[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2031 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 2031

  To preserve access to lawful content and prevent discrimination and 
 unfair methods of competition on the internet, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 10, 2021

  Mr. Wicker introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
  To preserve access to lawful content and prevent discrimination and 
 unfair methods of competition on the internet, and for other purposes.

    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 ``Promoting Rights and Online Speech 
Protections to Ensure Every Consumer is Heard Act'' or the ``PRO-SPEECH 
Act''.

SEC. 2. PRESERVING ACCESS TO LAWFUL CONTENT.

    (a) In General.--Subject to subsection (b), an internet platform 
may not engage in a practice that does any of the following:
            (1) Blocks or otherwise prevents a user or entity from 
        accessing any lawful content, application, service, or device 
        that does not interfere with the internet platform's 
        functionality or pose a data privacy or data security risk to a 
        user.
            (2) Degrades or impairs the access of a user or entity to 
        lawful internet traffic on the basis of content, application, 
        service, or use of a device that does not interfere with the 
        internet platform's functionality or pose a data privacy or 
        data security risk to a user.
    (b) Exceptions.--
            (1) Small internet platforms.--The prohibitions under 
        subsection (a) shall not apply to a small internet platform 
        unless--
                    (A) the Commission determines that the benefits of 
                expanding the application of such prohibitions to 1 or 
                more small internet platforms outweigh the costs; and
                    (B) the Director of the Office of Management and 
                Budget approves such cost-benefit analysis and 
                publishes such approval in the Federal Register.
            (2) Publishers of content, applications, and services.--The 
        prohibitions under subsection (a) shall not apply to the extent 
        that an internet platform publicly proclaims to be a publisher, 
        insofar as the internet platform is acting as a publisher, of 
        any particular content, application, or service.

SEC. 3. NONDISCRIMINATION.

    An internet platform may not take any action against a user or 
entity based on racial, sexual, religious, political affiliation, or 
ethnic grounds.

SEC. 4. PROHIBITIONS ON UNFAIR METHODS OF COMPETITION.

    (a) In General.--An internet platform may not engage in an unfair 
method of competition against any other internet platform (as 
determined by the Commission under the Federal Trade Commission Act (15 
U.S.C. 41 et seq.)).
    (b) Presumed Unfair Methods of Competition.--For purposes of 
subsection (a), the following actions shall be presumed to be an unfair 
method of competition:
            (1) Blocking or prohibiting use.--Any action taken by a 
        large internet platform that wholly blocks or prohibits an 
        internet platform that competes with the large internet 
        platform (or any affiliate of the large internet platform) from 
        making use of the large internet platform.
            (2) Unreasonable discrimination.--Any action taken by a 
        large internet platform that unreasonably discriminates against 
        an internet platform that competes with the large internet 
        platform (or any affiliate of the large internet platform).
    (c) Determination of Unfair Methods of Competition.--The Commission 
may determine that an action taken by a large internet platform is 
presumed to be an unfair method of competition if--
            (1) the Commission establishes that--
                    (A) such action by a large internet platform--
                            (i) is anti-competitive and likely to 
                        reduce competition, reduce quality of service, 
                        or decrease innovation; and
                            (ii) is not likely to be remedied without 
                        government intervention; and
                    (B) the benefits of such a determination outweigh 
                the costs; and
            (2) the Director of the Office of Management and Budget 
        approves such cost-benefit analysis and publishes such approval 
        in the Federal Register.

SEC. 5. TRANSPARENCY.

