[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1084 Introduced in Senate (IS)]
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116th CONGRESS
1st Session
S. 1084
To prohibit the usage of exploitative and deceptive practices by large
online operators and to promote consumer welfare in the use of
behavioral research by such providers.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 9, 2019
Mr. Warner (for himself and Mrs. Fischer) introduced the following
bill; which was read twice and referred to the Committee on Commerce,
Science, and Transportation
_______________________________________________________________________
A BILL
To prohibit the usage of exploitative and deceptive practices by large
online operators and to promote consumer welfare in the use of
behavioral research by such providers.
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 ``Deceptive Experiences To Online
Users Reduction Act'' or the ``DETOUR Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Behavioral or psychological experiments or research.--
The term ``behavioral or psychological experiments or
research'' means the study, including through human
experimentation, of overt or observable actions and mental
phenomena inferred from behavior, including interactions
between and among individuals and the activities of social
groups.
(2) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(3) Compulsive usage.--The term ``compulsive usage'' means
any response stimulated by external factors that causes an
individual to engage in repetitive, purposeful, and intentional
behavior causing psychological distress, loss of control,
anxiety, depression, or harmful stress responses.
(4) Independent review board.--The term ``independent
review board'' means a board, committee, or other group
formally designated by a large online operator to review, to
approve the initiation of, and to conduct periodic review of,
any research by, or at the direction or discretion of a large
online operator, involving human subjects.
(5) Informed consent.--The term ``informed consent''--
(A) means a process by which a research subject is
provided adequate information prior to being included
in any experiment or study to allow for an informed
decision about voluntary participation in a behavioral
or psychological research experiment or study, while
ensuring the understanding of the potential participant
of the furnished information and any associated
benefits, risks, or consequences of participation prior
to obtaining the voluntary agreement to participate by
the participant; and
(B) does not include--
(i) the consent of an individual under the
age of 13; or
(ii) the consent to a provision contained
in a general contract or service agreement.
(6) Large online operator.--The term ``large online
operator'' means any person that--
(A) provides an online service;
(B) has more than 100,000,000 authenticated users
of an online service in any 30-day period; and
(C) is subject to the jurisdiction of the
Commission under the Federal Trade Commission Act (15
U.S.C. 41 et seq.).
(7) Online service.--The term ``online service'' means a
website or a service, other than an internet access service,
that is made available to the public over the internet,
including a social network, a search engine, or email service.
(8) User data.--The term ``user data'' means any
information relating to an identified or identifiable
individual user, whether directly submitted to the large online
operator by the user, or derived from the observed activity of
the user by the large online operator.
SEC. 3. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RELATING TO THE
MANIPULATION OF USER INTERFACES.
(a) Conduct Prohibited.--
(1) In general.--It shall be unlawful for any large online
operator--
(A) to design, modify, or manipulate a user
interface with the purpose or substantial effect of
obscuring, subverting, or impairing user autonomy,
decision-making, or choice to obtain consent or user
data;
(B) to subdivide or segment consumers of online
services into groups for the purposes of behavioral or
psychological experiments or studies, except with the
informed consent of each user involved; or
(C) to design, modify, or manipulate a user
interface on a website or online service, or portion
thereof, that is directed to an individual under the
age of 13, with the purpose or substantial effect of
cultivating compulsive usage, including video auto-play
functions initiated without the consent of a user.
(b) Duties of Large Online Operators.--Any large online operator
that engages in any form of behavioral or psychological research based
on the activity or data of its users shall--
(1) disclose to its users on a routine basis, but not less
than once each 90 days, any experiments or studies that user
was subjected to or enrolled in with the purpose of promoting
engagement or product conversion;
(2) disclose to the public on a routine basis, but not less
than once each 90 days, any experiments or studies with the
purposes of promoting engagement or product conversion being
currently undertaken, or concluded since the prior disclosure;
(3) shall present the disclosures in paragraphs (1) and (2)
in a manner that--
(A) is clear, conspicuous, context-appropriate, and
easily accessible; and
(B) is not deceptively obscured;
(4) establish an Independent Review Board for any
behavioral or psychological research, of any purpose, conducted
on users or on the basis of user activity or data, which shall
review and have authority to approve, require modification in,
or disapprove all behavioral or psychological experiments or
research; and
(5) ensure that any Independent Review Board established
under paragraph (4) shall register with the Commission,
including providing to the Commission--
(A) the names and resumes of every board member;
(B) the composition and reporting structure of the
Board to the management of the operator;
(C) the process by which the Board is to be
notified of proposed studies or modifications along
with the processes by which the board is capable of
vetoing or amending such proposals;
(D) any compensation provided to board members; and
(E) any conflict of interest that might exist
concerning a board member's participation in the Board.
