[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4309 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  2d Session
                                S. 4309

   To promote competition and reduce consumer switching costs in the 
              provision of online communications services.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 25, 2022

 Mr. Warner (for himself, Mr. Blumenthal, Mr. Graham, Mr. Hawley, and 
Ms. Klobuchar) introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
   To promote competition and reduce consumer switching costs in the 
              provision of online communications services.

    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 2022'' or the ``ACCESS 
Act of 2022''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (2) Communications provider.--The term ``communications 
        provider'' means a consumer-facing communications and 
        information services provider.
            (3) Competing communications provider.--The term 
        ``competing communications provider'', with respect to a large 
        communications platform provider, means another communications 
        provider offering, or planning to offer, similar products or 
        services to consumers.
            (4) Competing communications service.--The term ``competing 
        communications service'', with respect to a large 
        communications platform, means a similar product or service 
        provided by a competing communications provider.
            (5) Custodial third-party agent.--The term ``custodial 
        third-party agent'' means an entity that is duly authorized by 
        a user to interact with a large communications platform 
        provider on that user's behalf to manage the user's online 
        interactions, content, and account settings.
            (6) Interoperability interface.--The term 
        ``interoperability interface'' means an electronic interface 
        maintained by a large communications platform for purposes of 
        achieving interoperability.
            (7) Large communications platform.--The term ``large 
        communications platform'' means a product or service provided 
        by a communications provider that--
                    (A) generates income, directly or indirectly, from 
                the collection, processing, sale, or sharing of user 
                data; and
                    (B) has more than 100,000,000 monthly active users 
                in the United States.
            (8) Large communications platform provider.--The term 
        ``large communications platform provider'' means a 
        communications provider that provides, manages, or controls a 
        large communications platform.
            (9) User data.--
                    (A) In general.--The term ``user data'' means 
                information that is--
                            (i) collected directly by a communications 
                        provider; and
                            (ii) linked, or reasonably linkable, to a 
                        specific person.
                    (B) Exclusion.--The term ``user data'' does not 
                include information that is rendered unusable, 
                unreadable, de-identified, or anonymized.

SEC. 3. PORTABILITY.

    (a) General Duty of Large Communications Platform Providers.--A 
large communications platform provider shall, for each large 
communications platform it operates, maintain a set of transparent, 
third-party-accessible interfaces (including application programming 
interfaces) to initiate the secure transfer of user data to a user, or 
to a competing communications provider acting at the direction of a 
user, in a structured, commonly used, and machine-readable format.
    (b) General Duty of Competing Communications Providers.--A 
competing communications provider that receives ported user data from a 
large communications platform provider shall reasonably secure any user 
data it acquires.
    (c) Exemption for Certain Services.--The obligations under this 
section shall not apply to a product or service by which a large 
communications platform provider does not generate any income or other 
compensation, directly or indirectly, from collecting, using, or 
sharing user data.

SEC. 4. INTEROPERABILITY.