    (a) Required Disclosures.--
            (1) In general.--Subject to subsection (b), an internet 
        platform shall disclose, on a publicly available and easily 
        accessible website, accurate information regarding the platform 
        management practices, performance characteristics, and 
        commercial terms of service of its app store, cloud computing 
        service, operating system, search engine, or social media 
        network sufficient to enable a reasonable user to make an 
        informed choice regarding the purchase or use of such service 
        and to develop, market, and maintain a product or service on 
        the internet platform.
            (2) Required information.--The information to be disclosed 
        pursuant to paragraph (1) shall include the following:
                    (A) Platform management practices.--Information 
                regarding the platform management practices of an 
                internet platform shall include the following:
                            (i) General practices.--A description of 
                        any content management or data management 
                        practices.
                            (ii) App store, operating system, search 
                        engine, or social media network.--With respect 
                        to an app store, operating system, search 
                        engine, or social media network, a description 
                        of any practice--
                                    (I) regarding how the internet 
                                platform--
                                            (aa) curates and targets 
                                        content to users;
                                            (bb) promotes content, 
                                        services, or products, 
                                        including its own content, 
                                        services, or products;
                                            (cc) moderates content; or
                                            (dd) determines whether to 
                                        demonetize a user's use of the 
                                        internet platform by any means; 
                                        or
                                    (II) that directly or indirectly 
                                favors certain data or content over 
                                other data or content, including 
                                through use of techniques such as 
                                content placement or prioritization--
                                            (aa) to benefit an 
                                        affiliate; or
                                            (bb) in exchange for 
                                        consideration, monetary or 
                                        otherwise.
                            (iii) Cloud computing service.--With 
                        respect to a cloud computing service, a 
                        description of any practice--
                                    (I) regarding congestion 
                                management, application-specific 
                                behavior, device attachment, or data 
                                privacy and data security; or
                                    (II) that determines whether--
                                            (aa) any content, 
                                        application, or service is 
                                        lawful; and
                                            (bb) a device interferes 
                                        with the cloud computing 
                                        service's functionality or 
                                        poses an unreasonable data 
                                        privacy or data security risk 
                                        to a user.
                            (iv) Publishers.--
                                    (I) Internet platforms.--With 
                                respect to an internet platform that 
                                publicly proclaims to be a publisher, a 
                                description of any practice that blocks 
                                or otherwise prevents a user or entity 
                                from accessing any lawful content, 
                                application, service, or device that 
                                does not interfere with the internet 
                                platform's functionality or pose a risk 
                                of data privacy or data security to a 
                                user.
                                    (II) Affiliates.--With respect to 
                                an internet platform that publicly 
                                proclaims to be a publisher and is an 
                                affiliate of a cloud computing service 
                                or operating system, a description of 
                                any practice that degrades or impairs a 
                                user or entity's access to lawful 
                                internet traffic on the basis of 
                                content, application, service, or use 
                                of a device that does not interfere 
                                with the internet platform's 
                                functionality or pose a risk to the 
                                data privacy or data security of a 
                                user.
                    (B) Performance characteristics.--Information 
                regarding the performance characteristics of an 
                internet platform shall include the following:
                            (i) General characteristics.--A general 
                        description of the service, including the 
                        service technology.
                            (ii) Cloud computing service.--With respect 
                        to a cloud computing service, a description 
                        of--
                                    (I) the expected and actual access 
                                speed and latency; and
                                    (II) the capability of the service 
                                to support real-time applications.
                            (iii) Service with required approval.--With 
                        respect to an app store, cloud computing 
                        service, or operating system that requires 
                        approval before allowing an application to use 
                        the internet platform--
                                    (I) the average time for a 
                                developer to receive such approval 
                                after initial submission; and
                                    (II) the timeline for the internet 
                                platform to resolve complaints and the 
                                outcome of any such resolution.
                    (C) Commercial terms.--Information regarding the 
                commercial terms of an internet platform shall include 
                a description of the fee disclosures, privacy 
                practices, and redress options for users, including the 
                following:
                            (i) Usage-based fees.--With respect to a 
                        cloud computing service, any usage-based fees 
                        or fees for early termination or additional 
                        network services.
                            (ii) Approval fees.--With respect to an app 
                        store, cloud computing service, or operating 
                        system that requires approval before allowing 
                        an application to use the internet platform, 
                        any fees charged to those seeking such 
                        approval.
                            (iii) Third-party fees.--With respect to an 
                        app store, cloud computing service, or 
                        operating system, any fees charged to or by 
                        third parties associated with a user's decision 
                        to purchase an application or other content 
                        that uses such internet platform.
                            (iv) Prioritization fees.--With respect to 
                        an app store, operating system, search engine, 
                        or social media network, any fees charged for 
                        the placement or prioritization of any content 
                        or application.
                            (v) Privacy practices.--A description of 
                        any data privacy practice that entails the 
                        inspection of user-generated content or other 
                        internet platform information and whether such 
                        content or information is stored, provided to 
                        third parties, or used for non-platform 
                        management purposes.
                            (vi) Complaint resolution practices.--A 
                        description of any practice for resolving the 
                        complaint or question of a user.
    (b) Applicability to Small Internet Platforms.--The requirements 
under subsection (a) shall not apply to a small internet platform 
unless--
            (1) the Commission determines that the benefits of 
        expanding the application of such requirements to 1 or more 
        small internet platforms outweigh the costs; and
            (2) the Director of the Office of Management and Budget 
        approves such cost-benefit analysis and publishes such approval 
        in the Federal Register.

SEC. 6. ENFORCEMENT.

