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September 23, 2020

The Honorable Michael R. Pence
President
United States Senate
Washington, DC 20510
Dear Mr. President:
On behalf of the Administration, I am pleased to present for consideration by Congress a
legislative proposal to modernize and clarify the immunity that 47 U.S.C. § 230 provides to
online platforms that host and moderate content. Ensuring that the internet is a safe, but also
vibrant, open, and competitive environment is vitally important to America. This proposed
legislation recalibrates Section 230 immunity to take into account the vast technological changes
that have occurred since the Communications Decency Act of 1996 was passed to incentivize
online platforms to better address criminal content on their services and to be more transparent
and accountable when removing lawful speech.
Section 230 was enacted in the early days of internet commerce to immunize online
platforms (which the statute refers to as "interactive computer services") for claims based on
third-party content hosted by the platform and for the good-faith removal of harmful content to
children. Before Section 230 was enacted, courts held that an online platform that removes
certain content from its service could be held liable as a publisher or speaker for all other
content. Platforms thus faced a dilemma. Platforms could have tried to moderate third-party
content but risk being held liable for any and all content posted by a third party, or choose not to
moderate content to avoid liability but risk having the platform overrun with obscene or
defamatory content. Section 230 resolved this problem by providing that online platforms were
not liable for third-party content posted on their services and were not liable for removing certain
categories of harmful content.
The beneficial role Section 230 played in building today' s internet, by enabling
innovations and new business models, is undisputed. It is equally undisputed, however, that the
internet has drastically changed since I 996. Many of today' s online platforms are no longer
nascent companies but have become titans of industry. Platforms have also changed how they
operate. They no longer function as simple forums for posting third-party content, but use
sophisticated algorithms to suggest and promote content and connect users. Platforms can use
this power for good to promote free speech and the exchange of ideas, or platforms can abuse
this power by censoring lawful speech and promoting certain ideas over others.

 The Honorable Michael R. Pence
Page Two
Against these changed technological and economic backdrops, courts also have
interpreted Section 230 immunity broadly, thereby expanding the scope of immunity far beyond
speech torts such as defamation. For example, platforms have been allowed to invoke Section
230 to escape liability even when they knew their services were being used for criminal activity.
Platforms also have used Section 230 immunity to evade laws and regulations applicable to
brick-and-mortar competitors. The proposed legislation accordingly seeks to align the scope of
Section 230 immunities with the realities of the modern internet while ensuring that the internet
remains a place for free and vibrant discussion.
The statute currently provides two types of immunity. Section 230(c)( I) currently
provides that platforms shall not "be treated as the publisher or speaker of any information
provided by [third parties]," while Section 230(c)(2) shields certain content moderation decisions
..voluntarily taken in good faith." This structure allows platforms to moderate harmful content
while not being automatically liable for overlooked content. Unfortunately, the statute has not
always functioned in that manner. To address this problem and clarify the intended scope of
immunity, the proposed legislation first revises the text of 47 U.S.C. §§ 230(c)(l) and (c)(2) and
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then provides new exclusions f om the immunity and definitions to other parts of the statute.
The proposed legislation represents a measured but concrete approach to reforming Section 230
in a number of important respects.
The first category of amendments clarifies the scope of immunity as applied to content
moderation decisions to ensure that platforms cannot hide behind the shield of Section 230 to
censor lawful speech in bad faith and inconsistent with their own terms of service.
First, the legislation clarifies the interplay between§§ 230(c)(l) and (c)(2), specifically
that platforms cannot use§ 230(c)(l) as a shield against moderation decisions that fall outside
the explicit limitations of§ 230(c)(2). The proposed legislation further revises the existing
language of§ 230(c)(2) to replace vague terms that may be used to shield arbitrary content
moderation decisions with more concrete language that gives greater guidance to platforms,
users. and courts. Currently,§ 230(c)(2)(A) shields "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, or otherwise objectionable." While courts
should construe "otherwise objectionable" in light of the surrounding statutory terms, some
courts have read the language so broadly that platforms essentially use it as blank check to take
down any content they want. The proposed reform therefore replaces ·'otherwise objectionable,"
with more specific language, including ·'promoting terrorism or violent extremism", "promoting
self-harm,'· and "unlawful."
Section 230(c)(2) is also amended to require platforms to have an "objectively reasonable
belief' that the speech they are removing indeed falls within the enumerated categories. In
addition, a new statutory definition of "good faith" is provided in new section, § 230(g)(5), to
require plain and particular terms of service and explanations for take-down decisions. These
reforms will discourage deceptive or pretextual takedowns of lawful content. Just as Section 230
immunity promotes free speech by limiting a heckler's ability to credibly threaten a platform with

