[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2708 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 2708

 To prohibit the use of exploitative and deceptive practices by large 
online operators and to promote transparency and consumer choice in the 
             use of behavioral research by such providers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 27, 2023

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

_______________________________________________________________________

                                 A BILL


 
 To prohibit the use of exploitative and deceptive practices by large 
online operators and to promote transparency and consumer choice 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) Affirmative express consent.--The term ``affirmative 
        express consent''--
                    (A) means an affirmative act by a user that--
                            (i) clearly communicates the user's 
                        authorization for a specific act or practice 
                        for which the user's consent is sought to 
                        proceed;
                            (ii) is freely taken by the user; and
                            (iii) is taken after the user is informed 
                        about the act or practice for which consent is 
                        sought, including through the presentation to 
                        the user of a clear and conspicuous description 
                        of the act or practice; and
                    (B) does not include--
                            (i) the consent of a child or teen; or
                            (ii) the consent to a provision contained 
                        in a general contract or service agreement.
            (2) Aggregated data.--The term ``aggregated data'' means 
        data that have been combined or collected together in summary 
        or other form such that the data is not linked or reasonably 
        linkable to any individual.
            (3) Auto-play.--The term ``auto-play'' means the automatic 
        playing of content selected by a personalized recommendation 
        system for a user.
            (4) Child.--The term ``child'' has the meaning given such 
        term in section 1302 of the Children's Online Privacy 
        Protection Act of 1998 (15 U.S.C. 6501).
            (5) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (6) Compulsive usage.--The term ``compulsive usage'' means 
        any response stimulated by external factors that causes an 
        individual to engage in repetitive behavior causing 
        psychological distress, loss of control, anxiety, depression, 
        or harmful stress responses.
            (7) Covered research.--The term ``covered research'' means 
        behavioral or psychological experimentation or research, 
        including through human experimentation, of overt or observable 
        user actions on online platforms, including interactions 
        between and among individuals and the activities of social 
        groups, that involves interventions that are designed by the 
        experimenter or researcher to alter or manipulate the emotions 
        of users.
            (8) De-identified data.--The term ``de-identified data'' 
        means information that--
                    (A) does not identify and is not linked or 
                reasonably linkable to a distinct individual or a 
                device, regardless of whether the information is 
                aggregated; and
                    (B) does not contain any persistent identifier or 
                other information that could readily be used to 
                reidentify, or link the information to, the individual 
                to whom, or the device to which, the identifier or 
                information pertains.
            (9) Independent review board.--The term ``independent 
        review board'' means a board, committee, or other group that--
                    (A) serves to--
                            (i) protect the autonomy and privacy of 
                        users;
                            (ii) prevent exploitative and manipulative 
                        acts or practices;
                            (iii) promote transparent principles of 
                        user interface and user experience design;
                            (iv) promote research in keeping with best 
                        practices of covered research; and
                            (v) continually evaluate industry practices 
                        and issue guidance consistent with the 
                        objectives of this Act; and
                    (B) is formally designated by a large online 
                operator to review, to approve the initiation of, and 
                to conduct ongoing periodic reviews of, any covered 
                research by, or at the direction or discretion of, a 
                large online operator, involving human subjects.
            (10) Large online operator.--The term ``large online 
        operator'' means any person that--
                    (A) provides an online service that has more than 
                100,000,000 authenticated users of an online service in 
                any 30-day period; and
                    (B) is subject to the jurisdiction of the 
                Commission under the Federal Trade Commission Act (15 
                U.S.C. 41 et seq.).
            (11) 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 an email 
        service.
            (12) Publicly available information.--The term ``publicly 
        available information'' means any information that a large 
        online operator has a reasonable basis to believe has been 
        lawfully made available to the general public from--
                    (A) Federal, State, or local government records;
                    (B) widely distributed media, including--
                            (i) information from a telephone book or 
                        online directory;
                            (ii) television, internet, or radio content 
                        or programming; or
                            (iii) a website or online service made 
                        available to all members of the public, for 
                        free or for a fee, including where all members 
                        of the public, for free or for a fee, can log 
                        in to the website or online service;
                    (C) a disclosure to the general public that is 
                required to be made by Federal, State, or local law; or
                    (D) the visual observation of the physical presence 
                of an individual or a device in a public place, not 
                including data collected by a device in the possession 
                of the individual.
            (13) Teen.--The term ``teen'' means an individual over the 
        age of 12 and under the age of 17.
            (14) User.--The term ``user'' means any individual who 
        engages with an online service.
            (15) User autonomy.--The term ``user autonomy'' means the 
        technical ability of a user to interact with a user interface 
        of an online service in a manner that aligns with personal 
        intent.
            (16) User data.--The term ``user data''--
                    (A) means any information that identifies or is 
                linked or reasonably linkable to an individual or a 
                device that is linked or reasonably linkable to an 
                individual, 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; and
                    (B) does not include--
                            (i) aggregated data;
                            (ii) de-identified data; or
                            (iii) publicly available information, or 
                        inferences derived solely based on publicly 
                        available information.
            (17) User experience.--The term ``user experience'' means 
        how a user interacts with an online service.
            (18) User interface.--The term ``user interface'' means the 
        point at which a user interacts with a system, device, or 
        process of an online service.

SEC. 3. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RELATING TO THE 
              MANIPULATION OF USER INTERFACES.

