taken
in accordance with the acceptable use policy of the
provider, categorized by--
(i) the category of rule violated, with
respect to the acceptable use policy;
(ii) the source of the flag, including
government, user, internal automated detection
tool, coordination with other interactive
computer service providers, or personnel
employed or contracted for by the provider;
(iii) the country of the information
content provider; and
(iv) whether the action was in response to
a coordinated campaign, as determined by the
interactive computer service provider;
(D) the number of instances during the preceding 6-
month period in which the interactive computer service
provider decided to not take action under subsection
(c)(1)(B)(iii) with respect to content that violated
the acceptable use policy of the provider;
(E)(i) the number of instances during the preceding
6-month period in which an information content provider
appealed a decision to remove potentially policy-
violating content; and
(ii) the percentage of appeals described in clause
(i) that resulted in the restoration of content;
(F) a descriptive summary of the kinds of tools,
practices, actions, and techniques used during the
preceding 6-month period in enforcing the acceptable
use policy of the interactive computer service provider
that does not jeopardize the effectiveness of these
tools; and
(G) any other information with respect to the
preceding 6-month period that would enhance the
effectiveness of the transparency report, as determined
by the interactive computer service provider.
(3) Privacy.--An interactive computer service provider
shall publish the transparency report under paragraph (1) in a
manner that preserves the privacy of information content
providers.
(4) Format.--A provider of an interactive computer service
shall publish the information described in paragraph (2) with
an open license, in a machine-readable and open format, and in
a location that is easily accessible to consumers.
(e) Individual and Small Business Provider Exemptions.--
(1) Individual providers.--The following provisions shall
not apply to an individual provider:
(A) Clauses (i) and (iii) of subsection (a)(2)(C)
(relating to a live company representative and a
complaint system, respectively).
(B) Subsection (b) (relating to a complaint
system).
(C) Paragraphs (1)(B) and (2) of subsection (c)
(relating to processing complaints regarding
potentially policy-violating content and the process
after removal of such content, respectively).
(D) Subsection (d) (relating to a transparency
report).
(2) Small business providers.--
(A) In general.--The following provisions shall not
apply to a small business provider:
(i) Subsection (a)(2)(C)(i) (relating to a
live company representative).
(ii) Subsection (d) (relating to a
transparency report).
(B) Deadline for processing complaints regarding
potentially policy-violating content.--Subsection
(c)(1)(B) shall be applied to a small business provider
by substituting ``21 days'' for ``14 days''.
(f) Internet Infrastructure Service Exemption.--Subsections (a)
through (e) shall not apply to--
(1) a provider of an interactive computer service that is
used by another interactive computer service for the
management, control, or operation of that other interactive
computer service, including for services such as web hosting,
domain registration, content delivery networks, caching,
security, back-end data storage, and cloud management; or
(2) a provider of broadband internet access service, as
that term is defined in section 8.1(b) of title 47, Code of
Federal Regulations (or any successor regulation).
(g) Enforcement by Commission.--
(1) Unfair or deceptive acts or practices.--
(A) In general.--A violation of subsection
(c)(1)(B), (c)(2), or (d) shall be treated as a
violation of a rule defining an unfair or deceptive act
or practice under section 18(a)(1)(B) of the Federal
Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
(B) Limitation on authority.--Nothing in
subparagraph (A) shall be construed to supersede
paragraph (1) or (2) of section 230(c) of the
Communications Act of 1934 (47 U.S.C. 230(c)) or to
otherwise authorize the Commission to review any action
or decision by a provider of an interactive computer
service related to the application of the acceptable
use policy of the provider.
(2) Powers of commission.--
(A) In general.--Except as provided in subparagraph
(C), the Commission shall enforce this section in the
same manner, by the same means, and with the same
jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade
Commission Act (15 U.S.C. 41 et seq.) were incorporated
into and made a part of this Act.
(B) Privileges and immunities.--Except as provided
in subparagraph (C), any person who violates this
section shall be subject to the penalties and entitled
to the privileges and immunities provided in the
Federal Trade Commission Act (15 U.S.C. 41 et seq.).
(C) Nonprofit organizations.--Notwithstanding
section 4 of the Federal Trade Commission Act (15
U.S.C. 44) or any jurisdictional limitation of the
Commission, the Commission shall also enforce this
section, in the same manner provided in subparagraphs
(A) and (B) of this paragraph, with respect to
organizations not organized to carry on business for
their own profit or that of their members.