 The Honorable Michael R. Pence
Page Three
liability for failing to remove content, it should not hinder free speech by making platforms
completely unaccountable for moderation decisions.
A platform that chooses not to host certain types of content would not be required to do
so, but it must act in good faith and abide by its own terms of service and public representations.
Platforms that fail to do those things should not enjoy the benefits of Section 230 immunity. The
proposal adds a provision§ 230(c)( l )(C) to make clear that online platforms can continue to take
down content in good faith and consistent with their terms of service without automatically
becoming a publisher or speaker of all other content on their service.
The legislative proposal also adds language to the definition of "information content
provider" under current§ 230(f)(3). Under the existing statute, an online platform that is
'·responsible, in whole or in part, for the creation or development of information" is not entitled
to Section 230 immunity. The proposal clarifies that being responsible "in whole or in part"
includes situations in which a platform ·'solicits, comments upon, funds, or affirmatively and
substantively contributes to, modifies, or alters the content of another person or entity." This
amendment is consistent with the original purpose of Section 230. While online platforms do not
have an obligation to monitor and screen all third-party content, they cannot avoid liability for
harms arising from specific material if the platforms actively choose to modify or encourage it.
The second category of amendments is aimed at incentivizing platforms to address the
growing amount of illicit content online, while preserving the core of Section 230's immunity for
defamation claims. Section 230 immunity is meant to incentivize and protect online Good
Samaritans, as evidenced by the original title of§ 230(c): "Protection for 'Good Samaritan'
blocking and screening of offensive material." As the famous parable recounts, a Good
Samaritan is someone who goes out of his or her way to help another in need. It therefore
follows that platforms that purposely solicit and facilitate harmful criminal activity-in effect,
online Bad Samaritans-should not receive the benefit of this immunity. Accordingly, the
proposed legislation adds a new section,§ 230(d). This section identifies three specific
exclusions from immunity- platforms that (I) purposefully promote, facilitate, or solicit third­
party content that would violate federal criminal law; (2) have actual knowledge that specific
content it is hosting violates federal law; and (3) fail to remove unlawful content after receiving
notice by way of a final court judgment.
These new provisions are narrowly tailored in two important ways. First, they require a
heightened mens rea-either acting "purposefully" or having actual knowledge. These
requirements avoid sweeping in innocent or accidental acts or omissions by online platforms.
Second, other than the court-order provision, the exclusions are limited to distribution or
facilitation of third-party content that would violate.federal criminal law. Providing platforms
with civil immunity for facilitating such egregious illicit content is inconsistent with the purpose
of Section 230 of the Communications Decency Act to encourage platforms to make the internet
a safer place for children.
In addition to new§ 230(d), the proposal would add two sets of new carve-outs to those
currently listed under§ 230(e), which defines the statutory immunity's "effect on other

 The Honorable Michael R. Pence
Page Four
laws." First, carved out from immunity are three specific categories of claims: (I) child
exploitation and sexual abuse; (2) terrorism; and (3) cyber-stalking. These are targeted carve­
outs to address the over-expansion of Section 230 immunity that has limited the ability of
victims of these specific offenses to seek civil redress in causes of action far afield from the
statute's core objectives. The proposal also provides an explicit carve-out for claims brought
under the federal antitrust laws, which promotes competition and clarifies that Section 230
immunity is unavailable to internet companies when they assert it against claims of
anticompetitive conduct.
Finally, the proposed legislation would amend current§ 230(e) to expressly confirm that
the immunity provided by this statute does not apply to civil enforcement actions brought by the
federal government. In the decades since Congress passed Section 230, the widespread
availability of internet access, the growth in the number of "interactive computer services," the
ubiquity of smartphones, and the advent of social media have all contributed to an exponential
increase in online crimes. Although federal criminal enforcement actions have always been
outside the scope of Section 230 immunity, online crime is a serious and growing problem, and
there is no justification for blocking the federal government from civil enforcement. The
proposed provision is narrowly tailored to clarify that the government's civil enforcement
capabilities are uninfringed by Section 230 without opening the floodgates to private damages
lawsuits.
Thank you for the opportunity to present this proposed legislation.
We are sending an identical response to The Honorable Nancy Pelosi, Speaker of the
U.S. House of Representatives.
Sincerely,

William P. Barr
Attorney General
Enclosures