    (a) General Duty of Large Communications Platform Providers.--A 
large communications platform provider shall, for each large 
communications platform it operates, maintain a set of transparent, 
third-party-accessible interfaces (including application programming 
interfaces) to facilitate and maintain technically compatible, 
interoperable communications with a user of a competing communications 
provider.
    (b) General Duty of Competing Communications Providers.--A 
competing communications provider that accesses an interoperability 
interface of a large communications platform provider shall reasonably 
secure any user data it acquires, processes, or transmits.
    (c) Interoperability Obligations for Large Communications Platform 
Providers.--
            (1) In general.--In order to achieve interoperability under 
        subsection (a), a large communications platform provider shall 
        fulfill the duties under paragraphs (2) through (6) of this 
        subsection.
            (2) Non-discrimination.--
                    (A) In general.--A large communications platform 
                provider shall facilitate and maintain interoperability 
                with competing communications services for each of its 
                large communications platforms through an 
                interoperability interface, based on fair, reasonable, 
                and nondiscriminatory terms.
                    (B) Reasonable thresholds, access standards, and 
                fees.--
                            (i) In general.--A large communications 
                        platform provider may establish reasonable 
                        thresholds related to the frequency, nature, 
                        and volume of requests by a competing 
                        communications provider to access resources 
                        maintained by the large communications platform 
                        provider, beyond which the large communications 
                        platform provider may assess a reasonable fee 
                        for such access.
                            (ii) Usage expectations.--A large 
                        communications platform provider may establish 
                        fair, reasonable, and nondiscriminatory usage 
                        expectations to govern access by competing 
                        communications providers, including fees or 
                        penalties for providers that exceed those usage 
                        expectations.
                            (iii) Limitation on fees and usage 
                        expectations.--Any fees, penalties, or usage 
                        expectations assessed under clauses (i) and 
                        (ii) shall be reasonably proportional to the 
                        cost, complexity, and risk to the large 
                        communications platform provider of providing 
                        such access.
                            (iv) Notice.--A large communications 
                        platform provider shall provide public notice 
                        of any fees, penalties, or usage expectations 
                        that may be established under clauses (i) and 
                        (ii), including reasonable advance notice of 
                        any changes.
                            (v) Security and privacy standards.--A 
                        large communications platform provider shall, 
                        consistent with industry best practices, set 
                        privacy and security standards for access by 
                        competing communications services to the extent 
                        reasonably necessary to address a threat to the 
                        large communications platform or user data, and 
                        shall report any suspected violations of those 
                        standards to the Commission.
                    (C) Prohibited changes to interfaces.--A change to 
                an interoperability interface or terms of use made with 
                the purpose, or substantial effect, of unreasonably 
                denying access or undermining interoperability for 
                competing communications services shall be considered a 
                violation of the duty under subparagraph (A) to 
                facilitate and maintain interoperability based on fair, 
                reasonable, and nondiscriminatory terms.
            (3) Functional equivalence.--A large communications 
        platform provider that maintains interoperability between its 
        own large communications platform and other products, services, 
        or affiliated offerings of such provider shall offer a 
        functionally equivalent version of that interface to competing 
        communications services.
            (4) Interface information.--
                    (A) In general.--Not later than 120 days after the 
                date of enactment of this Act, a large communications 
                platform provider shall disclose to competing 
                communications providers complete and accurate 
                documentation describing access to the interoperability 
                interface required under this section.
                    (B) Contents.--The documentation required under 
                subparagraph (A)--
                            (i) is limited to interface documentation 
                        necessary to achieve development and operation 
                        of interoperable products and services; and
                            (ii) does not require the disclosure of the 
                        source code of a large communications platform.
            (5) Notice of changes.--A large communications platform 
        provider shall provide reasonable advance notice to a competing 
        communications provider, which may be provided through public 
        notice, of any change to an interoperability interface 
        maintained by the large communications platform provider that 
        will affect the interoperability of a competing communications 
        service.
            (6) Non-commercialization by a large communications 
        platform provider.--A large communications platform provider 
        may not collect, use, or share user data obtained from a 
        competing communications service through the interoperability 
        interface except for the purposes of safeguarding the privacy 
        and security of such information or maintaining 
        interoperability of services.
    (d) Non-Commercialization by a Competing Communications Provider.--
A competing communications provider that accesses an interoperability 
interface may not collect, use, or share user data obtained from a 
large communications platform provider through the interoperability 
interface except for the purposes of safeguarding the privacy and 
security of such information or maintaining interoperability of 
services.
    (e) Exemption for Certain Services.--The obligations under this 
section shall not apply to a product or service by which a large 
communications platform provider does not generate any income or other 
compensation, directly or indirectly, from collecting, using, or 
sharing user data.

SEC. 5. DELEGATABILITY.

    (a) General Duty of Large Communications Platform Providers.--A 
large communications platform provider shall maintain a set of 
transparent third-party-accessible interfaces by which a user may 
delegate a custodial third-party agent to manage the user's online 
interactions, content, and account settings on a large communications 
platform on the same terms as a user.
    (b) Authentication.--Not later than 180 days after the date of 
enactment of this Act, the Commission shall establish rules and 
procedures to facilitate a custodial third-party agent's ability to 
obtain access pursuant to subsection (a) in a way that ensures that a 
request for access on behalf of a user is a verifiable request.
    (c) Registration With the Commission.--A custodial third-party 
agent shall register with the Commission as a condition of, and prior 
to, accessing an interface described in subsection (a).
    (d) Deregistration by the Commission.--The Commission shall 
establish rules and procedures to deregister a custodial third-party 
agent that the Commission determines has violated the duties 
established in this section.
    (e) Revocation of Access Rights.--A large communications platform 
provider may revoke or deny access for any custodial third-party agent 
that--
            (1) fails to register with the Commission; or
            (2) repeatedly facilitates fraudulent or malicious 
        activity.
    (f) Duties of a Custodial Third-Party Agent.--A custodial third-
party agent--
            (1) shall reasonably safeguard the privacy and security of 
        user data provided to it by a user, or accessed on a user's 
        behalf;
            (2) shall not access or manage a user's online 
        interactions, content, or account settings in any way that--
                    (A) will benefit the custodial third-party agent to 
                the detriment of the user;
                    (B) will result in any reasonably foreseeable harm 
                to the user; or
                    (C) is inconsistent with the directions or 
                reasonable expectations of the user; and
            (3) shall not collect, use, or share any user data provided 
        to it by a user, or accessed on a user's behalf, for the 
        commercial benefit of the custodial third-party agent.
    (g) Fees.--A custodial third-party agent may charge users a fee for 
the provision of the products or services described in subsection (a).
    (h) Extent of Access Rights.--Nothing in this section shall be 
construed to confer greater rights of access for a custodial third-
party agent to a large communications platform than are accessible to a 
user.

