[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2031 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 2031
To preserve access to lawful content and prevent discrimination and
unfair methods of competition on the internet, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 10, 2021
Mr. Wicker introduced the following bill; which was read twice and
referred to the Committee on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To preserve access to lawful content and prevent discrimination and
unfair methods of competition 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 ``Promoting Rights and Online Speech
Protections to Ensure Every Consumer is Heard Act'' or the ``PRO-SPEECH
Act''.
SEC. 2. PRESERVING ACCESS TO LAWFUL CONTENT.
(a) In General.--Subject to subsection (b), an internet platform
may not engage in a practice that does any of the following:
(1) Blocks or otherwise prevents a user or entity from
accessing any lawful content, application, service, or device
that does not interfere with the internet platform's
functionality or pose a data privacy or data security risk to a
user.
(2) Degrades or impairs the access of a user or entity to
lawful internet traffic on the basis of content, application,
service, or use of a device that does not interfere with the
internet platform's functionality or pose a data privacy or
data security risk to a user.
(b) Exceptions.--
(1) Small internet platforms.--The prohibitions under
subsection (a) shall not apply to a small internet platform
unless--
(A) the Commission determines that the benefits of
expanding the application of such prohibitions to 1 or
more small internet platforms outweigh the costs; and
(B) the Director of the Office of Management and
Budget approves such cost-benefit analysis and
publishes such approval in the Federal Register.
(2) Publishers of content, applications, and services.--The
prohibitions under subsection (a) shall not apply to the extent
that an internet platform publicly proclaims to be a publisher,
insofar as the internet platform is acting as a publisher, of
any particular content, application, or service.
SEC. 3. NONDISCRIMINATION.
An internet platform may not take any action against a user or
entity based on racial, sexual, religious, political affiliation, or
ethnic grounds.
SEC. 4. PROHIBITIONS ON UNFAIR METHODS OF COMPETITION.
(a) In General.--An internet platform may not engage in an unfair
method of competition against any other internet platform (as
determined by the Commission under the Federal Trade Commission Act (15
U.S.C. 41 et seq.)).
(b) Presumed Unfair Methods of Competition.--For purposes of
subsection (a), the following actions shall be presumed to be an unfair
method of competition:
(1) Blocking or prohibiting use.--Any action taken by a
large internet platform that wholly blocks or prohibits an
internet platform that competes with the large internet
platform (or any affiliate of the large internet platform) from
making use of the large internet platform.
(2) Unreasonable discrimination.--Any action taken by a
large internet platform that unreasonably discriminates against
an internet platform that competes with the large internet
platform (or any affiliate of the large internet platform).
(c) Determination of Unfair Methods of Competition.--The Commission
may determine that an action taken by a large internet platform is
presumed to be an unfair method of competition if--
(1) the Commission establishes that--
(A) such action by a large internet platform--
(i) is anti-competitive and likely to
reduce competition, reduce quality of service,
or decrease innovation; and
(ii) is not likely to be remedied without
government intervention; and
(B) the benefits of such a determination outweigh
the costs; and
(2) the Director of the Office of Management and Budget
approves such cost-benefit analysis and publishes such approval
in the Federal Register.
SEC. 5. TRANSPARENCY.
(a) Required Disclosures.--
(1) In general.--Subject to subsection (b), an internet
platform shall disclose, on a publicly available and easily
accessible website, accurate information regarding the platform
management practices, performance characteristics, and
commercial terms of service of its app store, cloud computing
service, operating system, search engine, or social media
network sufficient to enable a reasonable user to make an
informed choice regarding the purchase or use of such service
and to develop, market, and maintain a product or service on
the internet platform.
(2) Required information.--The information to be disclosed
pursuant to paragraph (1) shall include the following:
(A) Platform management practices.--Information
regarding the platform management practices of an
internet platform shall include the following:
(i) General practices.--A description of
any content management or data management
practices.
(ii) App store, operating system, search
engine, or social media network.--With respect
to an app store, operating system, search
engine, or social media network, a description
of any practice--
(I) regarding how the internet
platform--
(aa) curates and targets
content to users;
(bb) promotes content,
services, or products,
including its own content,
services, or products;
(cc) moderates content; or
(dd) determines whether to
demonetize a user's use of the
internet platform by any means;
or
(II) that directly or indirectly
favors certain data or content over
other data or content, including
through use of techniques such as
content placement or prioritization--
(aa) to benefit an
affiliate; or
(bb) in exchange for
consideration, monetary or
otherwise.
