CONGRESS CANNOT CONSTITUTIONALLY DELEGATE THE POWER TO RESTRICT LAWFUL SPEECH UPON ANY AGENT, WHETHER OFFICIAL OR PRIVATE, BECAUSE IT IS NOT A POWER THAT THE CONGRESS CAN RIGHTFULLY EXERCISE ITSELF.

RESEARCHED AND PREPARED

BY:

JASON FYK AND DAVE MORGAN

 

118th CONGRESS H.R. __________

1st Session

Legislative Intent: To rearticulate the text in a way that realigns the court’s application of Title 47, United States Code, §230 of the Communications Decency Act (“CDA”) in line with the legislature’s original intent, the interests of the public, and the Constitution of the United States of America.

 

IN THE HOUSE OF REPRESENTATIVES

January _______, 2023

M. ______ _________________ introduced the following bill which was referred to House Committee on Energy and Commerce.

 

A BILL

To realign the limited federal immunity (the “Good Samaritan” – predicated protection) of Title 47, United States Code, Section 230 (the “CDA”) with its original purpose(s), namely, to protect the public from proscribed – unlawful material, facilitate online free speech, due process, and to restore accountability of an interactive computer service provider that does not act in good faith, in the public’s interests, and / or for the good of others. To clarify the ambiguous text of the statute, prevent unlawful, arbitrary and capricious censorship, promote uniform enforcement, and provide a series of voluntary obligations and procedural safeguards to maintain liability protections, while also respecting the Constitutional Rights of both the Interactive Computer Service Provider and Users.

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 “Online Freedom Act” (“OFA”).

SECTION 2. SCOPE OF PROTECTION.

Section 230 of the Communications Decency Act of 1996 (Title 47, United States Code, Section 230) is amended—

(c) PROTECTION FOR “GOOD SAMARITAN” BLOCKING AND SCREENING OF OFFENSIVE UNLAWFUL MATERIAL.

(1) TREATMENT OF PUBLISHER OR SPEAKER INACTIVE PROVIDER OR USER

No provider or user of an interactive computer service shall be treated as the specific publisher or speaker who created or developed any information that is entirely provided by another information content provider.

(2) ACTIVE PUBLISHER OR SPEAKER CIVIL LIABILITY PROTECTION

No provider or user of an interactive computer service shall be held liable on account of—

 

(A) any action, voluntarily and uniformly undertaken 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, or otherwise objectionable, whether or not such material is constitutionally protected reasonably considers unlawful; or

(B) any action taken to enable or make available to other information content providers users the technical means to self-restrict access to any material, whether or not such material is constitutionally protected. described in paragraph (1).[1]

(d) OBLIGATIONS OF INTERACTIVE COMPUTER SERVICE

A provider of 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 such 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. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

An interactive computer service is accountable to the public, with its actions subject to judicial review. An interactive computer service shall engage in reasoned decision-making, and courts are directed to set aside any decision that is arbitrary or capricious, not in good faith, or not that of a “Good Samaritan.”

1. An interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service, (a) notify such customer that parental control protections are commercially available (such as computer hardware, software, or filtering services) that may assist the parents or guardians in limiting access to material that is harmful to minors; or (b) make parental control protections directly available to the customer.

2. To maintain liability protection, the provider or user of an interactive computer service who takes any action to restrict access to or availability of another publisher’s materials, shall make all reasonable effort in good faith to abide by at least the following:

(A) Act as a “Good Samaritan;”

(B) Make all reasonable effort to protect children from known harm or indecencies;

(C) Timely notify authorities of any known credible threat of violence or imminent harm;

(D) Preserve free and open debate;

(E) Establish plain and precisely stated prohibitions;

(F) Enforce prohibitions uniformly;

(G) Timely cite the specific violation when any action is taken to restrict user material;

(H) Establish a dispute resolution process and attempt to resolve disputes expeditiously;

(I) Provide equal access to services;

(J) Only authorize a United States citizen to restrict the materials of another United States citizen;

(K) Strictly maintain user privacy;

(L) Not interfere with private communications unless such communication is to a minor; and

(M) Not engage in anticompetitive, unlawful, or deceptive restrictions.

(e) Effect on other laws (No change)

(f) DEFINITIONS

As used in this section:

(1) INTERNET

The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.

(2) INTERACTIVE COMPUTER SERVICE

The term phrase “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.

