[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3411 Introduced in Senate (IS)]
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116th CONGRESS
2d Session
S. 3411
To keep children safe and protect their interests on the internet, and
for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 5, 2020
Mr. Markey (for himself and Mr. Blumenthal) introduced the following
bill; which was read twice and referred to the Committee on Commerce,
Science, and Transportation
_______________________________________________________________________
A BILL
To keep children safe and protect their interests on the internet, 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 ``Kids Internet Design and Safety
Act'' or the ``KIDS Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Children increasingly consume digital entertainment on
the internet and are uniquely susceptible to manipulation
online, given their lack of important neurological and
psychological mechanisms which are developed later in
adulthood.
(2) Today's digital media environment, which is constantly
evolving and now includes high-tech experiences, such as
augmented reality and virtual reality, is largely designed in
non-transparent ways to ensure children interact with content
that reflect the interests and goals of content creators,
platforms, and marketers.
(3) Artificial intelligence, machine learning, and other
complex systems are used to make continuous decisions about how
online content for children can be personalized to increase
engagement.
(4) Online companies gather, analyze, and use data for
behavioral marketing directed at children.
(5) Companies employ sophisticated strategies, including
neuromarketing, to affect consumer behavior and manipulate
decision making.
(6) Branded content in various forms of multimedia,
including native advertising and influencer marketing, exposes
children to marketing that is inherently manipulative or
purposely disguised as entertainment or other information.
SEC. 3. DEFINITIONS.
(a) In General.--In this Act:
(1) Augmented reality.--The term ``augmented reality''
means an application or web-based experience utilizing a camera
to change or enhance the user's view of the real world.
(2) Branded content.--The term ``branded content'' means
commercial content created for, and distributed on, a platform
in such a way that the line between entertainment and
advertising becomes unclear in order to generate a positive
view of the brand.
(3) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(4) Covered user.--The term ``covered user'' means an
individual under the age of 16.
(5) Directed to children.--The term ``directed to
children'' means the targeting of covered users by a platform,
as demonstrated by, with respect to such platform--
(A) its subject matter;
(B) its visual content;
(C) the use of animated characters or child-
oriented activities for children and related
incentives;
(D) music or other audio content;
(E) the age of models used;
(F) the presence of--
(i) child celebrities; or
(ii) celebrities who appeal to covered
users;
(G) the language used;
(H) advertising content used on, or used to
advertise, such platform; or
(I) reliable empirical evidence relating to--
(i) the composition of the audience of such
platform; and
(ii) the intended audience of such
platform.
(6) Host-selling.--The term ``host-selling'' refers to
commercial video content that features the same characters or
individuals as in the adjacent noncommercial content.
(7) Influencer marketing.--The term ``influencer
marketing'' means a tactic by which a brand or agency or
publisher works with individuals who are deemed to have the
potential to create engagement, drive conversation, or sell
products or services with the intended target audience, in
order to drive brand messages.
(8) Manipulation.--The term ``manipulation'' means design
strategies, product settings, and product architecture targeted
to cognitive vulnerabilities with the intention or effect of
pushing the user to make choices to their detriment and the
operator's benefit.
(9) Native advertising.--The term ``native advertising''
means a form of paid media where the advertising experience
follows the natural form and function of the user experience in
which it is placed.
(10) Neuromarketing.--The term ``neuromarketing'' means a
subfield of marketing that attempts to predict and potentially
manipulate consumer behavior and decision making based on
analysis of brain patterns.
(11) Operator.--
(A) In general.--The term ``operator'' means any
person who operates a platform, including any person
offering products or services for sale through that
platform, involving commerce--
(i) among the several States or with one or
more foreign nations;
(ii) in any territory of the United States
or in the District of Columbia, or between any
such territory and--
(I) another such territory; or
(II) any State or foreign nation;
or
(iii) between the District of Columbia and
any State, territory, or foreign nation.
(B) Exception.--The term ``operator'' does not
include any nonprofit entity that would otherwise be
exempt from coverage under section 5 of the Federal
Trade Commission Act (15 U.S.C. 45).
(12) Person.--The term ``person'' means any individual,
partnership, corporation, trust, estate, cooperative,
association, or other entity.
(13) Platform.--The term ``platform'' means a website,
online service, online application, or mobile application which
is operated for commercial purposes.
(14) Virtual reality.--The term ``virtual reality'' means
an application or web-based experience utilizing a camera to
create an immersive environment that mimics the real world,
usually via a headset.
SEC. 4. REGULATION OF ACTS AND PRACTICES ON CHILD-DIRECTED PLATFORMS.
(a) Prohibition on Certain Features.--It is unlawful for an
operator of a platform directed to children to incorporate any of the
following features:
(1) Any auto-play setting that, without input from the
covered user, commences additional video content directly
following the video content initially selected by the user.
(2) Push alerts that urge a covered user to spend more time
engaged with the platform when they are not actively using it.
(3) Displaying the quantity of positive engagement or
feedback that a covered user has received from other users.
(4) Any design feature or setting that unfairly encourages
a covered user, due to their age or inexperience, to make
purchases, submit content, or spend more time engaging with the
platform.
(5) Any feature that provides a covered user with badges or
other visual award symbols based on elevated levels of
engagement with the platform.
