[Congressional Record Volume 168, Number 102 (Wednesday, June 15, 2022)]
[Senate]
[Pages S2969-S2971]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. THUNE (for himself, Mr. McConnell, Mr. Barrasso, Mr.
Blunt, Ms. Ernst, Mr. Scott of Florida, Mr. Daines, Mr. Cotton,
Mr. Marshall, Mr. Cramer, Mr. Crapo, Ms. Lummis, Mr. Lankford,
Mr. Rubio, Mrs. Blackburn, Mr. Boozman, Mr. Wicker, Mr. Hawley,
Mr. Risch, Mrs. Capito, Mr. Braun, Mr. Tuberville, Mr. Moran,
Mrs. Fischer, Mr. Scott of South Carolina, Mr. Grassley, and
Mr. Sullivan):
S. 4409. A bill to prohibit providers of email services from using
filtering algorithms to flag emails from political campaigns that
consumers have elected to receive as spam; to the Committee on
Commerce, Science, and Transportation.
Mr. THUNE. Mr. President, former Google executive chairman Eric
Schmidt, in writing with Jared Cohen, once said:
Modern technology platforms [are] even more powerful than
most people realize [and that] our future world will be
profoundly altered by their adoption and successfulness in
societies everywhere.
There is no question that Big Tech plays an ever increasing role in
our lives. I imagine most of us wouldn't even be able to count the
number of times a day we interact with technology platforms, from
checking our email to spending time on social media to searching on
Google, and the pandemic only accelerated that trend as our reliance on
technology for everything from social connection to food delivery
increased.
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I don't need to tell anyone that technology platforms offer lots of
benefits. They are sources of entertainment and information. They make
it easier to stay close to distant loved ones. They allow us to shop,
to conduct business, and to connect with friends, and to advocate for
causes that we believe in.
But I also don't need to tell anyone that technology platforms have a
more problematic side as well. One big problem arises from the
increased ability Big Tech has to shape the information we see through
the use of opaque algorithms. Gone are the days when you logged into
Facebook and just consumed content that had been posted chronologically
since your previous login. Now, Facebook and other social media
platforms use algorithms to shape your news feed and provide
suggestions for additional content, emphasizing posts that the
platforms think you will be interested in and deemphasizing other
posts.
Now, obviously, algorithms are not all bad. Most of us like it when
YouTube automatically plays another video by our favorite band instead
of switching to something completely unrelated. But if a 15-year-old
kid watches a video and then YouTube's algorithms lead him or her down
a path of inappropriate videos--well, I think you could see that is a
problem.
A 2021 Wall Street Journal investigation into TikTok revealed how
easy it is for young users to be bombarded with inappropriate and
disturbing content. And thanks to limited or opaque disclosures, people
are often not aware of just how much their experience on technology
platforms is being shaped by opaque algorithms.
When we search for something on Google, most of us don't spend a lot
of time thinking about the fact that Google is tailoring our search
results to what it thinks we want to see or what it wants us to see.
But the fact of the matter is that almost all of the information being
presented to us by Big Tech platforms like social media and Google is
being filtered and tailored to us. And while, again, this can have a
positive side, it can also have negative consequences, ranging from
political polarization to addictive behavior.
As technology platforms play an ever more dominant role in our lives,
I believe platforms should be required to make users aware of the fact
that an algorithm is controlling the content they see. To that end, I
have offered multiple pieces of legislation to increase Big Tech's
transparency and to give consumers more control over their experience.
My bipartisan Filter Bubble Transparency Act would require large-
scale internet platforms to notify users that the content they are
seeing has been selected for them by secret algorithms, creating a
unique universe of information for each user--a phenomenon that is
often referred to as the ``filter bubble.'' Platforms would also be
required to give users the choice to switch to a version of the
platform that is filter bubble-free.
I have also introduced the bipartisan Platform Accountability and
Transparency Act--or the PACT Act--to shed greater light on the
secretive content moderation processes internet platforms use.
The PACT Act would require internet platforms to prepare biannual
transparency reports outlining material that they have removed from
their sites or chosen to deemphasize. These reports would have to be
made available to the public and not in intentionally complicated
legalese. Platforms would have to provide clearly understandable
versions of these reports to consumers.
The PACT Act would require technology platforms to provide consumers
with greater due process when it comes to content these platforms
remove or otherwise moderate. So if Facebook, for example, removed one
of your posts, it would have to tell you why and would have to provide
a way for you to appeal that decision.