(3) INFORMATION CONTENT PROVIDER

The term phrase “information content provider” means any person or entity that is directly or indirectly responsible, in whole or in part, for the creation or development of in its entirety (i.e., in whole) or to any divisible extent (i.e., in part), for the act of bringing material into existence (i.e., creation) or for any action(s) taken to solicit, expound, encourage, sponsor, make available, modify, manipulate, advance, and / or promote the growth of information provided through the Internet or any other interactive computer service, especially by deliberate effort over time (i.e., development).

(4) ACCESS SOFTWARE PROVIDER

The term phrase “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 content;

(B) pick, choose, analyze, or digest content; or

(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.

(5) “GOOD SAMARITAN”

The phrase “Good Samaritan” means any action taken, to render care for the good of others, in the public’s interest, in good faith, not for compensation and without gross negligence or wanton and willful misconduct.

(6) GOOD FAITH

The phrase “good faith” means an honest and sincere intention to deal openly, promptly, honestly and fairly, regardless of outcome.

(7) REASONABLY CONSIDERS

The phrase “reasonably considers” means using moderate, fair, and sound judgment to justify a decision based on intelligible and rational grounds or motive.

(8) REASONABLY CONSIDERS UNLAWFUL

The phrase “reasonably considers unlawful” means any governmentally prohibited or illicit information contrary to accepted morality or convention (e.g., cyberstalking, sex trafficking, trafficking in illegal products or activities, sexual exploitation, obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, child pornography, or materials otherwise proscribed by law).

(9) PLAIN AND PRECISELY STATED PROHIBITIONS

The phrase “plain and precisely stated prohibitions” means to define an offense with sufficient definiteness and clarity that the ordinary person can understand what conduct is prohibited, in a manner that discourages arbitrary or discriminatory enforcement.

(10) VOLUNTARILY

The term “voluntarily” means acting of one’s own free will, without any direct influence, coercion, or obligation.

 

Mission:

SUMMARY

• The Supreme Court recognized Congress cannot possibly create, adjudicate and enforce every single law (i.e., regulatory code). This created a need for commissions (e.g., the FCC). A commission² is tasked with creating, adjudicating, and enforcing regulatory code for an industry. Commissions are authorized to act as an administer³ of a Congressional directive (i.e., as a state agent), to perform a prescribed act in a prescribed manner.

• Title 47 U.S. Code Section 230 commissions private entities, to “voluntarily” act as a representative of Congress, in the prescribed way (i.e., “to block and screen offensive material”), and in the prescribed manner (i.e., as a “Good Samaritan” in good faith) to create, adjudicate, and enforce rules (i.e., administer regulatory code) for the internet industry, under the protection of government.

• Typically, public (disinterested) commissions must follow their own set of rules (i.e., qualifications and procedural guidelines). For example, the FCC must follow the Administrative Procedures Act (APA). When any agency takes an “agency” action, to deny a United States citizen of life, liberty, or property, and that action is arbitrary, capricious or it does not follow the Administrative Procedures Act, that action or regulatory code can be challenged in a court law.

• Unlike public commissions who must act, and are subject to strict qualifications, oversight, and procedural safeguards, a private (self-interested) commission (e.g., in the case of Section 230) can “voluntarily” choose to act or choose not act, has no qualifications, no legislative oversight, no procedural safeguards and is largely uncontrollable⁴ by the courts.

• Simply put, Section 230 unconstitutionally delegates self-interested private corporations state authority, to arbitrarily deny US citizens of their liberty, property and lawful speech, under the protection of government, for any reason, without cause, qualification, procedural safeguard or legislative oversight, and their “scope of delegation” (i.e., their authority) is, as Justice Scalia once noted, “largely uncontrollable by the courts”. In essence, Section 230 grants any unqualified, privately owned Interactive Computer Service Providers, absolute, unlimited, uncontrollable, sovereign (i.e., ‘state’) protection, to unconstitutionally restrict the “life, liberty and property” of others, without Due Process and without respecting their free speech rights.