    (a) Enforcement Authority.--
            (1) Unfair and deceptive acts or practice.--A violation of 
        section 2, 3, or 5 shall be treated as an unfair and deceptive 
        act or practice proscribed under section 5(a) of the Federal 
        Trade Commission Act (15 U.S.C. 45(a)).
            (2) Unfair methods of competition.--Any person who violates 
        section 4 shall be liable for engaging in an unfair method of 
        competition under section 5(a) of the Federal Trade Commission 
        Act (15 U.S.C. 45(a)).
    (b) Powers of the Commission.--
            (1) In general.--Notwithstanding any other provision of 
        law, the Commission shall enforce this Act in the same manner, 
        by the same means, and with the same jurisdiction, powers, and 
        duties as though all applicable terms and provisions of the 
        Federal Trade Commission Act (15 U.S.C. 41 et seq.) were 
        incorporated into and made a part of this Act.
            (2) Privileges and immunities.--Notwithstanding any other 
        provision of law, any person who violates this Act shall be 
        subject to the penalties and entitled to the privileges and 
        immunities provided in the Federal Trade Commission Act (15 
        U.S.C. 41 et seq.).
            (3) Authority preserved.--Nothing in this Act shall be 
        construed to limit the authority of the Commission under any 
        other provision of law.
    (c) Complaints to the Commission.--
            (1) In general.--Any individual alleging a violation of 
        this Act may submit to the Commission a complaint which briefly 
        states the facts surrounding such violation.
            (2) Notice to internet platform.--Upon receiving a 
        complaint described in paragraph (1), the Commission shall 
        forward a statement of the complaint to the internet platform 
        that is the subject of the alleged violation.
            (3) Requirement to address complaint.--Upon receiving a 
        forwarded complaint under paragraph (2), the internet platform 
        shall, within a reasonable time (as specified by the 
        Commission), either--
                    (A) make a reparation for any injury alleged to 
                have been caused in the complaint filed under paragraph 
                (1) and notify the Commission of such reparation; or
                    (B) submit to the Commission a written response to 
                the complaint.
            (4) Reparation.--If the internet platform makes a 
        reparation under paragraph (3)(A) to the satisfaction of the 
        Commission, the Commission shall relieve the internet platform 
        of liability to the complainant for the particular violation of 
        law thus complained of.
            (5) Investigation.--
                    (A) In general.--If the internet platform does not 
                make a sufficient reparation under paragraph (3)(A), or 
                if there appears to be any reasonable ground for 
                investigating such complaint, the Commission shall 
                investigate the matters complained of in such manner 
                and by such means as it shall deem proper.
                    (B) Direct damage.--No complaint shall at any time 
                be dismissed because of the absence of direct damage to 
                the complainant.
                    (C) Investigation conclusion.--With respect to any 
                investigation conducted pursuant to subparagraph (A), 
                the Commission shall issue an order concluding such 
                investigation not more than 5 months after the date on 
                which the complaint was filed.

SEC. 7. RELATIONSHIP BETWEEN FEDERAL AND STATE LAW.

    No State or political subdivision of a State may adopt, maintain, 
enforce, or continue in effect any law, regulation, rule, requirement, 
or standard that conflicts with the requirements of this Act.

SEC. 8. DEFINITIONS.

    In this Act:
            (1) Affiliate.--The term ``affiliate'' means a person that 
        directly or indirectly owns or controls, is owned or controlled 
        by, or is under common ownership or control with, another 
        person.
            (2) App store.--The term ``app store'' means a digital 
        distribution platform for computer applications that includes 
        at least 1 application from a person unaffiliated with the 
        operator of the digital distribution platform.
            (3) Cloud computing service.--The term ``cloud computing 
        service'' means a service offering on-demand network access to 
        a shared pool of configurable computing resources (such as any 
        network, server, storage, application, or service) that 
        generally can be provisioned with minimal management effort or 
        service provider interaction.
            (4) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (5) Internet platform.--The term ``internet platform'' 
        means an entity that owns or operates, either directly or 
        through an affiliate, an app store, a cloud computing service, 
        an operating system, a search engine, or a social media 
        network.
            (6) Large internet platform.--The term ``large internet 
        platform'' means an internet platform with equal to or more 
        than--
                    (A) 100,000,000 global active users; or
                    (B) $500,000,000 in annual revenues, including 
                direct user fees, advertising revenues, or other 
                revenues associated with an app store, a cloud 
                computing service, an operating system, a search 
                engine, or a social media network.
            (7) Operating system.--The term ``operating system'' means 
        a computer program, implemented in either software or firmware, 
        that acts as an intermediary between users of a computer and 
        the computer hardware, providing an environment in which a user 
        can execute, operate, or otherwise utilize an application.
            (8) Own.--The term ``own'' means to hold an equity interest 
        (or the equivalent thereof) of more than 10 percent.
            (9) Search engine.--The term ``search engine'' means a 
        technology that enables a user to initiate a search query for 
        particular information using the internet and that is capable 
        of returning at least 1 search result unaffiliated with the 
        owner or operator of the search engine.
            (10) Small internet platform.--The term ``small internet 
        platform'' means an internet platform that has--
                    (A) fewer than 100,000,000 global active users; and
                    (B) less than $500,000,000 in annual revenues, 
                including direct user fees, advertising revenues, or 
                other revenues associated with an app store, a cloud 
                computing service, an operating system, a search 
                engine, or a social media network.
            (11) Social media network.--
                    (A) In general.--The term ``social media network'' 
                means an internet-enabled network that hosts any 
                information, comment, message, still image, or moving 
                image posted by a user to facilitate interpersonal 
                communication between or among users.
                    (B) Exception.--Such term does not include 
                electronic mail or an online service, application, or 
                website for which the hosting of such information or 
                other content is incidental to the provision of news, 
                sports, entertainment, or other information not 
                generated by users.
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