Today, I am introducing a third piece of legislation to increase
transparency and accountability at Big Tech. This bill is called the
Political Bias in Algorithm Sorting Emails Act, otherwise known as the
Political BIAS Emails Act. The Political BIAS Emails Act is intended to
address the problem political campaigns on both sides of the aisle have
faced in getting their campaign emails to Americans.
A recent study from North Carolina State University found that during
the 2020 election, Google's Gmail--the largest email provider in the
United States--sent greater numbers of Republican campaign emails to
spam folders, while Yahoo! and Outlook sent greater numbers of
Democratic campaign emails to spam, albeit by lesser margins than
Google did for Republican campaign emails. Well, that is a problem.
Americans should have access to political communications from both
parties so that they can make their own informed decisions on what
candidates they wish to support. Disproportionately filtering out
information from candidates of one party--or from a certain candidate
within a particular political party, as happened during the Democratic
Presidential primary--skews the information available to Americans.
I do not believe that Big Tech should be deciding what information
individuals receive. Americans are free to opt out of whatever email
communications they wish, including political communications, but Big
Tech should not be making that decision for them. My Political BIAS
Emails Act would prohibit email services from using filtering
algorithms on emails sent from political campaigns where the candidate
is running from Federal office.
Gmail and other email services' inboxing practices are a black box to
consumers, and they operate with very little accountability. To address
this, my legislation would require email services to submit
transparency reports noting the number of emails from both Republican
and Democratic campaigns flagged as spam, as well as provide
information to political campaigns on request to help ensure that
voters are receiving relevant information on every candidate's policy
positions.
This legislation would help ensure that Americans and not Big Tech--I
emphasize not Big Tech--are making the decisions on what campaign
communications they want to receive.
Internet platforms have enhanced Americans' lives in a number of
ways, as I have already mentioned. But as these platforms play an ever-
greater role in shaping the information we receive, it is vital that we
insist on adequate transparency and ensure that Americans are given the
opportunity to opt out of the filter bubble. American people ought to
be in charge of what they see, not Big Tech companies.
I will continue to work to advance the various bills that I have
introduced to promote greater transparency in Big Tech. And as ranking
member of the Commerce Committee's Subcommittee on Communications,
Media, and Broadband, I will continue to focus on ways to ensure that
Big Tech is accountable to consumers.
Mr. THUNE. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 4409
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 ``Political Bias In Algorithm
Sorting Emails Act of 2022'' or the ``Political BIAS Emails
Act of 2022''.
SEC. 2. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RELATING TO
FILTERING POLITICAL EMAILS THAT A CONSUMER HAS
ELECTED TO RECEIVE.
(a) Conduct Prohibited.--
(1) In general.--It shall be unlawful for an operator of an
email service to use a filtering algorithm to apply a label
to an email sent to an email account from a political
campaign unless the owner or user of the account took action
to apply such a label.
(2) Effective date.--The prohibition under subsection (1)
shall take effect on the date that is 3 months after the date
of enactment of this Act.
(b) Quarterly Transparency Report.--
(1) In general.--Beginning with the first year that begins
on or after the date that is 120 days after the date of
enactment of this Act, each operator of an email service
shall be required to make publicly available, on a quarterly
basis, a transparency report that meets the requirements of
this subsection.
(2) Content of report.--Each quarterly report by an
operator of an email service required under this subsection
shall include the following:
(A) The total number of instances during the previous
quarter in which emails from political campaigns were flagged
as spam.
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(B) The number of instances during the previous quarter in
which emails from political campaigns were flagged as spam by
a filtering algorithm without direction from the email
account owner or user.
(C) The total number of instances during the previous
quarter when emails from political campaigns of candidates
belonging to the Republican Party were flagged as spam.
(D) The percentage of emails during the previous quarter of
the year flagged as spam from political campaigns of
candidates belonging to the Republican party.
(E) The number of instances during the previous quarter in
which emails from political campaigns of candidates belonging
to the Republican Party were flagged as spam by a filtering
algorithm without direction from the email account owner or
user.
(F) The percentage of emails during the previous quarter of
the year flagged as spam by a filtering algorithm without
direction from the email account owner or user for emails
from political campaigns of candidates belonging to the
Republican Party.
(G) The total number of instances during the previous
quarter when emails from political campaigns of candidates
belonging to the Democratic Party were flagged as spam.
(H) The percentage of emails during the previous quarter of
the year flagged as spam from political campaigns of
candidates belonging to the Democratic party.
=========================== NOTE ===========================
On page S2971, June 15, 2022, in the first column, the following
appears: (H) The percentage of emails during the previous . . . of
candidates belonging to the Democrat party.