Cause:

1. Unconstitutional Delegation of Authority:

“The [Commission] (e.g., an Interactive Computer Services) issues a legislative rule (e.g., Community Standard) under authority given to it by Congress in statutes (e.g., Title 47 U.S. Code Section 230). The statutory delegation of authority (e.g., to block and screen offensive material) can range from broad discretionary authority (e.g., in good faith as a “Good Samaritan”) to a very specific mandate (e.g., strict qualifications, oversight and procedural guidelines expressed in The Online Freedom Act )” ⁵

² https://www.merriam-webster.com/dictionary/commission 2a: an authorization or command to act in a prescribed manner or to perform prescribed acts:

³ https://www.merriam-webster.com/dictionary/administer: manage or supervise the execution, use, or conduct of

⁴ In Mistretta v. United States, 109 S.Ct., 647 (1989) Justice Scalia warned that “the [broad] scope of delegation is largely uncontrollable by the courts, we must be particularly rigorous in preserving the Constitution’s structural restrictions that deter excessive delegation [e.g., Section 230]. The major one, it seems to me, is that the power to make law cannot be exercised by anyone other than Congress, except in conjunction with the lawful exercise of executive or judicial power.” Id. at 678 (emphasis added).

⁵ https://www.fcc.gov/about-fcc/rulemaking-process

Section 230 currently delegates absurd, nearly unlimited , exploitable and uncontrollable government discretionary authority, to make “ a[ny] publication decision,” whether or not it is in the public interest, or even lawful. Section 230, under The Online Freedom Act, will only provide limited protection for “ very specific mandate[ s]” that are not absurd , exploitable, and are not uncontrollable by the courts.

2. Misapplication and Exploitation:

On its face, Section 230 is an unconstitutional delegation of authority, but as applied, courts have “departed from the most natural reading of the text” further compounding the problem. “Courts have long emphasized non –textual arguments” often misapplying Section 230( c)(1) protection to cases fitting the 230(c)(2) paradigm, rendering the statute disharmonious and redundant. As a result, technology companies have been financially, ideologically and / or politically inclined to exploit their authority “far beyond anything that plausibly could have been intended by Congress.”

Solution:

There are two approaches to resolving the Section 230 “problem ”. The first is a judicial approach (see: Fyk vs. The United States ), and the second is a legislative approach. The “ Online Freedom Act” (“OFA”) represents the legislative approach. Our ‘solution’ is to replace the applicable subsections of Title 47 U.S. Code

Section 230 with the Online Freedom Act, thereby supplanting its “ broad

[exploitable and uncontrollable] discretionary authority ” with “ very specific [controllable] mandates” and procedural safeguards.

The Online Freedom Act articulates the specific “obligations” ( i.e., the specific legislative mandates) that a private commission (i.e., a Service Provider) must voluntarily abide by, in good faith, to maintain its civil liability protection.

Put simply, a private entity is not compelled to act (i.e., the OFA respects the rights of both the provider and the user) , but it shall not be afforded civil

liability protection ( i. e., the statutory privilege ) if it does not choose to

voluntarily act under the obligations set forth in the Online Freedom Act. Conclusions:

1. Section 230 is irrefutably an administrative law that unconstitutionally delegates vast regulatory authority to unqualified private self-interested companies.

2. Section 230 presently permits the restriction of third-party’s lawful speech, under the aegis of government, and inhibits the free market (including its own competition) without any legislative oversight or procedural safeguards.

3. The Online Freedom Act supplements the missing qualifications, oversight, and safeguards by specifying in clear, easily understood terms, the obligations a provider or user must voluntarily abide by, to maintain its liability protections.

4. The Online Freedom Act clarifies the mistaken textual interpretations and provides guideposts for the courts to adequately apply and control the statute.

Resolution:

1. • Section 230(c): The word “offensive” (meaning: unpleasant or displeasure)⁶ has been substituted with the word “proscribed” (meaning; to condemn or forbid as harmful or unlawful)⁷. Any and / or all material can be considered “offensive” (i.e., broad discretion) to someone. “Proscribed” material is far more specific discretion that focuses on disallowed or forbidden material.

1. • Section 230(c)(1): The word “PASSIVE” has been added to the title to denote this section relates to the publisher or speaker’s inactive / passive publishing role (i.e., definitional protection). This change serves to delineate the harmonious difference between 230(c)(1) and 230(c)(2) protection⁸. Similarly, the word “principal” (meaning; controlling authority or is in a leading position)⁹ has been added to delineate “the” leading publisher from “a” secondary publisher¹⁰. This prevents, as Justice Thomas noted, “giving Internet companies immunity for their own content.” The phrase “for any action entirely taken by, or any information entirely provided” has been altered to clarify (i.e., mainly to the courts) all publishing conduct or information content provision must be taken entirely¹¹ by the leading publisher (i.e., someone else), other than the provider or user in question.

