[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4893 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  2d Session
                                S. 4893

 To require online service providers to disclose their acceptable use 
policies, provide users with written notice before the termination of a 
user's account, and publish an annual report detailing actions taken to 
     enforce their acceptable use policies, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2024

  Mr. Cruz (for himself, Mr. Wicker, and Mr. Schmitt) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
 To require online service providers to disclose their acceptable use 
policies, provide users with written notice before the termination of a 
user's account, and publish an annual report detailing actions taken to 
     enforce their acceptable use policies, 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 ``Transparency in Enforcement, 
Restricting, and Monitoring of Services Act'' or the ``TERMS Act''.

SEC. 2. PURPOSE.

    The purpose of this Act is to ensure that consumers, businesses, 
and organizations seeking to use the products or services of an online 
service provider have sufficient information regarding the online 
service provider's commercial business standards, processes, and 
policies with respect to the unilateral termination, suspension, or 
cancellation of user accounts or ability to use the online service 
provider's products or services. Such information allows consumers to 
make informed choices regarding their decision to use or purchase the 
services or products of an online service provider and promotes a 
competitive marketplace for such products or services.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (2) Nonprofit organization.--The term ``nonprofit 
        organization'' has the meaning given such term in section 
        201(i) of title 35, United States Code.
            (3) Online service provider.--The term ``online service 
        provider''--
                    (A) means the provider of a public-facing website, 
                online service, or online application directed to a 
                consumer or organization that--
                            (i) requires any person who wishes to use 
                        the website, online service, or online 
                        application to create a unique account or 
                        profile for such website, service, or 
                        application;
                            (ii) provides an internet-based product or 
                        service to the general public that is 
                        accessible through the website, online service, 
                        or online application; and
                            (iii) is engaged in interstate or foreign 
                        commerce; and
                    (B) includes any entity described in subparagraph 
                (A), regardless of whether--
                            (i) offering a product or service to the 
                        general public is the sole source of income or 
                        principal business of such entity; or
                            (ii) the entity earns a profit on a product 
                        or service.
            (4) Restrict.--The term ``restrict'', with respect to a 
        user, means an online service provider's termination or 
        suspension of a user's account or profile on the online service 
        provider's website, online service, or online application, or 
        limitation of the user's access thereto based on a 
        determination that the user violated the online service 
        provider's acceptable use policy.
            (5) User.--The term ``user'' means, with respect to an 
        online service provider, a person who registers an account or 
        creates a profile on the website, online service, or online 
        application of the online service provider.

SEC. 4. DISCLOSURE OF ACCEPTABLE USE POLICIES.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act and subject to subsection (b), an online service 
provider shall publicly disclose in an easily accessible manner, such 
as within terms of service available on the online service provider's 
website, an acceptable use policy that concisely and accurately 
describes, in easy to understand language, information regarding the 
standards, processes, and policies of the online service provider with 
respect to any decision by the online service provider to restrict a 
user.
    (b) Required Information.--For purposes of subsection (a), an 
online service provider shall include the following information in an 
acceptable use policy:
            (1) An explanation of what specific acts or practices are 
        prohibited by the online service provider that could lead to a 
        decision by the online service provider to restrict a user.
            (2) An explanation of how the online service provider 
        enforces the acceptable use policy, including any third party 
        the online service provider relies upon, in whole or in part, 
        to assist in the enforcement of the acceptable use policy by 
        the online service provider.
            (3) Either--
                    (A) an explanation of how a user can appeal, if 
                applicable, a decision by an online service provider to 
                restrict a user; or
                    (B) if the online service provider does not permit 
                an appeal or reconsideration of a decision to restrict 
                a user, a statement that such decision is not 
                appealable or subject to reconsideration.
            (4) An explanation of whether acts or practices a user 
        commits entirely outside of the website, online service, or 
        online application of the online service provider, such as 
        social media posts, public statements, media publications, and 
        third-party resources, may be a sufficient basis alone or in 
        combination with other information to restrict a user.
            (5) An explanation of the online service provider's 
        standards, processes, and policies with respect to the notice 
        requirement described in section 5.

SEC. 5. ADVANCE WRITTEN NOTICE PRIOR TO TERMINATION OR SUSPENSION.