SEC. 6. IMPLEMENTATION AND ENFORCEMENT.

    (a) Regulations.--Not later than 1 year after the date of enactment 
of this Act, the Commission shall promulgate regulations to implement 
section 4(c)(2)(B)(v) and subsections (b), (c), and (d) of section 5.
    (b) Authentication.--Not later than 180 days after the date of 
enactment of this Act, the Commission, in consultation with relevant 
industry stakeholders, shall establish rules and procedures to 
facilitate the verification of the validity of requests from users and 
competing communications providers to obtain user data under sections 
3(a) and 4(a).
    (c) Technical Standards.--Not later than 180 days after the date of 
enactment of this Act, the Director of the National Institute of 
Standards and Technology shall develop and publish model technical 
standards by which to make interoperable popular classes of 
communications or information services, including--
            (1) online messaging;
            (2) multimedia sharing; and
            (3) social networking.
    (d) Compliance Assessment.--The Commission shall regularly assess 
compliance by large communications platform providers with the 
provisions of this Act.
    (e) Complaints.--The Commission shall establish procedures under 
which a user, a large communications platform provider, a competing 
communications provider, and a custodial third-party agent may file a 
complaint alleging that a large communications platform provider, a 
competing communication provider, or a custodial third-party agent has 
violated this Act.
    (f) Enforcement.--
            (1) Unfair or deceptive acts or practices.--A violation of 
        this Act, or regulations enacted pursuant to this Act, shall be 
        treated as a violation of a rule defining an unfair or 
        deceptive act or practice prescribed under section 18(a)(1)(B) 
        of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
            (2) Powers of commission.--
                    (A) In general.--Except as provided in subparagraph 
                (C), 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.
                    (B) Privileges and immunities.--Except as provided 
                in subparagraph (C), any person who violates section 3 
                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.).
                    (C) Nonprofit organizations and common carriers.--
                Notwithstanding section 4 or 5(a)(2) of the Federal 
                Trade Commission Act (15 U.S.C. 44, 45(a)(2)) or any 
                jurisdictional limitation of the Commission, the 
                Commission shall also enforce this Act, in the same 
                manner provided in subparagraphs (A) and (B) of this 
                paragraph, with respect to common carriers subject to 
                the Communications Act of 1934 (47 U.S.C. 151 et seq.).
                    (D) Fines.--In assessing any fine for a violation 
                of this Act, the Commission shall consider each 
                individual user affected by a violation of this Act as 
                an individual violation.
    (g) Reliance on Open Standards.--Any large communications platform 
provider that establishes and maintains interoperability through an 
open standard established under subsection (c) shall be entitled to a 
rebuttable presumption of providing access on fair, reasonable, and 
nondiscriminatory terms.
    (h) Preemption.--The provisions of this Act shall preempt any State 
law only to the extent that such State law is inconsistent with the 
provisions of this Act.
    (i) Effective Date.--This Act shall take effect on the date on 
which the Commission promulgates regulations under subsection (a).

SEC. 7. RELATION TO OTHER LAWS.

    Nothing in this Act shall be construed to modify, limit, or 
supersede the operation of any privacy or security provision in--
            (1) section 552a of title 5, United States Code (commonly 
        known as the ``Privacy Act of 1974'');
            (2) the Right to Financial Privacy Act of 1978 (12 U.S.C. 
        3401 et seq.);
            (3) the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
            (4) the Fair Debt Collection Practices Act (15 U.S.C. 1692 
        et seq.);
            (5) the Children's Online Privacy Protection Act of 1998 
        (15 U.S.C. 6501 et seq.);
            (6) title V of the Gramm-Leach-Bliley Act (15 U.S.C. 6801 
        et seq.);
            (7) chapters 119, 123, and 206 of title 18, United States 
        Code;
            (8) section 444 of the General Education Provisions Act (20 
        U.S.C. 1232g) (commonly referred to as the ``Family Educational 
        Rights and Privacy Act of 1974'');
            (9) section 445 of the General Education Provisions Act (20 
        U.S.C. 1232h);
            (10) the Privacy Protection Act of 1980 (42 U.S.C. 2000aa 
        et seq.);
            (11) the regulations promulgated under section 264(c) of 
        the Health Insurance Portability and Accountability Act of 1996 
        (42 U.S.C. 1320d-2 note), as those regulations relate to--
                    (A) a person described in section 1172(a) of the 
                Social Security Act (42 U.S.C. 1320d-1(a)); or
                    (B) transactions referred to in section 1173(a)(1) 
                of the Social Security Act (42 U.S.C. 1320d-2(a)(1));
            (12) the Communications Assistance for Law Enforcement Act 
        (47 U.S.C. 1001 et seq.);
            (13) sections 222 and 227 of the Communications Act of 1934 
        (47 U.S.C. 222, 227); or
            (14) any other privacy or security provision of Federal 
        law.
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