October 27, 2021

Volume XI, Number 300

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October 27, 2021

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SECTION 230 IMMUNITY UNDER FIRE: House Democrats Unveil their Own Bill to Limit Communications Act Section 230

As we reported last week, Republican Senator Lindsey Graham has proposed a bill to repeal Communications Act Section 230. 

Well, yesterday a group of House Democrats proposed their own bill to amend Section 230 to remove absolute immunity in some cases. Specifically, where a platform makes a “personalized recommendation” of content supplied by a user the platform may be held responsible for harm caused by that content.

Interestingly, the bill does not seem to require that the platform knew or should have known the content was false or otherwise likely to cause harm.

As before, however, I need to be cautious what I say here so I’ll just lob the text of the bill here and you can draw your own conclusions:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Justice Against Malicious Algorithms Act of 2021’’.

SECTION 2. PERSONALIZED RECOMMENDATION OF THIRD PARTY INFORMATION.

 (a) IN GENERAL.—Section 230 of the Communications Act of 1934 (47 U.S.C. 230) is amended—

(1) by redesignating subsection (f) as subsection (g); (2) by inserting after subsection (e) the following:

‘‘(f) PERSONALIZED RECOMMENDATION OF INFORMATION PROVIDED BY ANOTHER INFORMATION CONTENT PROVIDER.—

 ‘‘(1) IN GENERAL.—Subsection (c)(1) does not  apply to a provider of an interactive computer service with respect to information provided through such service by another information content provider if—
 ‘‘(A) such provider of such service—‘‘(i) knew or should have known such provider of such service was making a personalized recommendation of such information; or ‘‘(ii) recklessly made a personalized recommendation of such information; and
‘‘(B) such recommendation materially contributed to a physical or severe emotional injury  to any person.

 ‘‘(2) EXEMPTIONS.—

‘‘(A) SMALL BUSINESSES.—Paragraph (1)  of this subsection does not apply to an interactive computer service that (in combination with each subsidiary and affiliate of the service) has 5,000,000 or fewer unique monthly visitors or users for not fewer than 3 of the preceding 12 months.

‘‘(B) USER-SPECIFIED SEARCH.—Paragraph (1) of this subsection does not apply to a provider of an interactive computer service to the extent that the recommendation was made directly in response to a user-specified search.

 ‘‘(C) INTERNET INFRASTRUCTURE.—

Paragraph (1) of this subsection does not apply to a provider of an interactive computer service to the extent that the service, system, or access software of such provider is used by another interactive computer service for the management, control, or operation of such other interactive computer service, including for— ‘‘(i) web hosting;‘‘(ii) domain registration; ‘‘(iii) content delivery networks; ‘‘(iv) caching; ‘‘(v) data storage; and ‘‘(vi) cybersecurity.’’; and

(3) in subsection (g) (as so redesignated), by adding at the end the following:
‘”(5) PERSONALIZED RECOMMENDATION.—The term ‘personalized recommendation’ means, with respect to information, the material enhancement, using a personalized algorithm, of the prominence of such information with respect to other information.
‘(6) PERSONALIZED ALGORITHM.—The term ‘personalized algorithm’ means an algorithm that relies on information specific to an individual.
‘(5) ALGORITHM.—The term ‘algorithm’ means any computational process, model, or other automated means of processing to rank, order, promote, recommend, amplify, or similarly alter the delivery or display of information (including any text, image, audio, or video post and any page, group, account, channel, or affiliation).’’.

(b) CONFORMING AMENDMENT.—Section 223(h)(2) of the Communications Act of 1934 (47 U.S.C. 223(h)(2))  is amended by striking ‘‘section 230(f)(2)’’ and inserting ‘‘section 230(g)(2)’’.

(c) APPLICABILITY.—The amendments made by this section shall apply with respect to recommendations made after the date that is 180 days after the date of the enactment of this Act.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 287
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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