(iii) Cloud computing service.--With
respect to a cloud computing service, a
description of any practice--
(I) regarding congestion
management, application-specific
behavior, device attachment, or data
privacy and data security; or
(II) that determines whether--
(aa) any content,
application, or service is
lawful; and
(bb) a device interferes
with the cloud computing
service's functionality or
poses an unreasonable data
privacy or data security risk
to a user.
(iv) Publishers.--
(I) Internet platforms.--With
respect to an internet platform that
publicly proclaims to be a publisher, a
description of any practice that blocks
or otherwise prevents a user or entity
from accessing any lawful content,
application, service, or device that
does not interfere with the internet
platform's functionality or pose a risk
of data privacy or data security to a
user.
(II) Affiliates.--With respect to
an internet platform that publicly
proclaims to be a publisher and is an
affiliate of a cloud computing service
or operating system, a description of
any practice that degrades or impairs a
user or entity's access to lawful
internet traffic on the basis of
content, application, service, or use
of a device that does not interfere
with the internet platform's
functionality or pose a risk to the
data privacy or data security of a
user.
(B) Performance characteristics.--Information
regarding the performance characteristics of an
internet platform shall include the following:
(i) General characteristics.--A general
description of the service, including the
service technology.
(ii) Cloud computing service.--With respect
to a cloud computing service, a description
of--
(I) the expected and actual access
speed and latency; and
(II) the capability of the service
to support real-time applications.
(iii) Service with required approval.--With
respect to an app store, cloud computing
service, or operating system that requires
approval before allowing an application to use
the internet platform--
(I) the average time for a
developer to receive such approval
after initial submission; and
(II) the timeline for the internet
platform to resolve complaints and the
outcome of any such resolution.
(C) Commercial terms.--Information regarding the
commercial terms of an internet platform shall include
a description of the fee disclosures, privacy
practices, and redress options for users, including the
following:
(i) Usage-based fees.--With respect to a
cloud computing service, any usage-based fees
or fees for early termination or additional
network services.
(ii) Approval fees.--With respect to an app
store, cloud computing service, or operating
system that requires approval before allowing
an application to use the internet platform,
any fees charged to those seeking such
approval.
(iii) Third-party fees.--With respect to an
app store, cloud computing service, or
operating system, any fees charged to or by
third parties associated with a user's decision
to purchase an application or other content
that uses such internet platform.
(iv) Prioritization fees.--With respect to
an app store, operating system, search engine,
or social media network, any fees charged for
the placement or prioritization of any content
or application.
(v) Privacy practices.--A description of
any data privacy practice that entails the
inspection of user-generated content or other
internet platform information and whether such
content or information is stored, provided to
third parties, or used for non-platform
management purposes.
(vi) Complaint resolution practices.--A
description of any practice for resolving the
complaint or question of a user.
(b) Applicability to Small Internet Platforms.--The requirements
under subsection (a) shall not apply to a small internet platform
unless--
(1) the Commission determines that the benefits of
expanding the application of such requirements to 1 or more
small internet platforms outweigh the costs; and
(2) the Director of the Office of Management and Budget
approves such cost-benefit analysis and publishes such approval
in the Federal Register.
SEC. 6. ENFORCEMENT.
(a) Enforcement Authority.--
(1) Unfair and deceptive acts or practice.--A violation of
section 2, 3, or 5 shall be treated as an unfair and deceptive
act or practice proscribed under section 5(a) of the Federal
Trade Commission Act (15 U.S.C. 45(a)).
(2) Unfair methods of competition.--Any person who violates
section 4 shall be liable for engaging in an unfair method of
competition under section 5(a) of the Federal Trade Commission
Act (15 U.S.C. 45(a)).
(b) Powers of the Commission.--
(1) In general.--Notwithstanding any other provision of
law, the Commission shall enforce 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) Privileges and immunities.--Notwithstanding any other
provision of law, any person who violates 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.).