1. • 230(c)(2): The title phrase “ACTIVE PUBLISHER OR SPEAKER CIVIL LIABILITY

PROTECTION” has been altered to denote this section specifically relates to the publisher or speaker’s active publishing role (i.e., direct liability protection). This change also serves to delineate the harmonious difference between 230(c)(1) and 230(c)(2) protection.

1. • 230(c)(2)(A): The phrase “, voluntarily and uniformly undertaken in good faith,” has been altered, and commas added, to delineate the difference between the private choice (i.e., voluntarily undertaken), to engage in the “protected” conduct, and the state authorized prescribed directive (i.e., any action to restrict proscribed materials). Additionally, any entity, authorized by the US government, to regulate content, must do so uniformly¹² (See also: Obligation 230(d)(6)).

1. • 230(c)(2)(A) (con’t): The phrase “whether or not such materials are Constitutionally protected” has been omitted in its entirety, because Congress cannot, constitutionally, delegate the power to restrict lawful speech upon any agent (whether official or private) because it is not a power that Congress can rightfully exercise itself.

⁶ https://www.merriam-webster.com/dictionary/offensive

⁷ https://www.merriam-webster.com/dictionary/proscribe

⁸ Since Zeran vs. AOL inc., courts have mistakenly believed 230(c)(1) protects active “traditional editorial function”. This interpretation is at odds (i.e., disharmonious) with the primary function or 230(c)(2). 230(c)(1) can only (i.e., harmoniously and as a whole text) relate to passive hosting– unknowingly hosts harmful content (i.e., inactive publishing role whereby the provider fails to remove harmful content).

⁹ https://www.merriam-webster.com/dictionary/principal

¹⁰ Courts have erroneously interchanged the words “a” and “the” thereby converting 230(c)(1) from protection from being treated as “the” [principal] publisher (i.e., as someone else, for the conduct and content provision of another) into not being treated as “a” [secondary] publisher (i.e., as themselves, for their own conduct and content provision).

¹¹ Whether in a primary, secondary, direct, or indirect role (also see: 230(f)(3))

¹² “[T]he [SCOTUS] has recognized the narrow categories that the government [or government authorized agent] may regulate because of their content, as long as it does so evenhandedly [i.e., uniformly].” https://crsreports.congress.gov/product/pdf/IF/IF11072 (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)).

1. • 230(c)(2)(B): The phrase “materials described in Subsection 230(c)(2)(A), is subject to the protection of Subsection 230(c)(1)” has been altered to correct the clerical mistake¹³ and resolve the statutory confusion. Subsection 230(c)(B) references materials described in “paragraph (1).” Paragraph

(1) (i.e., whether (in)correct) statutorily refers to Subsection 230(c)(1), however, it seems to describe the previous paragraph (A), but was mistakenly referred to as paragraph (1). Here, both paragraphs could potentially apply, whereby the materials are described in Paragraph (A) (i.e., Subsection 230(c)(2)(A)) and the protections are the same passive (definitional treatment) protection of Paragraph (1) (i.e., Subsection 230(c)(1)). This alteration considers both scenarios and incorporates them accordingly.

4. GOOD FAITH OBLIGATIONS OF INTERACTIVE COMPUTER SERVICE

To date, Section 230 has virtually no obligations (i.e., specific legislative mandates) for the privilege ¹⁴ of receiving l iability protection . The only two notable obligations are to act as a “Good Samaritan” and in good faith. The changes contained in this section, do nothing to compel a service provider ’s actions, but rather, it makes liability protection ‘privilege’ contingent upon the Interactive Computer Service voluntarily abiding by the good faith obligations, which are written in accordance with standard public (disinterested) regulatory commission qualifications, and procedural guidelines .

Section 230(d): This section specifically instructs the court to “ set aside any [ moderation] decision ” ( i. e., deny Section 230 protection privilege) that is

arbitrary, capricious, unreasoned, not in good faith, or not that of a “Good

Samaritan”: “An interactive computer service is accountable to the public, with its actions subject to judicial review. An interactive computer service shall

engage in reasoned decision-making, and courts are directed to set aside an y decision that is arbitrary or capricious, not in good faith, or not that of a

‘Good Samaritan.’”

1. • 230(d)(1): This subsection is a rendered down version of the current preexisting Section (d) obligations of an interactive computer service. This subsection now reads: “An interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service, (a) notify such customer that parental control protections are commercially available (such as computer hardware, software, or filtering services) that may assist the parents or guardians in limiting access to material that is harmful to minors; or (b) make parental control protections directly available to the customer.”