(h) No Effect on Other Laws.--Nothing in this section shall impair,
limit, expand, or otherwise affect the scope or application of--
(1) rule 65 of the Federal Rules of Civil Procedure;
(2) section 1651 of title 28, United States Code (commonly
known as the ``All Writs Act''); or
(3) any law pertaining to intellectual property,
including--
(A) title 17, United States Code; and
(B) 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'' or the ``Lanham Act'') (15
U.S.C. 1051 et seq.).
(i) GAO Report on Whistleblower Protection and Awards.--Not later
than 1 year after the date of enactment of this Act, the Comptroller
General of the United States shall submit a report to Congress
assessing the viability, including the anticipated cost and benefit to
consumers, of establishing a whistleblower protection and award program
for employees and contractors of interactive computer services, to be
administered by the Commission, that would enable reporting and
enforcement of violations of consumer protections that take place
online.
(j) NIST Voluntary Framework.--
(1) In general.--Not later than 18 months after the date of
enactment of this Act, the Director of the National Institute
of Standards and Technology shall develop a voluntary
framework, with input from relevant experts, that consists of
nonbinding standards, guidelines, and best practices to manage
risk and shared challenges related to, for the purposes of this
Act, good faith moderation practices by interactive computer
service providers.
(2) Contents.--The framework developed under paragraph (1)
shall include--
(A) technical standards and processes for the
sharing of information among providers of an
interactive computer service;
(B) recommendations on automated detection tools
and the appropriate nature and level of human review to
correct for machine error in assessing nuanced or
context-specific issues;
(C) standards and processes for providing
researchers access to data to conduct scientific,
historical, statistical, and other relevant research,
including with respect to content that is removed,
demonetized, or deprioritized by the provider of an
interactive computer service; and
(D) methods to strengthen the capacity of a
provider of an interactive computer service to
authenticate documentation of a determination by a
court that content or an activity violates Federal law
or State defamation law.
SEC. 6. PROTECTION EXEMPTIONS.
(a) Exemption From Liability Protection.--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) Protection exemption.--
``(A) In general.--Subject to subparagraph (B), the
protection under paragraph (1) shall not apply to a
provider of an interactive computer service, with
respect to illegal content shared or illegal activity
occurring on the interactive computer service, if the
provider--
``(i) has actual knowledge of the illegal
content or illegal activity; and
``(ii) does not remove the illegal content
or stop the illegal activity--
``(I) within 4 days of acquiring
that knowledge, subject to reasonable
exceptions based on concerns about the
legitimacy of the notice; or
``(II) if the knowledge is acquired
from a notice that emanates from a
default judgment or stipulated
agreement--
``(aa) within 10 days of
acquiring that knowledge; or
``(bb) if the provider
seeks to vacate the default
judgment or stipulated
agreement under subparagraph
(B)(i)(III) and the proceeding
initiated under that
subparagraph results in a
determination that the default
judgment or stipulated
agreement should remain intact,
within 24 hours of that
determination.
``(B) Notice emanating from default judgment or
stipulated agreement.--
``(i) Vacatur of default judgment or
stipulated agreement.--Subparagraph (A) shall
not apply to a provider of an interactive
computer service if--
``(I) a notice of illegal content
or illegal activity described in that
subparagraph emanates from a default
judgment or stipulated agreement;
``(II) the notice described in
subclause (I) does not include a sworn
affidavit with sufficient evidence to
constitute a prima facie showing in
support of each underlying cause of
action upon which the default judgment
or stipulated agreement was obtained;
``(III) not later than 10 days
after receiving the notice, the
interactive computer service provider
files, in good faith, to intervene and
seek to vacate the default judgment or
stipulated agreement in the court in
which the judgment was obtained; and
``(IV) the proceeding initiated
under subclause (III) results in
vacatur of the default judgment or
stipulated agreement.
``(ii) Costs and fees.--If the proceeding
initiated under clause (i)(III) results in a
determination that the default judgment or
stipulated agreement was sought fraudulently,
the provider of the interactive computer
service may seek reimbursement of costs and
fees relating to the proceeding.
``(C) Notice of illegal content or illegal
activity.--
``(i) In general.--A provider of an
interactive computer service shall be deemed to
have actual knowledge of illegal content or
illegal activity for purposes of subparagraph
(A) only if the provider receives notice of
such content or activity that substantially
complies with the requirements under clause
(ii) of this subparagraph.
