IN THE SENATE OF THE UNITED STATES
September 13, 2021
Mr. Blumenthal (for himself, Mrs. Feinstein, and Mr. Whitehouse) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
To amend the Communications Decency Act to remove immunity for online firearms marketplaces, and for other purposes.
This Act may be cited as the
Accountability for Online Firearms Marketplaces Act of 2021.
Congress finds the following:
The core purpose of section 230 of the Communications Act of 1934 (47 U.S.C. 230) (commonly known as the
Communications Decency Act) (referred to in this section as
Section 230) is to provide a specific protection for online platforms acting as Good Samaritans to stop online abuse. Specifically, Section 230 states that providers of interactive computer services will not be treated as publishers or speakers of user-generated content. In turn, the provision entrusted providers to act as Good Samaritans to police their platforms by blocking and screening offensive content.
Section 230 bars actions that hold providers liable as publishers of third-party content, but the statute is irrelevant to claims unrelated to such publications. If a claim does not treat the defendant as a publisher, Section 230 should not apply.
However, courts have interpreted Section 230 as providing sweeping immunity for a broad array of providers, including providers alleged to have facilitated violations of criminal laws online. This interpretation is overly broad and discourages the self-policing that Section 230 intended to incentivize.
In Daniel v. Armslist, the Wisconsin Supreme Court read Section 230 to bar claims against an online firearms marketplace. The court’s decision swept so broadly as to cover websites designed to encourage and facilitate firearms trafficking in violation of chapter 44 of title 18, United States Code.
Online firearms marketplaces have made it increasingly easy for people who are prohibited from gun ownership to purchase guns online. Online firearms marketplaces facilitate such sales because while Federal law requires licensed gun dealers to perform background checks on prospective buyers, it does not require unlicensed sellers to do so. For more than a decade, online firearms marketplaces have exploited this legal loophole by allowing unlicensed sellers to sell guns directly to people prohibited from gun ownership.
Every year, unlicensed sellers post more than 1,000,000 advertisements on online firearms marketplaces in States that do not legally require a background check. Individuals with criminal histories and other prohibited purchasers rely on these postings to evade basic background check laws and procure firearms. One study found that nearly 1 in 9 prospective gun buyers who respond to advertisements from unlicensed sellers on a major online firearms marketplace would not pass a background check, which is a rate that is 7 times higher than the denial rate in contexts where background checks are required.
Congress did not intend for Section 230 to bar otherwise valid claims against online firearms marketplaces for their own design of a website that encourages and contributes to its users circumventing Federal laws, including Federal gun laws.
Protection of victims of gun violence
Section 230 of the Communications Act of 1934 (47 U.S.C. 230) is amended—
in subsection (c)—
in paragraph (1), by striking
No provider and inserting
Except as provided in paragraph (3), no provider; and
by adding at the end the following:
Treatment of publisher or speaker does not apply to online firearms marketplace
Paragraph (1) shall not apply to an online firearms marketplace, for purposes of any claim in an action brought against the online firearms marketplace in its capacity as an online firearms marketplace.
in subsection (f), by adding at the end the following:
Online firearms marketplace
The term online firearms marketplace means an interactive computer service that—
facilitates transactions related to firearms, firearms accessories, firearms equipment, and other firearms-related materials;
advertises or makes available any posting or listing of any statement by a transferor or by a transferee that could be reasonable inferred to propose the transfer of a firearm; or
makes digital instructions in the form of Computer Aided Design files or other code that can automatically program a 3-dimensional printer or similar device to produce a firearm or complete a firearm from an unfinished frame or receiver,
The term firearm has the meaning given the term in section 921(a) of title 18, United States Code.