    (a) Notice Requirement.--
            (1) In general.--Except as described in subsection (b), an 
        online service provider shall provide advance written notice to 
        a user in violation of the online service provider's acceptable 
        use policy prior to restricting the user.
            (2) Required information.--The advance written notice 
        required under paragraph (1) shall include the following 
        information:
                    (A) The specific act or practice of the user that 
                led to the decision to restrict the user.
                    (B) A description of how the act or practice 
                identified in subparagraph (A) violated the acceptable 
                use policy.
                    (C) Whether the user has an option to appeal the 
                decision, and, if so, a description of the process for 
                how the user can appeal the online service provider's 
                decision, consistent with the acceptable use policy.
                    (D) A description of the option for the user to 
                elect that the online service provider publicly 
                disclose such written notice as described in paragraph 
                (4).
            (3) Advance written notice.--
                    (A) In general.--For the purposes of this section, 
                an online service provider will be deemed to have 
                provided an advance written notice to a user if such 
                provider makes a good faith effort to notify the user 
                not later than 7 days prior to restricting the user.
                    (B) Good faith effort.--For the purposes of 
                subparagraph (A), a good faith effort may include--
                            (i) a notification to the most recent email 
                        address or other contact information the user 
                        provided to the online service provider; or
                            (ii) if the online service provider does 
                        not have any contact information of the user, a 
                        highly visible notice that is displayed to the 
                        user on the online service provider's website, 
                        service, or application when the user next 
                        accesses such website, service, or application.
            (4) Public disclosure.--An online service provider shall--
                    (A) provide to any user issued a written notice 
                under paragraph (1) an option for the online service 
                provider to publicly disclose such notice; and
                    (B) if such user chooses to have such notice 
                publicly disclosed, publish such notice on the website 
                of the online service provider.
    (b) Exceptions for Court Action or Imminent Risk of Harm.--An 
online service provider may restrict a user without advance written 
notice if--
            (1) such restriction was done to--
                    (A) comply with a lawful order of a court of 
                competent jurisdiction; or
                    (B) protect against an imminent risk of--
                            (i) death;
                            (ii) a serious physical injury; or
                            (iii) a serious health risk; and
            (2) the online service provider provides the user the 
        information required by subsection (a)(2) and publicly 
        discloses the written notice at the same time that the provider 
        restricts the user or as soon as practicable thereafter.
    (c) Effective Date.--The requirements of this section shall take 
effect on the date that is 180 days after the date of enactment of this 
Act.

SEC. 6. REPORTING REQUIREMENTS.

    (a) Annual Report.--Not later than 1 year after the date of 
enactment of this Act and annually thereafter on a date to be 
determined by each online service provider, an online service provider 
shall publish, with an open license, in both a format easily read by 
humans and a machine-readable format, in a location on their public 
website that is easily accessible to users, and consistent with the 
requirements described in subsections (b) and (c), a report detailing 
actions taken to enforce the online service provider's acceptable use 
policy.
    (b) Report Requirements.--The report required under subsection (a) 
shall include the following information with respect to the applicable 
reporting period:
            (1) The total number of instances in which the online 
        service provider was alerted of a potential violation of the 
        acceptable use policy by--
                    (A) a user complaint;
                    (B) an employee of, or a person contracting with, 
                the online service provider;
                    (C) an internal automated detection tool of the 
                online service provider;
                    (D) a government entity, including the specific 
                office or entity that alerted the online service 
                provider;
                    (E) a nonprofit organization; or
                    (F) any other person.
            (2) Subject to subsection (c), the number of instances in 
        which the online service provider took steps to restrict a 
        user, including the number of instances in which the online 
        service provider--
                    (A) terminated a user's account or profile on the 
                online service provider's website, online service, or 
                online application or otherwise permanently limited 
                access to or use of the product or service of the 
                online service provider;
                    (B) suspended a user's account or profile on the 
                online service provider's website, online service, or 
                online application;
                    (C) limited a user's access to the online service 
                provider's website, online service, or online 
                application; or
                    (D) took any other action, such as issuing a 
                warning, in response to a violation of the acceptable 
                use policy.
            (3) The number of instances in which a user appealed the 
        online service provider's decision.
            (4) The number of appeals that resulted in a reversal of 
        the online service provider's decision.
    (c) Categorization of Actions Taken.--The information described in 
subsection (b)(2) shall be categorized by--
            (1) the exact provision of the acceptable use policy that 
        was violated by a user; and
            (2) the source of the alert of the potential violation of 
        the acceptable use policy as described in subsection (b)(1).

SEC. 7. ENFORCEMENT.