(c) Registered Professional Standards Body.--
(1) In general.--An association of large online operators
may register as a professional standards body by filing with
the Commission an application for registration in such form as
the Commission, by rule, may prescribe containing the rules of
the association and such other information and documents as the
Commission, by rule, may prescribe as necessary or appropriate
in the public interest or for protecting the welfare of users
of large online operators.
(2) Professional standards body.--An association of large
online operators may not register as a professional standards
body unless the Commission determines that--
(A) the association is so organized and has the
capacity to enforce compliance by its members and
persons associated with its members, with the
provisions of this Act;
(B) the rules of the association provide that any
large online operator may become a member of such
association;
(C) the rules of the association assure a fair
representation of its members in the selection of its
directors and administration of its affairs and provide
that one or more directors shall be representative of
users and not be associated with, or receive any direct
or indirect funding from, a member of the association
or any large online operator;
(D) the rules of the association are designed to
prevent exploitative and manipulative acts or
practices, to promote transparent and fair principles
of technology development and design, to promote
research in keeping with best practices of study design
and informed consent, and to continually evaluate
industry practices and issue binding guidance
consistent with the objectives of this Act;
(E) the rules of the association provide that its
members and persons associated with its members shall
be appropriately disciplined for violation of any
provision of this Act, the rules or regulations
thereunder, or the rules of the association, by
expulsion, suspension, limitation of activities,
functions, fine, censure, being suspended or barred
from being associated with a member, or any other
appropriate sanction; and
(F) the rules of the association are in accordance
with the provisions of this Act, and, in general,
provide a fair procedure for the disciplining of
members and persons associated with members, the denial
of membership to any person seeking membership therein,
the barring of any person from becoming associated with
a member thereof, and the prohibition or limitation by
the association of any person with respect to access to
services offered by the association or a member
thereof.
(3) Responsibilities and activities.--
(A) Bright-line rules.--An association shall
develop, on a continuing basis, guidance and bright-
line rules for the development and design of technology
products of large online operators consistent with
subparagraph (B).
(B) Safe harbors.--In formulating guidance under
subparagraph (A), the association shall define conduct
that does not have the purpose or substantial effect of
subverting or impairing user autonomy, decision-making,
or choice, or of cultivating compulsive usage for
children such as--
(i) de minimis user interface changes
derived from testing consumer preferences,
including different styles, layouts, or text,
where such changes are not done with the
purpose of obtaining user consent or user data;
(ii) algorithms or data outputs outside the
control of a large online operator or its
affiliates; and
(iii) establishing default settings that
provide enhanced privacy protection to users or
otherwise enhance their autonomy and decision-
making ability.
(d) Enforcement by the Commission.--
(1) Unfair or deceptive acts or practice.--A violation of
subsection (a) or (b) 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)).
(2) Determination.--For purposes of enforcement of this
Act, the Commission shall determine an act or practice is
unfair or deceptive if the act or practice--
(A) has the purpose, or substantial effect, of
subverting or impairing user autonomy, decision-making,
or choice to obtain consent or user data; or
(B) has the purpose, or substantial effect, of
cultivating compulsive usage by a child under 13.
(3) Regulations.--Not later than 1 year after the date of
enactment of this Act, the Commission shall promulgate
regulations under section 553 of title 5, United States Code,
that--
(A) establish rules and procedures for obtaining
the informed consent of users;
(B) establish rules for the registration,
formation, oversight, and management of the independent
review boards, including standards that ensure
effective independence of such entities from improper
or undue influence by a large online operator;
(C) establish rules for the registration,
formation, oversight, and management of professional
standards bodies, including procedures for the regular
oversight of such bodies and revocation of their
designation; and
(D) in consultation with a professional standards
body established under subsection (c), define conduct
that does not have the purpose or substantial effect of
subverting or impairing user autonomy, decision-making,
or choice, or of cultivating compulsive usage for
children such as--
(i) de minimis user interface changes
derived from testing consumer preferences,
including different styles, layouts, or text,
where such changes are not done with the
purpose of obtaining user consent or user data;
(ii) algorithms or data outputs outside the
control of a large online operator or its
affiliates; and
(iii) establishing default settings that
provide enhanced privacy protection to users or
otherwise enhance their autonomy and decision-
making ability.
(4) Safe harbor.--The Commission may not bring an
enforcement action under this Act against any large online
operator that relied in good faith on the guidance of a
professional standards body.
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