[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3849 Introduced in House (IH)]

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117th CONGRESS
  1st Session
                                H. R. 3849

  To promote competition, lower entry barriers, and reduce switching 
               costs for consumers and businesses online.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 11, 2021

 Ms. Scanlon (for herself, Mr. Owens, Mr. Cicilline, Mr. Buck, and Mr. 
   Nadler) introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To promote competition, lower entry barriers, and reduce switching 
               costs for consumers and businesses online.

    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 ``Augmenting Compatibility and 
Competition by Enabling Service Switching Act of 2021'' or the ``ACCESS 
Act of 2021''.

SEC. 2. UNFAIR METHOD OF COMPETITION.

    A violation of this Act, or standards issued pursuant to this Act, 
by a person, partnership, or corporation operating a covered platform, 
in or affecting commerce, shall be an unfair method of competition in 
violation of section 5(a)(1) of the Federal Trade Commission Act (15 
U.S.C. 45).

SEC. 3. PORTABILITY.

    (a) In General.--A covered platform shall maintain a set of 
transparent, third-party-accessible interfaces (including application 
programming interfaces) to enable the secure transfer of data to a 
user, or with the affirmative consent of a user, to a business user at 
the direction of a user, in a structured, commonly used, and machine-
readable format that complies with the standards issued pursuant to 
section 6(c).
    (b) Data Security.--
            (1) In general.--A competing business or a potential 
        competing business that receives ported user data from a 
        covered platform shall reasonably secure any user data it 
        acquires, and shall take reasonable steps to avoid introducing 
        security risks to data or the covered platform's information 
        systems.
            (2) Violation.--A failure to comply with this section is a 
        violation of this Act and subject to the enforcement under 
        sections 9 and 10 of this Act.
            (3) Termination of access.--The Commission may require the 
        covered platform to cease the transfer of data to a competing 
        or potentially competing business that the Commission finds has 
        violated this section or standards adopted by the Commission 
        under section 6(c) of this Act.
    (c) Portability Obligations.--In order to achieve portability under 
subsection (a), a covered platform shall comply with the standards 
issued under section 6(c) by the Commission.

SEC. 4. INTEROPERABILITY.

    (a) In General.--A covered platform shall maintain a set of 
transparent, third-party-accessible interfaces (including application 
programming interfaces) to facilitate and maintain interoperability 
with a competing business or a potential competing business that 
complies with the standards issued pursuant to section 6(c).
    (b) Data Security.--
            (1) In general.--A competing business or a potential 
        competing business that accesses an interoperability interface 
        of a covered platform shall reasonably secure any user data it 
        acquires, processes, or transmits, and shall take reasonable 
        steps to avoid introducing security risks to user data or the 
        covered platform's information systems.
            (2) Violation.--A failure to comply with this section is a 
        violation of this Act and subject to the enforcement under 
        sections 9 and 10 of this Act.
            (3) Termination of access.--The Commission may require the 
        covered platform to cease interoperating with a competing or 
        potentially competing business that the Commission finds has 
        violated this section or standards adopted by the Commission 
        under section 6(c) of this Act.
    (c) Interoperability Obligations.--In order to achieve 
interoperability under subsection (a), a covered platform shall comply 
with the standards issued under section 6(c) by the Commission.
    (d) Security and Privacy Standards.--Consistent with standards 
issued by the Commission under section 6(c) of this Act, a covered 
platform shall set privacy and security standards for access by 
competing businesses or potential competing businesses to the extent 
reasonably necessary to address a threat to the covered platform or 
user data, and shall report any suspected violations of those standards 
to the Commission.
    (e) Prohibited Changes to Interfaces.--
            (1) Commission approval.--A covered platform may make a 
        change that may affect its interoperability interface by 
        petitioning the Commission to approve a proposed change. The 
        Commission shall allow the change if, after consulting with the 
        relevant technical committee the Commission concludes that the 
        change is not being made with the purpose or effect of 
        unreasonably denying access or undermining interoperability for 
        competing businesses or potential competing businesses.
            (2) Exception.--A covered platform may make a change 
        affecting its interoperability interfaces without receiving 
        approval from the Commission if that change is necessary to 
        address a security vulnerability or other exigent circumstance 
        that creates an imminent risk to user privacy or security if 
        the change is narrowly tailored to the vulnerability and does 
        not have the purpose or effect of unreasonably denying access 
        or undermining interoperability for competing businesses or 
        potential competing businesses.
            (3) Interface information.--
                    (A) In general.--Not later than 120 days after the 
                adoption of a rule by the Commission under section 6(c) 
                of this Act, a covered platform shall provide to 
                competing businesses or potential competing businesses 
                complete and accurate documentation describing access 
                to the interoperability interface required under this 
                section.
                    (B) Contents.--The documentation required under 
                subparagraph (A) is limited to interface documentation 
                necessary to achieve development and operation of 
                interoperable products and services.
            (4) Notice of changes.--A covered platform shall provide 
        reasonable advance notice to a competing business or a 
        potential competing business, which may be provided through 
        public notice, of any change to an interoperability interface 
        maintained by the covered platform that will affect the 
        interoperability of a competing business or a potential 
        competing business.
    (f) Data Minimization.--
            (1) Non-commercialization by a covered platform.--A covered 
        platform shall not collect, use, or share user data obtained 
        from a business user through the interoperability interface 
        except for the purposes of safeguarding the privacy and 
        security of such information or maintaining interoperability of 
        services.
            (2) Non-commercialization of data on a covered platform.--A 
        business user shall not collect, use, or share the data of a 
        user on a covered platform except for the purposes of 
        safeguarding and security of such data or maintaining 
        interoperability of services.