``(ii) Elements.--Notice of illegal content
or illegal activity provided to a provider of
an interactive computer service as described in
clause (i) shall be in writing and include the
following:
``(I) A copy of the order from a
trial or appellate Federal or State
court, in its entirety, and unsealed if
the court has ordered it to be sealed,
under which the content or activity was
determined to violate Federal criminal
or civil law or State defamation law,
and to the extent available, any
references substantiating the validity
of the order, such as the web addresses
of public court docket information.
``(II) Information that is
reasonably sufficient to allow the
provider to identify and locate the
illegal content or illegal activity,
including each user or account engaged
in the illegal activity and specific
locations of content or accounts
involved in the illegal content or
activity, such as URLs, links, or
unique usernames.
``(III) Information reasonably
sufficient to permit the provider to
contact the complaining party, which
shall include--
``(aa) if the complaining
party is a user of the
interactive computer service,
information identifying the
user account; and
``(bb) if the complaining
party is not a user of the
interactive computer service,
an email address of the
complaining party.
``(IV) A statement by the
complaining party, made under penalty
of perjury in accordance with section
1746 of title 28, United States Code,
that--
``(aa) the information in
the notice is accurate; and
``(bb) the content or
activity described in the
notice has been determined by a
trial or appellate Federal or
State court to violate Federal
criminal or civil law or State
defamation law.
``(D) Notice to information content provider before
removal or stopping.--A provider of an interactive
computer service that receives notice of illegal
content or illegal activity shall notify the
information content provider before removing the
content or stopping the activity, subject to
commercially reasonable expectations.
``(E) Limitations for internet infrastructure
services.--Subparagraph (A) shall not apply with
respect to--
``(i) an interactive computer service that
is used by another interactive computer service
for the management, control, or operation of
that other interactive computer service,
including for services such as web hosting,
domain registration, content delivery networks,
caching, security, back-end data storage, and
cloud management; or
``(ii) a provider of broadband internet
access service, as that term is defined in
section 8.1(b) of title 47, Code of Federal
Regulations (or any successor regulation).
``(F) Monitoring or affirmative fact-seeking not
required.--Nothing in this paragraph shall be construed
to condition the applicability of paragraph (1) to a
provider of an interactive computer service on the
provider monitoring the interactive computer service or
affirmatively seeking facts indicating illegal content
or illegal activity in order to identify instances of
content or activity additional to any instances about
which the provider has received notice.
``(G) Enforcement exemption.--Nothing in this
paragraph shall be construed to impair or limit the
application of paragraph (1) or (2) of subsection (e).
``(H) No effect on other laws.--Nothing in this
paragraph shall impair, limit, expand, or otherwise
affect the scope or application of--
``(i) rule 65 of the Federal Rules of Civil
Procedure;
``(ii) section 1651 of title 28, United
States Code (commonly known as the `All Writs
Act'); or
``(iii) any law pertaining to intellectual
property, including--
``(I) title 17, United States Code;
and
``(II) 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'' or the
`Lanham Act') (15 U.S.C. 1051 et
seq.).''.
(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) Illegal activity.--The term `illegal activity' means
activity conducted by an information content provider that has
been determined by a trial or appellate Federal or State court
to violate Federal criminal or civil law.
``(6) Illegal content.--The term `illegal content' means
information provided by an information content provider that
has been determined by a trial or appellate Federal or State
court to violate--
``(A) Federal criminal or civil law; or
``(B) State defamation law.''.
(c) Technical Correction.--Section 230(c)(2)(B) of the
Communications Act of 1934 (47 U.S.C. 230(c)(2)(B)) is amended by
striking ``paragraph (1)'' and inserting ``subparagraph (A)''.
SEC. 7. FEDERAL AND STATE ENFORCEMENT.
Section 230(e)(1) of the Communications Act of 1934 (47 U.S.C.
230(e)) is amended to read as follows:
``(1) No effect on federal criminal or civil law.--Nothing
in this section shall be construed to limit, impair, or prevent
the enforcement or investigation by the Federal Government or a
State attorney general, as applicable, of--
``(A) any other Federal criminal or civil statute;
or
``(B) any regulation of an Executive agency (as
defined in section 105 of title 5, United States Code)
or an establishment in the legislative branch of the
Federal Government.''.
SEC. 8. SEVERABILITY.
If any provision of this Act or an amendment made by this Act, or
the application of such a provision or amendment to any person or
circumstance, is held to be unenforceable or invalid, the remaining
provisions of this Act and amendments made by this Act, and the
application of the provision or amendment so held to other persons not
similarly situated or to other circumstances, shall not be affected
thereby.
SEC. 9. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect on
the date that is 18 months after the date of enactment of this Act.
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