[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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