SEC. 5. DEFINITIONS.

    In this Act:
            (1) Person.--The term ``person'' has the meaning given the 
        term in subsection (a) of section 1 of the Clayton Act (15 
        U.S.C. 12).
            (2) Affirmative express consent.--The term ``affirmative 
        express consent'' means an affirmative action of the consumer 
        to make a choice following a clear and conspicuous disclosure 
        to the consumer, separate and apart from any ``privacy 
        policy'', ``terms of service'', ``terms of service'', ``consent 
        for research'', or other similar document, of--
                    (A) the types of Personal Information that 
                Respondent will disclose to third parties;
                    (B) the reason for such disclosures;
                    (C) the identity of all such third parties;
                    (D) any opportunities consumers have to decline or 
                rescind consent for such disclosures; and
                    (E) how consumers may exercise any such 
                opportunities.
        An affirmative action does not include obtaining a consumer's 
        approval for a preselected default option.
            (3) Clear and conspicuous disclosure.--The term ``clear and 
        conspicuous disclosure'' means that a required disclosure is 
        difficult to miss such that it is easily noticeable and easily 
        understandable by ordinary consumers, including in all of the 
        following ways:
                    (A) In any communication that is solely visual or 
                solely audible, the disclosure must be made through the 
                same means through which the communication is 
                presented. In any communication made through both 
                visual and audible means, such as a television 
                advertisement, the disclosure must be presented 
                simultaneously in both the visual and audible portions 
                of the communication even if the representation 
                requiring the disclosure (``triggering 
                representation'') is made through only one means.
                    (B) A visual disclosure, by its size, contrast, 
                location, the length of time it appears, and other 
                characteristics, must stand out from any accompanying 
                text or other visual elements so that it is easily 
                noticed, read, and understood.
                    (C) An audible disclosure, including by telephone 
                or streaming video, must be delivered in a volume, 
                speed, and cadence sufficient for ordinary consumers to 
                easily hear and understand it.
                    (D) In any communication using an interactive 
                electronic medium, such as the Internet or software, 
                the disclosure must be unavoidable.
                    (E) The disclosure must use diction and syntax 
                understandable to ordinary consumers and must appear in 
                each language in which the triggering representation 
                appears.
                    (F) The disclosure must comply with these 
                requirements in each medium through which it is 
                received, including all electronic devices and face-to-
                face communications.
                    (G) The disclosure must not be contradicted or 
                mitigated by, or inconsistent with, anything else in 
                the communication.
                    (H) When the representation or sales practice 
                targets a specific audience, such as children, the 
                elderly, or the terminally ill, ``ordinary consumers'' 
                includes reasonable members of that group.
            (4) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (5) Control.--The term ``control'' with respect to a person 
        means--
                    (A) holding 25 percent or more of the stock of the 
                person;
                    (B) having the right to 25 percent or more of the 
                profits of the person;
                    (C) having the right to 25 percent or more of the 
                assets of the person, in the event of the person's 
                dissolution;
                    (D) if the person is a corporation, having the 
                power to designate 25 percent or more of the directors 
                of the person;
                    (E) if the person is a trust, having the power to 
                designate 25 percent or more of the trustees; or
                    (F) otherwise exercises substantial control over 
                the person.
            (6) Covered platform.--The term ``covered platform'' means 
        an online platform--