The online Record has been corrected to read: (H) The percentage
of emails during the previous . . . of candidates belonging to the
Democratic party.
========================= END NOTE =========================
(I) The number of instances during the previous quarter in
which emails from political campaigns of candidates belonging
to the Democratic Party were flagged as spam by a filtering
algorithm without direction from the email account owner or
user.
(J) The percentage of emails during the previous quarter of
the year flagged as spam by a filtering algorithm without
direction from the email account owner or user for emails
from political campaigns of candidates belonging to the
Democrat party.
(K) A descriptive summary of the kinds of tools, practices,
actions, and techniques used by an operator of an email
service during the previous quarter in determining which
emails from political campaigns to flag as spam.
(3) Publication and format.--The operator of an email
service shall publish each quarterly report required under
this subsection with an open license, in a machine-readable
and open format, and in a location that is easily accessible
to consumers.
(c) Disclosure for Political Campaigns.--
(1) In general.--Beginning 3 months after the date of the
enactment of this Act, each operator of an email service
shall be required to disclose to a political campaign, upon
the request of the campaign and subject to paragraph (3), a
report that includes any of the information described in
paragraph (2) that is requested by the campaign.
(2) Content of the disclosure.--The information described
in this paragraph is the following:
(A) The number of instances during the previous quarter
when emails from the political campaign requesting the
information were flagged as spam.
(B) The percentage of emails sent from the political
campaign requesting the information that were flagged as spam
during the previous quarter.
(C) The number of instances during the previous calendar
quarter when emails from the political campaign requesting
the information were flagged as spam by a filtering
algorithm.
(D) The total number of emails sent from the political
campaign requesting the information that reached the intended
recipient's primary inbox.
(E) The percentage of emails sent from the political
campaign requesting the information that reached the intended
recipient's primary inbox.
(F) A descriptive summary as to why an email from the
political campaign requesting the information did not reach
the intended recipient's primary inbox.
(3) Frequency of requests.--A political campaign may not
request that an operator of an email service provide a report
containing any of the information described in paragraph (2)
more than--
(A) once per week during election years;
(B) twice per month during non-election years; and
(C) once a week in the 12 months preceding the date of a
special election in which a candidate associated with the
political campaign is seeking election.
(4) Best practices.--An operator of an email service shall
provide to a political campaign, upon request, best practices
on steps the political campaign should take to increase the
number of emails from the political campaign that reach the
intended recipient's primary inbox.
(5) Deadline for providing disclosure to political
campaigns.--An operator of an email service that receives a
request from a political campaign for a disclosure report
described in paragraph (1) or best practices described in
paragraph (4) shall provide such report or best practices to
the political campaign not later than 4 days after the
operator receives the request.
(d) Enforcement by the Federal Trade Commission.--
(1) Unfair or deceptive acts or practices.--A violation of
subsection (a), (b), or (c) shall be treated as a violation
of a rule defining an unfair or a 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 commission.--
(A) In general.--The Federal Trade 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 section.
(B) Privileges and immunities.--Any person who violates
subsection (a) 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) Authority preserved.--Nothing in this section shall be
construed to limit the authority of the Federal Trade
Commission under any other provision of law.
SEC. 3. DEFINITIONS.
In this Act:
(1) Filtering algorithm.--The term ``filtering algorithm''
means a computational process, including one derived from
algorithmic decision making, machine learning, statistical
analysis, or other data processing or artificial intelligence
techniques, used by an email service to identify and filter
emails sent to an email account.
(2) Operator.--
(A) In general.--The term ``operator'' means any person who
operates an email service and includes any person that wholly
owns a subsidiary entity that operates an email service.
(B) Exclusions.--Such term shall not include any person who
operates an email service if such service is wholly owned,
controlled, and operated by a person that--
(i) for the most recent 6-month period, did not employ more
than 500 employees; and
(ii) for the most recent 12-month period, averaged less
than $5,000,000,000 in annual gross receipts.
(3) Political campaign.--The term ``political campaign''
includes--
(A) an individual who is a candidate (as such term is
defined in section 301(2) of the Federal Election Campaign
Act of 1971 (52 U.S.C. 30101(2));
(B) an authorized committee (as such term is defined in
section 301(6) of such Act);
(C) a connected organization (as such term is defined in
section 301(7) of such Act);
(D) a national committee (as such term is defined in
section 301(15) of such Act);
(E) a State committee (as such term is defined in section
301(15) of such Act); and
(F) a joint fundraising committee that includes any entity
described in subparagraphs (A) through (E).
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