[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.

[[Page S2970]]

  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.

[[Page S2971]]

       (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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