                    (A) that has been designated as a ``covered 
                platform'' under section 6(a); or
                    (B) that--
                            (i) at the time of the Commission's or the 
                        Department of Justice's designation under 
                        section 2(d), or any of the twelve months 
                        preceding that time, or in any of the 12 months 
                        preceding the filing of a complaint for an 
                        alleged violation of this Act--
                                    (I) has at least 50,000,000 United 
                                States-based monthly active users on 
                                the online platform; or
                                    (II) has at least 100,000 United 
                                States-based monthly active business 
                                users on the platform;
                            (ii) is owned or controlled by a person 
                        with net annual sales, or a market 
                        capitalization greater than $600,000,000,000, 
                        adjusted for inflation on the basis of the 
                        Consumer Price Index, at the time of the 
                        Commission's or the Department of Justice's 
                        designation under section 6(a) or any of the 
                        two years preceding that time, or at any time 
                        in the 2 years preceding the filing of a 
                        complaint for an alleged violation of this Act; 
                        and
                            (iii) is a critical trading partner for the 
                        sale or provision of any product or service 
                        offered on or directly related to the online 
                        platform.
            (7) Covered platform operator.--The term ``covered platform 
        operator'' means a person that, directly or indirectly, owns or 
        controls a covered platform.
            (8) Critical trading partner.--The term ``critical trading 
        partner'' means a trading partner that has the ability to 
        restrict or impede--
                    (A) the access of a business user to its users or 
                customers; or
                    (B) the access of a business user to a tool or 
                service that it needs to effectively serve its users or 
                customers.
            (9) Data.--
                    (A) In general.--Not later than 6 months after the 
                date of enactment of this Act, the Commission shall 
                adopt rules in accordance with section 553 of title 5, 
                United States Code, to define the term ``data'' for the 
                purpose of implementing and enforcing this Act.
                    (B) Data.--The term ``data'' shall include 
                information that is collected by or provided to a 
                covered platform or competing business or a potential 
                competing business that is linked, or reasonably 
                linkable, to a specific user, user device, or customer 
                of the covered platform or a competing business or a 
                potential competing business.
                    (C) Exclusion.--The term ``data'' shall not include 
                proprietary data that does not pertain to the user or a 
                user device of the covered platform. The Commission 
                shall narrowly construe the term ``proprietary data'' 
                for the purposes of this Act.
            (10) Business user.--The term ``business user'' means a 
        person that utilizes or plans to utilize the covered platform 
        for the sale or provision of products or services.
            (11) Interoperability interface.--The term 
        ``interoperability interface'' means an electronic interface 
        maintained by a covered platform for purposes of achieving 
        interoperability.
            (12) Online platform.--The term ``online platform'' means a 
        website, online or mobile application, operating system, 
        digital assistant, or online service that--
                    (A) enables a user to generate content that can be 
                viewed by other users on the platform or to interact 
                with other content on the platform;
                    (B) facilitates the offering, sale, purchase, 
                payment, or shipping of goods or services, including 
                software applications, between and among consumers or 
                businesses not controlled by the platform; or
                    (C) enables user searches or queries that access or 
                display a large volume of information.

SEC. 6. IMPLEMENTATION.