1. • 230(d)(2): This subsection did not previously exist, and it lays out, in simple terms, the obligations (i.e., the specific legislative mandates) an Interactive Computer Service Provider must voluntarily abide by, in order to maintain civil liability protections. This subsection now reads: “To maintain liability protection, a provider of an interactive computer service shall make all reasonable effort in good faith to abide by the following:

4. 1. Act as a Good Samaritan. (General Directive)

   2. Protect children from harm. (Principal Motivation)

   3. Timely notify authorities of any credible threat of violence or eminent harm. (Public Safety)

   4. Preserve free and open debate. (Free Speech)

¹³ Subsection 230(c)(2)(B), Footnote [1]: “So in original. Probably should be ‘subparagraph (A).’”

¹⁴ Privilege: a right or immunity granted as a peculiar benefit, advantage, or favor. https://www.merriam- webster.com/dictionary/privilege

4. 5. Establish clear and precise prohibitions. (Fair Notice)

   6. Enforce prohibitions uniformly. (Uniform Enforcement)

   7. When any action is taken to restrict material, timely cite the specific prohibition violated.

(Show Cause)

4. 8. Establish a dispute resolution process and attempt to resolve disputes expeditiously. (Due Process)

   9. Provide equal access to services. (Equality)

   10. Only authorize a United States Citizen to restrict another United States citizen. (Foreign Interference)

   11. Strictly maintain user privacy. (Privacy)

   12. Not interfere with private communications unless such communication is inappropriate and to a minor. (Common Carrier)

   13. Not engage in anticompetitive, unlawful, or deceptive restrictions.

(Antitrust / Contract Law)

6. DEFINITIONS:

1. • 230(f)(3): Courts have often come to arbitrary determinations as to what is and is not “creation” or “development”, and what is and is not “in whole or in part”. This section serves to adequately define the specific terms and their proper application, thereby eliminating any judicial confusion. This change prevents the service provider from being able to act as a direct or indirect Information Content Provider, especially if content is developed by “deliberate effort over time” (i.e., ongoing deceptive algorithmic manipulation – aka deceptive development).

1. • 230(f)(5): The purpose for defining the “GOOD SAMARITAN” general provision (i.e., Section 230’s “intelligible principle”) is to ensure Interactive Computer Service Providers act for the good of others and in good faith, as the statute was intended. Administrative authority must only be commissioned (i.e., whether private or public, voluntary, or obligatory) in the interest of the public (i.e., not for the interests of the administrator).

1. • 230(f)(6): The purpose for defining the term “GOOD FAITH” is to ensure an Interactive Computer Service Provider’s (in)actions are open, honest, and fair, regardless of the outcome.

1. • 230(f)(7): The purpose for defining the term “REASONABLY CONSIDERS” is to ensure moderate, fair and sound judgement is used to justify a regulatory decision, based on easily understood and rational grounds or motive.

1. • 230(f)(8): The purpose for defining the term “OTHERWISE UNLAWFUL” is to ensure Interactive Computer Service Providers specifically act to eliminate strictly prohibited, illicit or proscribed unlawful information rather than any information considered mildly “objectionable”. The United States cannot constitutionally abdicate authority that it, itself, does not possess, to any other entity, public or private. The only authority that can be abdicated is the authority to restrict unlawful speech (i.e., speech that is recognized and proscribed by the United States). Defining the term “otherwise unlawful” helps prevent arbitrary and capricious enforcement of vague, overbreadth, self-interested regulations.

1. • 230(f)(9): The purpose for defining the term “PLAIN AND PRECISELY STATED PROHIBITIONS” is to ensure the ordinary person clearly knows what is prohibited with sufficient definiteness (i.e., fair notice) that the ordinary person can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. This is to ensure the ordinary

person knows what is specifically prohibited, preventing vague overbreadth¹⁵ content restrictions, which can have a discouraging effect (i.e., “the chilling effect”¹⁶) or influence future permissible speech.

6. GOOD FAITH ENFORCEMENT(TBD)

¹⁵ Substantial Overbreadth: a doctrine in constitutional law: a law that prohibits protected conduct (as free speech) as part of its reach may be struck down as unconstitutional if the threat to protected activity is a substantial effect and if it cannot be clearly removed. https://www.merriam-webster.com/legal/overbreadth

¹⁶ https://www.merriam-webster.com/legal/chilling%20effect