[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6083 Introduced in House (IH)]
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117th CONGRESS
1st Session
H. R. 6083
To prohibit the use of exploitative and deceptive practices by large
online operators and to promote consumer welfare in the use of
behavioral research by such providers.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 30, 2021
Ms. Blunt Rochester (for herself and Mr. Gonzalez of Ohio) introduced
the following bill; which was referred to the Committee on Energy and
Commerce
_______________________________________________________________________
A BILL
To prohibit the use of exploitative and deceptive practices by large
online operators and to promote consumer welfare in the use of
behavioral research by such providers.
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 ``Deceptive Experiences To Online
Users Reduction Act'' or the ``DETOUR Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Behavioral or psychological experiment or research.--
The term ``behavioral or psychological experiment or research''
means the study, including through human experimentation, of
overt or observable actions or mental phenomena inferred from
behavior, including interactions between and among individuals
and the activities of social groups.
(2) Child.--The term ``child'' has the meaning given such
term in section 1302 of the Children's Online Privacy
Protection Act of 1998 (15 U.S.C. 6501).
(3) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(4) Compulsive usage.--The term ``compulsive usage'' means
any response stimulated by external factors that causes an
individual to engage in repetitive behavior causing
psychological distress, loss of control, anxiety, depression,
or harmful stress responses.
(5) Independent review board.--The term ``independent
review board'' means a board, committee, or other group that
serves to protect the welfare and privacy of users and is
formally designated by a large online operator to review, to
approve the initiation of, and to conduct periodic review of,
any research by, or at the direction or discretion of, a large
online operator, involving human subjects.
(6) Informed consent.--The term ``informed consent''--
(A) means the express, affirmative consent freely
given by a user, in which such user is provided a clear
and conspicuous description--
(i) of a process by which a user is
provided adequate information prior to being
included in any behavioral or psychological
experiment or study in order to allow for an
informed decision about voluntary participation
in such a behavioral or psychological research
experiment or research; and
(ii) ensuring the understanding by such
user of the furnished information and any
associated benefits, risks, or consequences of
participation prior to obtaining the voluntary
agreement to participate by the user; and
(B) does not include--
(i) the consent of a child; or
(ii) the consent to a provision contained
in a general contract or service agreement.
(7) Large online operator.--The term ``large online
operator'' means any person that--
(A) provides an online service;
(B) has more than 100,000,000 authenticated users
of an online service in any 30-day period; and
(C) is subject to the jurisdiction of the
Commission under the Federal Trade Commission Act (15
U.S.C. 41 et seq.).
(8) Online service.--The term ``online service'' means a
website or a service, other than an internet access service,
that is made available to the public over the internet,
including a social network, a search engine, or an email
service.
(9) User.--The term ``user'' means any individual who
engages with an online service.
(10) User data.--The term ``user data'' means any
information relating to an identified or identifiable
individual user, whether directly submitted to the large online
operator by the user or derived from the observed activity of
the user by the large online operator.
SEC. 3. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RELATING TO THE
MANIPULATION OF USER INTERFACES.
(a) Conduct Prohibited.--It shall be unlawful for any large online
operator--
(1) to design, modify, or manipulate a user interface with
the purpose or substantial effect of obscuring, subverting, or
impairing user autonomy, decision making, or choice to obtain
consent or user data;
(2) to subdivide or segment consumers of online services
into groups for the purposes of behavioral or psychological
experiment or research of users of an online service, except
with the informed consent of each user involved; or
(3) to design, modify, or manipulate a user interface on a
website or online service, or portion thereof, that is directed
to an individual under the age of 13, with the purpose or
substantial effect of causing, increasing, or encouraging
compulsive usage, inclusive of video auto-play functions
initiated without the consent of a user.
(b) Duties of Large Online Operators.--Any large online operator
that engages in any form of behavioral or psychological experiment or
research based on the activity or data of its users shall do each of
the following:
(1) The large online operator shall disclose to its users
on a routine basis, but not less than once each 90 days, the
general purpose of any such behavioral or psychological
experiment or research, to each user whose user data is or was
during the previous 90-day period subject to or included in any
behavioral or psychological experiment or research.
(2) The large online operator shall disclose to the public
on a routine basis, but not less than once each 90 days, any
experiments or studies with the purposes of promoting
engagement or product conversion being currently undertaken, or
concluded since the prior disclosure.
(3) The large online operator shall present the disclosures
described in paragraphs (1) and (2) in a manner that--
(A) is clear, conspicuous, context-appropriate, and
easily accessible; and
(B) is not deceptively obscured.
(4)(A) Subject to subparagraph (B), the large online
operator shall remove and delete all data obtained from
affected users in the course of a behavioral or psychological
experiment or research if the large online operator--
(i) determines (or determines that it has reason to
believe) that the informed consent for the processing
of user data for such behavioral or psychological
experiment or research was inappropriately acquired
from such users; and
(ii) is unable to obtain within 2 business days of
such determination the appropriate informed consent.
(B) If the large online operator is unable to remove and
delete user data pursuant to subparagraph (A), the large online
operator shall discontinue the related behavioral or
psychological experiment or research.
(5) The large online operator shall establish an
Independent Review Board for any behavioral or psychological
experiment or research, of any purpose, conducted on users or
on the basis of user activity or data, which shall review and
have authority to approve, require modification in, or
disapprove all behavioral or psychological experiments or
research.