    (a) Covered Platform Designation.--The Federal Trade Commission or 
Department of Justice may designate a covered platform for the purpose 
of implementing and enforcing this Act. Such designation shall--
            (1) be based on a finding that the criteria set forth in 
        paragraph (6) of section 5 are met;
            (2) be issued in writing and published in the Federal 
        Register; and
            (3) will apply for 10 years from its issuance regardless of 
        whether there is a change in control or ownership over the 
        covered platform unless the Federal Trade Commission or the 
        Department of Justice removes the designation pursuant to 
        subsection (b).
    (b) Removal of Covered Platform Designation.--The Commission or the 
Department of Justice shall--
            (1) consider whether its designation of a covered platform 
        pursuant to subsection (a) should be removed prior to the 
        expiration of the 10-year period if the covered platform 
        operator files a request with the Commission or the Department 
        of Justice, which shows that the online platform is no longer a 
        critical trading partner; and
            (2) determine whether to grant a request submitted under 
        paragraph (1) not later than 120 days after the date of the 
        filing of such request.
    (c) Rulemaking and Technical Standards.--
            (1) After designating an online platform as a covered 
        platform, the Commission shall issue standards of 
        interoperability specific to the covered platform. These 
        standards shall implement the requirements of sections 3 and 4 
        of this Act. In adopting the standards implementing the 
        requirements of sections 3 and 4, the Commission shall seek to 
        encourage entry by reducing or eliminating the network effects 
        that limit competition with the covered platform, ensure that 
        competing businesses or a potential competing business 
        interconnects with the covered platform on fair and 
        nondiscriminatory terms, and protect data security and privacy.
            (2) The Commission shall--
                    (A) establish a technical committee, as described 
                in section 7 of this Act, to develop proposed standards 
                implementing the requirements of section 3 as they 
                apply to a specific covered platform;
                    (B) issue such standards in accordance with section 
                553 of title 5, United States Code; and
                    (C) reject standards that have the purpose or 
                effect of unreasonably denying access, undermine 
                interoperability, or are unduly disruptive to 
                interoperability.
    (d) Compliance Assessment.--The Commission shall regularly assess 
compliance by covered platforms with the provisions of this Act and 
may--
            (1) undertake such investigation as appropriate to render 
        this assessment;
            (2) issue subpoenas and civil investigative demands for 
        relevant information, including any information that is 
        necessary to effectuate the goals of sections 3 and 4 this Act, 
        and consult with other agencies as appropriate; and
            (3) prescribe such other rules in accordance with section 
        553 of title 5, United States Code as may be necessary and 
        appropriate to carry out sections 3 and 4 of this Act.
    (e) Agency Complaints.--The Commission shall establish procedures 
under which a user, covered platform, or a business user may file a 
complaint alleging a violation of this Act.
    (f) Reciprocity.--A business user shall not be under any obligation 
to adopt or comply with the requirements of this Act or the rules 
adopted by the Commission under this Act unless it chooses to--
            (1) initiate the secure transfer of data from a covered 
        platform under section 3 of this Act; or
            (2) access an interoperability interface of a covered 
        platform under section 4 of this Act.

SEC. 7. TECHNICAL COMMITTEE.

    (a) Establishment.--
            (1) Not later than 180 days following the enactment of this 
        Act, the Commission shall establish a technical committee to 
        assist the Commission with considerations relating to 
        implementation and technical aspects of the requirements under 
        sections 3 and 4 of this Act.
            (2) The size of the committee and its membership is within 
        the sole discretion of the Commission except as specified in 
        subsection 7(b).
    (b) Composition.--Each technical committee shall include--
            (1) representatives of businesses that, in the judgement of 
        the Commission, utilize or compete with the platform;
            (2) representatives of competition or privacy advocacy 
        organizations, and independent academics that possess 
        technical, legal, economic, financial, or other knowledge that 
        the Commission may deem useful;
            (3) a representative from the National Institute of 
        Standards and Technology; and
            (4) representatives of a covered platform, which, if 
        required by Commission, shall provide a nonvoting advisory 
        member to provide consultation and other aid to the technical 
        committee. A failure by the covered platform to participate in 
        good faith in the development of standards by the Technical 
        Committee shall be a violation of this statute.
    (c) General Responsibilities.--Each technical committee established 
under this section shall meet regularly to provide information, 
analysis, and recommendations to the Commission on the standards of 
portability and interoperability and any changes to those standards. 
These standards should--
            (1) seek to reduce or eliminate network effects that limit 
        competition with the covered platform;
            (2) establish data security and privacy protections for 
        data portability and interoperability;
            (3) prevent fraudulent, malicious, or abusive activity by a 
        competing business or a potential competing business; and
            (4) establish reasonable thresholds related to the 
        frequency, nature, and volume of requests by a competing 
        business or a potential competing business to access resources 
        maintained by the covered platform, beyond which the covered 
        platform may assess a reasonable fee for such access that shall 
        be reasonably proportional to the cost, complexity, and risk to 
        the covered platform of providing such access, and do not limit 
        the ability or deter the incentive of a competing business or a 
        potentially competing business to interoperate with the covered 
        platform.
    (d) Role.--The role of technical committees is advisory in nature, 
and such committees shall have no implementation or enforcement 
authority. However, the Commission shall give strong consideration to 
the recommendations of such committees in implementing this Act.
    (e) Nonapplicability of the Federal Advisory Committee Act.--The 
Federal Advisory Committee Act (5 U.S.C. App.) shall not apply with 
respect to the technical committees.