    (a) Enforcement by the Commission.--
            (1) Unfair or deceptive acts or practices.--A violation of 
        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)).
            (2) Powers of the 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 online service provider who 
                violates this Act 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.).
                    (C) Nonprofit organizations.--Notwithstanding 
                section 4, 5(a)(2), or 6 of the Federal Trade 
                Commission Act (15 U.S.C. 44, 45(a)(2), 46) or any 
                jurisdictional limitation of the Commission, the 
                Commission shall also enforce this Act, in the same 
                manner provided in subparagraphs (A) and (B), with 
                respect to organizations not organized to carry on 
                business for their own profit or that of their members.
                    (D) Authority preserved.--Nothing in this 
                subsection shall be construed to limit the authority of 
                the Commission under any other provision of law.
    (b) Enforcement by States.--
            (1) In general.--In any case in which the attorney general 
        of a State has reason to believe that an interest of the 
        residents of the State has been or is threatened or adversely 
        affected by the engagement of any online service provider in a 
        practice that violates this Act, the attorney general of the 
        State may, as parens patriae, bring a civil action on behalf of 
        the residents of the State in an appropriate district court of 
        the United States--
                    (A) to enjoin further violation of this Act by such 
                online service provider;
                    (B) to enforce compliance with this Act;
                    (C) to obtain damages, restitution, or other 
                compensation on behalf of such residents; and
                    (D) to obtain such other relief as the court may 
                consider to be appropriate.
            (2) Rights of the commission.--
                    (A) Notice to the commission.--
                            (i) In general.--Except as provided in 
                        clause (iii), the attorney general of a State 
                        shall notify the Commission in writing that the 
                        attorney general intends to bring a civil 
                        action under paragraph (1) before initiating 
                        the civil action.
                            (ii) Contents.--The notification required 
                        by clause (i) with respect to a civil action 
                        shall include a copy of the complaint to be 
                        filed to initiate the civil action.
                            (iii) Exception.--If it is not feasible for 
                        the attorney general of a State to provide the 
                        notification required by clause (i) before 
                        initiating a civil action under paragraph (1), 
                        the attorney general shall notify the 
                        Commission immediately upon instituting the 
                        civil action.
                    (B) Intervention by the commission.--The Commission 
                may--
                            (i) intervene in any civil action brought 
                        by the attorney general of a State under 
                        paragraph (1); and
                            (ii) upon intervening--
                                    (I) be heard on all matters arising 
                                in the civil action; and
                                    (II) file petitions for appeal of a 
                                decision in the civil action.
            (3) Investigatory powers.--Nothing in this subsection may 
        be construed to prevent the attorney general of a State from 
        exercising the powers conferred on the attorney general by the 
        laws of the State to conduct investigations, to administer 
        oaths or affirmations, or to compel the attendance of witnesses 
        or the production of documentary or other evidence.
            (4) Preemptive action by the commission.--If the Commission 
        institutes a civil action or an administrative action with 
        respect to a violation of this Act, the attorney general of a 
        State may not, during the pendency of such action, bring a 
        civil action under paragraph (1) against any defendant named in 
        the complaint of the Commission for the violation with respect 
        to which the Commission instituted such action.
            (5) Venue; service or process.--
                    (A) Venue.--Any action brought under paragraph (1) 
                may be brought in--
                            (i) the district court of the United States 
                        that meets applicable requirements relating to 
                        venue under section 1391 of title 28, United 
                        States Code; or
                            (ii) another court of competent 
                        jurisdiction.
                    (B) Service of process.--In an action brought under 
                paragraph (1), process may be served in any district in 
                which the defendant--
                            (i) is an inhabitant; or
                            (ii) may be found.
            (6) Actions by other state officials.--
                    (A) In general.--In addition to civil actions 
                brought by attorneys general under paragraph (1), any 
                other officer of a State who is authorized by the State 
                to do so may bring a civil action under paragraph (1), 
                subject to the same requirements and limitations that 
                apply under this subsection to civil actions brought by 
                attorneys general.
                    (B) Savings provision.--Nothing in this subsection 
                may be construed to prohibit an authorized official of 
                a State from initiating or continuing any proceeding in 
                a court of the State for a violation of any civil or 
                criminal law of the State.
    (c) Commission Guidance.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Commission shall issue guidance to 
        assist online service providers in complying with the 
        requirements of this Act, which shall include the provision of 
        best practices and examples.
            (2) Limitation on guidance.--No guidance issued by the 
        Commission with respect to this Act shall--
                    (A) confer any rights on any person, State, or 
                locality; or
                    (B) operate to bind the Commission or any person to 
                the approach recommended in such guidance.
            (3) Use in enforcement actions.--In any enforcement action 
        brought pursuant to this Act--
                    (A) the Commission or State attorney general, as 
                applicable--
                            (i) shall allege a specific violation of a 
                        provision of this Act; and
                            (ii) may not base such enforcement on, or 
                        execute a consent order based on, practices 
                        that are alleged to be inconsistent with any 
                        guidance issued by the Commission with respect 
                        to this Act, unless the practices are alleged 
                        to violate a provision of this Act; and
                    (B) a person may use compliance with any such 
                guidance as evidence of compliance with this Act.
                                 <all>