(3) Authority preserved.--Nothing in this Act shall be
construed to limit the authority of the Commission under any
other provision of law.
(c) Complaints to the Commission.--
(1) In general.--Any individual alleging a violation of
this Act may submit to the Commission a complaint which briefly
states the facts surrounding such violation.
(2) Notice to internet platform.--Upon receiving a
complaint described in paragraph (1), the Commission shall
forward a statement of the complaint to the internet platform
that is the subject of the alleged violation.
(3) Requirement to address complaint.--Upon receiving a
forwarded complaint under paragraph (2), the internet platform
shall, within a reasonable time (as specified by the
Commission), either--
(A) make a reparation for any injury alleged to
have been caused in the complaint filed under paragraph
(1) and notify the Commission of such reparation; or
(B) submit to the Commission a written response to
the complaint.
(4) Reparation.--If the internet platform makes a
reparation under paragraph (3)(A) to the satisfaction of the
Commission, the Commission shall relieve the internet platform
of liability to the complainant for the particular violation of
law thus complained of.
(5) Investigation.--
(A) In general.--If the internet platform does not
make a sufficient reparation under paragraph (3)(A), or
if there appears to be any reasonable ground for
investigating such complaint, the Commission shall
investigate the matters complained of in such manner
and by such means as it shall deem proper.
(B) Direct damage.--No complaint shall at any time
be dismissed because of the absence of direct damage to
the complainant.
(C) Investigation conclusion.--With respect to any
investigation conducted pursuant to subparagraph (A),
the Commission shall issue an order concluding such
investigation not more than 5 months after the date on
which the complaint was filed.
SEC. 7. RELATIONSHIP BETWEEN FEDERAL AND STATE LAW.
No State or political subdivision of a State may adopt, maintain,
enforce, or continue in effect any law, regulation, rule, requirement,
or standard that conflicts with the requirements of this Act.
SEC. 8. DEFINITIONS.
In this Act:
(1) Affiliate.--The term ``affiliate'' means a person that
directly or indirectly owns or controls, is owned or controlled
by, or is under common ownership or control with, another
person.
(2) App store.--The term ``app store'' means a digital
distribution platform for computer applications that includes
at least 1 application from a person unaffiliated with the
operator of the digital distribution platform.
(3) Cloud computing service.--The term ``cloud computing
service'' means a service offering on-demand network access to
a shared pool of configurable computing resources (such as any
network, server, storage, application, or service) that
generally can be provisioned with minimal management effort or
service provider interaction.
(4) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(5) Internet platform.--The term ``internet platform''
means an entity that owns or operates, either directly or
through an affiliate, an app store, a cloud computing service,
an operating system, a search engine, or a social media
network.
(6) Large internet platform.--The term ``large internet
platform'' means an internet platform with equal to or more
than--
(A) 100,000,000 global active users; or
(B) $500,000,000 in annual revenues, including
direct user fees, advertising revenues, or other
revenues associated with an app store, a cloud
computing service, an operating system, a search
engine, or a social media network.
(7) Operating system.--The term ``operating system'' means
a computer program, implemented in either software or firmware,
that acts as an intermediary between users of a computer and
the computer hardware, providing an environment in which a user
can execute, operate, or otherwise utilize an application.
(8) Own.--The term ``own'' means to hold an equity interest
(or the equivalent thereof) of more than 10 percent.
(9) Search engine.--The term ``search engine'' means a
technology that enables a user to initiate a search query for
particular information using the internet and that is capable
of returning at least 1 search result unaffiliated with the
owner or operator of the search engine.
(10) Small internet platform.--The term ``small internet
platform'' means an internet platform that has--
(A) fewer than 100,000,000 global active users; and
(B) less than $500,000,000 in annual revenues,
including direct user fees, advertising revenues, or
other revenues associated with an app store, a cloud
computing service, an operating system, a search
engine, or a social media network.
(11) Social media network.--
(A) In general.--The term ``social media network''
means an internet-enabled network that hosts any
information, comment, message, still image, or moving
image posted by a user to facilitate interpersonal
communication between or among users.
(B) Exception.--Such term does not include
electronic mail or an online service, application, or
website for which the hosting of such information or
other content is incidental to the provision of news,
sports, entertainment, or other information not
generated by users.
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