SEC. 8. JUDICIAL REVIEW.

    (a) In General.--Any party that is subject to a covered platform 
designation pursuant to section 6(a) of this Act, a final order issued 
in any district court, or a final order of the Commission issued in an 
administrative adjudicative proceeding may within 30 days of the 
issuance of such order, petition for review of such order in the United 
States Court of Appeals for the District of Columbia Circuit.
    (b) Treatment of Findings.--In a proceeding for judicial review of 
a covered platform designation pursuant to section 6(a) of this Act or 
a final order of the Commission, the findings of the Commission as to 
the facts, if supported by evidence, shall be conclusive.

SEC. 9. ENFORCEMENT.

    (a) Commission Litigation Authority.--If the Commission has reason 
to believe that a covered platform violated this Act, the Commission 
may commence a civil action, in its own name by any of its attorneys 
designated by it for such purpose, to recover a civil penalty under 
this Act and seek other appropriate relief in a district court of the 
United States against the covered platform operator.
    (b) Emergency Relief.--
            (1) The Commission may seek a temporary injunction 
        requiring the covered platform operator to take or stop taking 
        any action for not more than 120 days and the court shall grant 
        such relief if the Commission proves--
                    (A) there is a plausible claim that a covered 
                platform operator took an action that could violate 
                this Act; and
                    (B) that action impairs the ability of at least one 
                company to compete with the covered platform.
            (2) The emergency relief shall not last more than 120 days 
        from the filing of the complaint.
            (3) The court shall terminate the emergency relief at any 
        time that the covered platform operator proves that the 
        Commission has not taken reasonable steps to investigate 
        whether a violation has occurred.
            (4) Nothing in this subsection prevents or limits the 
        Commission from seeking other equitable relief as provided in 
        section 10 of this Act.
    (c) Statute of Limitations.--A proceeding for a violation of this 
Act may be commenced not later than 6 years after such violation 
occurs.

SEC. 10. REMEDIES.

    (a) Civil Penalty.--The Commission may recover a civil penalty for 
a violation of this Act, which shall accrue to the United States, in an 
amount not more than the greater of--
            (1) 15 percent of the total United States revenue of the 
        person, partnership, or corporation for the previous calendar 
        year; or
            (2) 30 percent of the United States revenue of the person, 
        partnership, or corporation in any line of business affected or 
        targeted by the unlawful conduct during the period of the 
        unlawful conduct.
    (b) Remedies in Addition.--Remedies provided in this subsection are 
in addition to, and not in lieu of, any other remedy available to the 
Commission under Federal law.
            (1) Restitution; contract rescission and reformation; 
        refunds; return of property.--The Commission may seek, and a 
        court may order, with respect to the violation that gives rise 
        to the suit, restitution for losses, rescission or reformation 
        of contracts, refund of money, or return of property.
            (2) Disgorgement.--The Commission may seek, and a court may 
        order, disgorgement of any unjust enrichment that a covered 
        platform obtained as a result of the violation that gives rise 
        to the suit.
            (3) Injunction.--The Commission may seek, and the court may 
        order, relief in equity as necessary to prevent, restrain, or 
        prohibit violations of this Act.
    (c) Repeat Offenders.--If the fact finder determines that a covered 
platform has shown a pattern or practice of violating this Act, the 
court shall consider requiring that the Chief Executive Officer forfeit 
to the United States Treasury any compensation received by that person 
during the 12 months preceding or following the filing of a complaint 
alleging a violation of this Act.

SEC. 11. RULE OF CONSTRUCTION.

    Nothing in this Act shall be construed to limit any authority of 
the Attorney General or the Federal Trade Commission under the 
antitrust laws, section 5 of the Federal Trade Commission Act (15 
U.S.C. 45), or any other provision of law or to limit the application 
of any law.

SEC. 12. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act 
and of the amendments made by this Act, and the application of the 
remaining provisions of this Act and amendments to any person or 
circumstance shall not be affected.
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