[Congressional Record Volume 161, Number 181 (Monday, December 14, 2015)]
[Senate]
[Pages S8638-S8639]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





                           TEXT OF AMENDMENTS

  SA 2927. Mr. McCONNELL (for Mr. Thune (for himself, Mr. Schatz, Mr. 
Moran, Mr. Daines, Mr. Blumenthal, Mr. Booker, and Mr. Wyden)) proposed 
an amendment to the bill S. 2044, to prohibit the use of certain 
clauses in form contracts that restrict the ability of a consumer to 
communicate regarding the goods or services offered in interstate 
commerce that were the subject of the contract, and for other purposes; 
as follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Consumer Review Freedom Act 
     of 2015''.

     SEC. 2. CONSUMER REVIEW PROTECTION.

       (a) Definitions.--In this section:
       (1) Commission.--The term ``Commission'' means the Federal 
     Trade Commission.
       (2) Covered communication.--The term ``covered 
     communication'' means a written, oral, or pictorial review, 
     performance assessment of, or other similar analysis of, 
     including by electronic means, the goods, services, or 
     conduct of a person by an individual who is party to a form 
     contract with respect to which such person is also a party.
       (3) Form contract.--
       (A) In general.--Except as provided in subparagraph (B), 
     the term ``form contract'' means a contract with standardized 
     terms--
       (i) used by a person in the course of selling or leasing 
     the person's goods or services; and
       (ii) imposed on an individual without a meaningful 
     opportunity for such individual to negotiate the standardized 
     terms.
       (B) Exception.--The term ``form contract'' does not include 
     an employer-employee or independent contractor contract.
       (4) Pictorial.--The term ``pictorial'' includes pictures, 
     photographs, video, illustrations, and symbols.
       (b) Invalidity of Contracts That Impede Consumer Reviews.--
       (1) In general.--Except as provided in paragraphs (2) and 
     (3), a provision of a form contract is void from the 
     inception of such contract if such provision--
       (A) prohibits or restricts the ability of an individual who 
     is a party to the form contract to engage in a covered 
     communication;
       (B) imposes a penalty or fee against an individual who is a 
     party to the form contract for engaging in a covered 
     communication; or
       (C) transfers or requires an individual who is a party to 
     the form contract to transfer to any person any intellectual 
     property rights in review or feedback content, with the 
     exception of a non-exclusive license to use the content, that 
     the individual may have in any otherwise lawful covered 
     communication about such person or the goods or services 
     provided by such person.
       (2) Rule of construction.--Nothing in paragraph (1) shall 
     be construed to affect--
       (A) any duty of confidentiality imposed by law (including 
     agency guidance);
       (B) any civil cause of action for defamation, libel, or 
     slander, or any similar cause of action;
       (C) any party's right to remove or refuse to display 
     publicly on an Internet website or webpage owned, operated, 
     or otherwise controlled by such party any content of a 
     covered communication that--
       (i) contains the personal information or likeness of 
     another person or is libelous, harassing, abusive, obscene, 
     vulgar, sexually explicit, or inappropriate with respect to 
     race, gender, sexuality, ethnicity, or other intrinsic 
     characteristic;
       (ii) is unrelated to the goods or services offered by or 
     available at such party's Internet website or webpage; or
       (iii) is clearly false or misleading; or
       (D) a party's right to establish terms and conditions with 
     respect to the creation of photographs or video of such 
     party's property when those photographs or video are created 
     by an employee or independent contractor of a commercial 
     entity and solely intended for commercial purposes by that 
     entity.
       (3) Exceptions.--Paragraph (1) shall not apply to the 
     extent that a provision of a form contract prohibits 
     disclosure or submission of, or reserves the right of a 
     person or business that hosts online consumer reviews or 
     comments to remove--
       (A) trade secrets or commercial or financial information 
     obtained from a person and considered privileged or 
     confidential;
       (B) personnel and medical files and similar information the 
     disclosure of which would constitute a clearly unwarranted 
     invasion of personal privacy;
       (C) records or information compiled for law enforcement 
     purposes, the disclosure of which would constitute a clearly 
     unwarranted invasion of personal privacy;
       (D) content that is unlawful or otherwise meets the 
     requirements of paragraph (2)(C); or
       (E) content that contains any computer viruses, worms, or 
     other potentially damaging computer code, processes, 
     programs, applications, or files.
       (c) Prohibition.--It shall be unlawful for a person to 
     offer a form contract containing a provision described as 
     void in subsection (b).
       (d) Enforcement by Commission.--
       (1) Unfair or deceptive acts or practices.--A violation of 
     subsection (c) by a person with respect to which the 
     Commission is empowered under section 5(a)(2) of the Federal 
     Trade Commission Act (15 U.S.C. 45(a)(2)) 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.--The Commission shall enforce this section 
     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.--Any person who violates 
     this section 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.).
       (e) Enforcement by States.--
       (1) Authorization.--Subject to subparagraph (B), 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 person subject to subsection (c) in a practice that 
     violates such subsection, 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 to obtain appropriate relief.
       (2) Rights of federal trade commission.--
       (A) Notice to federal trade 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 
     against a person described in subsection (d)(1).
       (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 federal trade commission.--The 
     Commission may--
       (i) intervene in any civil action brought by the attorney 
     general of a State under paragraph (1) against a person 
     described in subsection (d)(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 federal trade commission.--If the 
     Federal Trade Commission institutes a civil action or an 
     administrative action with respect to a violation of 
     subsection (c), 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 of 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 consumer 
     protection 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.
       (f)  Education and Outreach for Businesses.--Not later than 
     60 days after the date of the enactment of this Act, the 
     Commission shall commence conducting education and outreach 
     that provides businesses with non-binding best practices for 
     compliance with this Act.
       (g) Relation to State Causes of Action.--Nothing in this 
     section shall be construed to affect any cause of action 
     brought by a person that exists or may exist under State law.
       (h) Effective Dates.--This section shall take effect on the 
     date of the enactment of this Act, except that--

[[Page S8639]]

       (1) subsections (b) and (c) shall apply with respect to 
     contracts in effect on or after the date that is 90 days 
     after the date of the enactment of this Act; and
       (2) subsections (d) and (e) shall apply with respect to 
     contracts in effect on or after the date that is 1 year after 
     the date of the enactment of this Act.

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