    (a) Conduct Prohibited.--It shall be unlawful for any large online 
operator--
            (1) to design, modify, or manipulate a user interface on 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;
            (2) to subdivide or segment consumers of online services 
        into groups for the purposes of covered research, except with 
        the affirmative express consent of each user involved; or
            (3) to design, modify, or manipulate a user interface on an 
        online service, or portion of a user interface or online 
        service, that is directed to a child or teen with the purpose 
        or substantial effect of causing, increasing, or encouraging 
        compulsive usage, including using 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 covered research based on the activity or 
data of the users of the large online operator shall do each of the 
following:
            (1) Disclose to its users on a routine basis, but not less 
        than once each 90 days, the general purpose of any such covered 
        research to each user whose user data is or was subject to or 
        included in any covered research during the previous 90-day 
        period.
            (2) Disclose to the public on a routine basis, but not less 
        than once each 90 days, any covered research with the purposes 
        of promoting engagement or product conversion being currently 
        undertaken, or concluded since the prior disclosure.
            (3) Present the disclosures described in paragraphs (1) and 
        (2) in a manner that is--
                    (A) clear, conspicuous, context-appropriate, and 
                easily accessible; and
                    (B) not deceptively obscured.
            (4)(A) Subject to subparagraph (B), remove and delete all 
        user data obtained from affected users in the course of covered 
        research if the large online operator--
                    (i) determines (or determines that it has reason to 
                believe) that the affirmative express consent required 
                under this section from such users was not acquired; 
                and
                    (ii) is unable to obtain within 2 business days of 
                such determination the affirmative express consent 
                required under this section.
            (B) If unable to remove and delete user data pursuant to 
        subparagraph (A), discontinue the covered research.
            (5)(A) Establish a process by which a user may choose to 
        opt out of covered research at a later date from when the user 
        previously provided affirmative express consent for such 
        research.
            (B) Subject to subparagraph (A), following the decision of 
        a user to opt out, stop collecting, processing, or transferring 
        any data from such user for the purposes of the covered 
        research.
            (6) Establish an independent review board that shall--
                    (A) develop, on a continuing basis and using the 
                resources developed under section 4, guidance and rules 
                for the development of user interface and user 
                experience design of the large online operator that are 
                consistent with the requirements of subsection (a) of 
                this section; and
                    (B) review and have authority to approve, require 
                modification in, or disapprove all covered research 
                conducted on users or on the basis of user activity or 
                data consistent with subsection (a)(2).
            (7) Ensure that any independent review board established 
        under paragraph (6) registers with the Commission, including 
        providing to the Commission--
                    (A) the names and resumes of every member of the 
                independent review board;
                    (B) the composition and reporting structure of the 
                independent review board to the management of the large 
                online operator;
                    (C) the process by which the independent review 
                board is to be notified of covered research or 
                modifications of covered research, along with the 
                processes by which the independent review board is 
                capable of vetoing or amending such research;
                    (D) any compensation provided to members of the 
                independent review board; and
                    (E) any conflict of interest that might exist 
                concerning the participation of an individual on the 
                independent review board.

SEC. 4. NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY RESOURCES.

    (a) In General.--Not later than 540 days after the date of the 
enactment of this Act, the Director of the National Institute of 
Standards and Technology shall, acting through the Information 
Technology Laboratory of the National Institute of Standards and 
Technology, conduct research to develop and disseminate consensus-based 
resources consistent with subsection (b) that provide recommendations 
for user interface and user experience design that support user 
autonomy, choice, and decision making in providing user consent for 
online services.
    (b) Content of Resources.--The resources developed under subsection 
(a) shall--
            (1) involve methodology for usability testing to identify 
        usability problems by collecting quantitative and qualitative 
        data to determine the ability of users to navigate options to 
        achieve the specified goals of user autonomy, choice, and 
        decision making in user interface and user experience design;
            (2) include examples or demonstrations of user interface 
        design that may restrict the user autonomy, choice, or decision 
        making of a user; and
            (3) include methodology to evaluate the ability to identify 
        default settings that impair user autonomy.

SEC. 5. ENFORCEMENT BY THE COMMISSION.

    (a) Unfair or Deceptive Acts or Practices.--A violation of section 
3 or a regulation promulgated under this Act 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)).
    (b) Powers of the Commission.--
            (1) In general.--The Commission shall enforce section 3 and 
        the regulations promulgated under 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.--Any person who violates 
        section 3 or a regulation promulgated under 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 or expand the authority of the Commission 
        under any other provision of law.
            (4) Regulations.--Not later than 2 years 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 for the registration, 
                formation, and oversight of independent review boards, 
                including standards that ensure effective independence 
                of such boards from improper or undue influence by a 
                large online operator; and
                    (B) using the resources produced by the Director of 
                the National Institute of Standards and Technology 
                under section 4 as guidance, define conduct that does 
                not have the purpose or substantial effect of--
                            (i) obscuring, subverting, or impairing 
                        user autonomy, decision making, or choice; or
                            (ii) causing, increasing, or encouraging 
                        compulsive usage for a child or teen, such as--
                                    (I) de minimis user interface 
                                changes derived from testing consumer 
                                preferences where such changes of 
                                design elements are not done solely to 
                                obtain affirmative express consent or 
                                user data;
                                    (II) algorithms or data outputs 
                                outside the control of a large online 
                                operator or the affiliates of such 
                                operator; and
                                    (III) establishing default settings 
                                that provide enhanced privacy 
                                protection to users or otherwise 
                                enhance the autonomy and decision-
                                making ability of such users.
            (5) 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 definitions developed 
        under paragraph (4)(B).
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