[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8975 Introduced in House (IH)]

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116th CONGRESS
  2d Session
                                H. R. 8975

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 HOUSE OF REPRESENTATIVES

                           December 16, 2020

 Ms. Blunt Rochester introduced the following bill; which was referred 
                to the Committee on Energy and Commerce

_______________________________________________________________________

                                 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 the following definition apply:
            (1) Behavioral or psychological experiment, research, or 
        study.--The term ``behavioral or psychological experiment, 
        research, or study'' 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 that 
        serves to protect the welfare, rights, and privacy of users and 
        is formally designated by a large online operator to review, 
        approve the initiation of, and conduct periodic review of, any 
        behavioral or psychological experiment, research, or study, 
        conducted by such an operator or by any entity directed by such 
        an operator to conduct such behavioral or psychological 
        experiment, research, or study, involving human subjects.
            (5) Informed consent.--The term ``informed consent''--
                    (A) means the express, affirmative consent freely 
                given by a user immediately prior to any user data 
                being collected from such user for any behavioral or 
                psychological experiment, research, or study, where 
                such user is provided adequate and understandable 
                information--
                            (i) to allow for an informed decision about 
                        voluntary participation in such a behavioral or 
                        psychological experiment, research, or study; 
                        and
                            (ii) to ensure the understanding of such 
                        user of the information and any associated 
                        benefits, risks, or consequences of 
                        participation prior to obtaining the voluntary 
                        agreement to participate by the user; and
                    (B) does not include--
                            (i) the consent of an individual under the 
                        age of 18;
                            (ii) language that limits or purports to 
                        limit the liability of a large online operator; 
                        or
                            (iii) 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 interactive computer service, other than an internet 
        access service, that is made available to the public over the 
        internet and enables users to generate content that can be 
        viewed by other users of the service or that connects users for 
        the purpose of such users engaging in dialogue, sharing 
        information, or otherwise interacting.
            (8) Parental consent.--The term ``parental consent'' means 
        the verifiable consent of a parent or guardian for a child 
        under the age of 18 who uses an online service.
            (9) User.--The term ``user'' means any individual who uses 
        an online service.
            (10) 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. Such term includes any 
        such information purchased or otherwise obtained from third 
        parties.
            (11) User interface.--The term ``user interface'' refers to 
        any content accessible to a user of an online service or means 
        by which a user interacts with such online service or engages 
        with other users of an online service.
            (12) Verifiable consent.--The term ``verifiable consent'' 
        means the express, affirmative consent freely given by a user 
        to be subjected to the intended effect or effects of a user 
        interface for an online service that is--
                    (A) specific, informed, and unambiguous; and
                    (B) given without the exchange of any financial or 
                other incentives for such consent.

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 of an online service 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 conduct a behavioral or psychological 
                experiment, research, or study of users of an online 
                service, except with the informed consent of each user 
                involved;
                    (C) to design, modify, or manipulate a user 
                interface of an online service with the purpose or 
                substantial effect of cultivating compulsive usage, 
                including video auto-play functions initiated without 
                verifiable consent of a user; or
                    (D) to design, modify, or manipulate a user 
                interface on an online service, or portion thereof, 
                that is directed to an individual under the age of 18, 
                with the purpose or substantial effect of increasing 
                usage of an online service through which a user 
                interacts with other users without parental consent.
    (b) Duties of Large Online Operators.--Any large online operator 
that engages in any form of behavioral or psychological experiment, 
research, or study based on the activity or data of its users shall--
            (1) disclose, on a routine basis, but not less than once 
        each 90 days, the general purpose of any such behavioral or 
        psychological experiment, research, or study to each user whose 
        user data is or was during the previous 90-day period subject 
        to or included in any such behavioral or psychological 
        experiment, research, or study;
            (2) state on its online platform and readily accessible to 
        a user through its user interface, any behavioral or 
        psychological experiment, research, or study whose purpose is 
        to increase user engagement with the online service or to 
        encourage users to take any action to convert such users into 
        purchasers of any additional product or service offered by such 
        online service;
            (3) present the disclosures described 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) discontinue any behavioral or psychological experiment, 
        research, or study, if informed consent or parental consent was 
        determined by such large online operator to be inappropriately 
        acquired, or has reason to believe that such consent was 
        inappropriately acquired, and cannot obtain such consent within 
        48 hours of such determination, for the processing of user data 
        for behavioral or psychological experiment, research, or study;
            (5) 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, 
        research, or studies; and
            (6) ensure that such independent review board established 
        under paragraph (5) 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) Registration.--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) Determination by the commission.--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 for behavioral 
                or psychological experiments, research, or studies or 
                the designs of a user interfaces 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 or 
                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.--Any association 
        registered under paragraph (1) 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 the duties of a large online operator described 
        under subsection (b).
    (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) Regulations.--Not later than one year after the date of 
        enactment of this Act, the Commission shall prescribe 
        regulations under section 553 of title 5, United States Code, 
        that--
                    (A) establish rules and procedures for obtaining 
                the informed consent, verifiable consent, or parental 
                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 each professional 
                standards body that registers 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 users or increasing the usage of 
                an online service by a child without parental consent, 
                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.
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