(6) The large online operator shall ensure that any
Independent Review Board established under paragraph (5) shall
register with the Commission, including providing to the
Commission--
(A) the names and resumes of every Board member;
(B) the composition and reporting structure of the
Board to the management of the operator;
(C) the process by which the Board is to be
notified of proposed studies or modifications along
with the processes by which the board is capable of
vetoing or amending such proposals;
(D) any compensation provided to board members; and
(E) any conflict of interest that might exist
concerning a board member's participation in the Board.
(c) Registered Professional Standards Body.--
(1) In general.--An association of large online operators
may register as a professional standards body by filing with
the Commission an application for registration in such form as
the Commission, by rule, may prescribe containing the rules of
the association and such other information and documents as the
Commission, by rule, may prescribe as necessary or appropriate
in the public interest or for protecting the welfare of users
of large online operators.
(2) Professional standards body.--An association of large
online operators may not register as a professional standards
body unless the Commission determines that--
(A) the association is so organized and has the
capacity to enforce compliance by its members and
persons associated with its members, with the
provisions of this Act;
(B) the rules of the association provide that any
large online operator may become a member of such
association;
(C) the rules of the association ensure a fair
representation of its members in the selection of its
directors and administration of its affairs and provide
that one or more directors shall be representative of
users and not be associated with, or receive any direct
or indirect funding from, a member of the association
or any large online operator;
(D) the rules of the association are designed to
prevent exploitative and manipulative acts or
practices, to promote transparent and fair principles
of technology development and design, to promote
research in keeping with best practices of study design
and informed consent, and to continually evaluate
industry practices and issue contractually binding
guidance consistent with the objectives of this Act;
(E) the rules of the association provide that its
members and persons associated with its members shall
be appropriately disciplined for violation of any
provision of this Act, the rules or regulations
thereunder, or the rules of the association, by
expulsion, suspension, limitation of activities,
functions, fine, censure, being suspended or barred
from being associated with a member, or any other
appropriate sanction; and
(F) the rules of the association are in accordance
with the provisions of this Act, and, in general,
provide a fair procedure for the disciplining of
members and persons associated with members, the denial
of membership to any person seeking membership therein,
the barring of any person from becoming associated with
a member thereof, and the prohibition or limitation by
the association of any person with respect to access to
services offered by the association or a member
thereof.
(3) Responsibilities and activities.--
(A) Bright-line rules.--An association shall--
(i) develop, on a continuing basis,
guidance and bright-line rules for the
development and design of technology products
of large online operators consistent with
subparagraph (B); and
(ii) notify the Commission of such guidance
and bright-line rules.
(B) Safe harbors.--In formulating guidance under
subparagraph (A), the association shall define conduct
that does not have the purpose or substantial effect of
subverting or impairing user autonomy, decision making,
or choice, or of cultivating compulsive usage for a
child such as--
(i) de minimis user interface changes
derived from testing consumer preferences,
including different styles, layouts, or text,
where such changes are not done with the
purpose of obtaining user consent or user data;
(ii) algorithms or data outputs outside the
control of a large online operator or its
affiliates; and
(iii) establishing default settings that
provide enhanced privacy protection to users or
otherwise enhance their autonomy and decision-
making ability.
(d) Enforcement by the Commission.--
(1) Unfair or deceptive acts or practices.--
(A) In general.--A violation of subsection (a) or
(b) 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)).
(B) Determination.--For purposes of enforcement of
this Act, the Commission shall determine an act or
practice is unfair or deceptive if the act or
practice--
(i) has the purpose, or substantial effect,
of subverting or impairing user autonomy,
decision making, or choice to obtain consent or
user data; or
(ii) has the purpose, or substantial
effect, of cultivating compulsive usage by a
child.
(2) Powers of the commission.--
(A) In general.--The Commission shall enforce this
Act and the regulations promulgated 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.
(B) Privileges and immunities.--Any person 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) Authority preserved.--Nothing in this Act shall
be construed to limit the authority of the Commission
under any other provision of law.
(D) Regulations.--Not later than 1 year after the
date of enactment of this Act, the Commission shall
promulgate regulations under section 553 of title 5,
United States Code, that--
(i) establish rules and procedures for
obtaining the informed consent of users;
(ii) establish rules for the registration,
formation, oversight, and management of the
independent review boards, including standards
that ensure effective independence of such
entities from improper or undue influence by a
large online operator;
(iii) establish rules for the registration,
formation, oversight, and management of
professional standards bodies, including
procedures for the regular oversight of such
bodies and revocation of their designation;
(iv) in consultation with a professional
standards body established under subsection
(c), define conduct that does not have the
purpose or substantial effect of subverting or
impairing user autonomy, decision making, or
choice, or of cultivating compulsive usage for
a child such as--
(I) de minimis user interface
changes derived from testing consumer
preferences, including different
styles, layouts, or text, where such
changes are not done with the purpose
of obtaining user consent or user data;
(II) algorithms or data outputs
outside the control of a large online
operator or its affiliates; and
(III) establishing default settings
that provide enhanced privacy
protection to users or otherwise
enhance their autonomy and decision-
making ability.
(3) Safe harbor.--The Commission may not bring an
enforcement action under this Act against any large online
operator that relied in good faith on the guidance of a
professional standards body.
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