(b) Prohibition on Amplification of Certain Content; User Reporting
Mechanism.--It shall be unlawful for an operator of a platform directed
to children, or a platform for which the operator has constructive
knowledge that covered users use its platform, to--
(1) amplify, promote, or encourage covered users'
consumption of videos and other forms of content that involve--
(A) sexual material;
(B) physical or emotional violence, including
bullying;
(C) adult activities, including gambling; or
(D) other dangerous, abusive, exploitative, or
wholly commercial content; or
(2) fail to implement a mechanism for users to report
suspected violations of any requirement under paragraph (1).
(c) Prohibition on Certain Advertising Methods.--
(1) In general.--It shall be unlawful for an operator of a
platform directed to children to--
(A) direct content that includes host-selling to
covered users;
(B) expose covered users to program-length
advertisements;
(C) direct branded content or native advertising to
covered users;
(D) direct online advertising or material with
considerable commercial content involving alcohol,
nicotine, or tobacco to covered users;
(E) expose covered users to online advertising or
material with considerable commercial content with any
imbedded interactive elements that take advantage of
covered users' inexperience or credulity in
noncommercial child-directed content; or
(F) direct content that includes product placement
to covered users.
(2) Program-length advertisement.--The term ``program-
length advertisement'' shall be defined by the Commission
through regulation or other public guidance.
(d) Prohibition on Use of Personal Information.--It shall be
unlawful for an operator of a platform directed to children to use age
verification information collected from covered users for any
commercial purpose.
(e) Regulations.--The Commission shall promulgate regulations in
accordance with section 553 of title 5, United States Code, to require
any operator of a platform directed to children to incorporate online
visual elements or other indicators that distinguish commercial content
from noncommercial content.
SEC. 5. MARKETING AND COMMERCIALIZATION.
(a) Content Labeling System Report.--Not later than the date that
is 1 year after the date of enactment of this Act, the Commission shall
submit to Congress a report--
(1) containing recommendations for a labeling system to
allow parents to identify noncommercial, educational, and
enriching content for covered users online; and
(2) address considerations regarding how such labeling
system should--
(A) analyze content based on evidence-based
criteria;
(B) employ an easy-to-understand visual cue for
parents to identify content described in paragraph (1);
(C) receive regular review to determine its
effectiveness; and
(D) develop a mechanism for users to report to the
Commission complaints of mislabeled content and for the
Commission to remedy such instances of mislabeled
content.
(b) Consultation.--The report described in subsection (a) shall be
developed by the Commission in consultation with an advisory board, to
be created and convened by the Commission, which is comprised of
experts in child development, child health, education, and media.
SEC. 6. TRANSPARENCY AND AUDITING.
(a) Transparency.--The Commission shall promulgate regulations in
accordance with section 553 of title 5, United States Code, requiring
an operator of a platform which is directed to children to publish and
maintain a publicly accessible digital record of the viewable or
playable content of each such platform.
(b) Annual Platform Audits.--The regulations promulgated pursuant
to subsection (a) shall include the establishment of an annual audit
process, to be conducted during the 5-year period subsequent to the
date of enactment of this Act, for each of the 25 platforms directed to
children with the highest total number of child users, to evaluate the
level of compliance by each such platform with respect to the
requirements under this Act.
(c) Report.--The Commission shall issue annual reports to Congress
based on the audits described in subsection (b) that--
(1) describe the level of compliance by the platforms
described in such subsection with respect to the requirements
under this Act; and
(2) provide recommendations for such legislation and
administrative actions as the Commission determines appropriate
based on the audit findings.
SEC. 7. GRANT PROGRAM.
(a) Establishment.--
(1) In general.--The Secretary of Commerce shall provide
grants to eligible persons to foster the creation and promotion
of advertisement-free and educational online content for
covered users, such as videos and applications.
(2) Eligible person.--For purposes of this section, the
term ``eligible person'' means a person that has submitted an
application, as approved by the Secretary of Commerce pursuant
to the eligibility requirements developed under subsection (b),
for the creation and promotion of advertisement-free and
educational online content for covered users.
(b) Advisory Council.--The Secretary shall establish and convene an
Advisory Council on Children's Online Content, which shall be--
(1) comprised of experts in education, child development,
psychology, online media, and other related disciplines; and
(2) tasked with developing evidence-based criteria for
grant eligibility and grant distribution.
(c) Authorization of Appropriations.--
(1) In general.--To carry out this section, there is
authorized to be appropriated--
(A) for fiscal year 2021, $4,000,000;
(B) for fiscal year 2022, $8,000,000;
(C) for fiscal year 2023, $10,000,000; and
(D) for fiscal year 2024, $12,000,000.
(2) Availability of funds.--Any amount appropriated under
this subsection for any fiscal year shall remain available for
the purposes of carrying out any application approved during
such fiscal year for an additional period of 1 year after the
end of such fiscal year.
SEC. 8. ADMINISTRATION AND ENFORCEMENT.
(a) In General.--This Act shall be enforced by the Commission under
the Federal Trade Commission Act (15 U.S.C. 41 et seq.).
(b) Actions by Commission.--
(1) In general.--The Commission shall prevent any person
from violating this Act or any regulation promulgated by the
Commission 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) Penalties and privileges.--Any person that violates
this Act or any regulation promulgated under the Act shall be
subject to the penalties and entitled to the privileges and
immunities provided in the Federal Trade Commission Act in the
same manner, by the same means, and with the same jurisdiction,
power, and duties, as though all applicable terms and
provisions of the Federal Trade Commission Act were
incorporated into and made a part of this Act.
(c) Civil Penalty.--A violation of the Act, or a rule promulgated
under the Act, 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)).
(d) Effect on Other Laws.--Nothing contained in this Act shall be
construed to limit the authority of the Commission under any other
provisions of law.
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