Online Consumer Protection Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 1090 To require software marketplace operators and developers of covered foreign software to provide to consumers a warning prior to the download of such software, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 18, 2021 Mr. BANKS introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To require software marketplace operators and developers of covered foreign software to provide to consumers a warning prior to the download of such software, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Online Consumer Pro- 4 tection Act of 2021’’. 5 VerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1090.IH H1090 khammond on DSKJM1Z7X2PROD with BILLS 2 •HR 1090 IH SEC. 2. CONSUMER WARNING AND ACKNOWLEDGMENT FOR 1 DOWNLOAD OF COVERED FOREIGN SOFT- 2 WARE. 3 (a) IN GENERAL.—A software marketplace operator 4 or developer of covered foreign software may not— 5 (1) permit a consumer to download covered for- 6 eign software unless, before the download begins— 7 (A) a warning that meets the requirements 8 of subsection (b) is displayed to the consumer, 9 separately from any privacy policy, terms of 10 service, or other notice; and 11 (B) the consumer is required to choose (by 12 taking an affirmative step such as clicking on 13 a button) between the options of— 14 (i) acknowledging such warning and 15 proceeding with the download; or 16 (ii) cancelling the download; or 17 (2) make available covered foreign software for 18 download by consumers unless the operator or devel- 19 oper has in place procedures to ensure compliance 20 with paragraph (1). 21 (b) REQUIREMENTS FOR WARNING.— 22 (1) IN GENERAL.—A warning meets the re- 23 quirements of this subsection if such warning reads 24 as follows (with the italicized language being re- 25 placed and the other bracketed language being in- 26 VerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1090.IH H1090 khammond on DSKJM1Z7X2PROD with BILLS 3 •HR 1090 IH cluded or deleted, as appropriate for the covered for- 1 eign software regarding which the warning is being 2 given, and the brackets removed): ‘‘Warning: [Name 3 of Covered Foreign Software] is developed by [Name 4 of Developer of Covered Foreign Software], which [is 5 controlled by a company that] [is organized under 6 the laws of]/[conducts its principal operations in]/[is 7 organized under the laws of and conducts its prin- 8 cipal operations in] [Name of Covered Country]. 9 Please either [insert description of how to acknowl- 10 edge the warning and proceed with the download] if 11 you wish to proceed with the download or [insert de- 12 scription of how to cancel the download] if you wish 13 to cancel the download.’’. 14 (2) ALTERNATIVE WARNINGS.—The Commis- 15 sion may by regulation specify that a warning other 16 than the warning provided in paragraph (1) meets 17 the requirements of this subsection, as the Commis- 18 sion considers appropriate. 19 (c) LIABILITY OF SOFTWARE DEVELOPER.—In the 20 case of a violation of subsection (a) by a software market- 21 place operator, if the developer of the covered foreign soft- 22 ware with respect to which the violation was committed 23 did not inform the software marketplace operator that the 24 software is covered foreign software, the developer (as well 25 VerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1090.IH H1090 khammond on DSKJM1Z7X2PROD with BILLS 4 •HR 1090 IH as the software marketplace operator) shall be considered 1 to have committed the violation. 2 (d) ENFORCEMENT BY FEDERAL TRADE COMMIS- 3 SION.— 4 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 5 TICES.—A violation of this section or a regulation 6 promulgated under this section shall be treated as a 7 violation of a regulation under section 18(a)(1)(B) 8 of the Federal Trade Commission Act (15 U.S.C. 9 57a(a)(1)(B)) regarding unfair or deceptive acts or 10 practices. 11 (2) POWERS OF COMMISSION.—The Commis- 12 sion shall enforce this section and the regulations 13 promulgated under the section in the same manner, 14 by the same means, and with the same jurisdiction, 15 powers, and duties as though all applicable terms 16 and provisions of the Federal Trade Commission Act 17 (15 U.S.C. 41 et seq.) were incorporated into and 18 made a part of this Act. Any person who violates 19 this section or a regulation promulgated under this 20 section shall be subject to the penalties and entitled 21 to the privileges and immunities provided in the 22 Federal Trade Commission Act. 23 VerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1090.IH H1090 khammond on DSKJM1Z7X2PROD with BILLS 5 •HR 1090 IH (3) REGULATIONS.—The Commission may pro- 1 mulgate regulations under section 553 of title 5, 2 United States Code, to carry out this section. 3 (e) CRIMINAL OFFENSE.— 4 (1) CORPORATE OFFENSE.—Whoever, being a 5 software marketplace operator or developer of cov- 6 ered foreign software, knowingly violates subsection 7 (a) shall be fined $50,000 for each violation. 8 (2) INDIVIDUAL OFFENSE.—Whoever, being an 9 officer of a software marketplace operator or devel- 10 oper of covered foreign software, causes a violation 11 of subsection (a) with the intent to conceal the coun- 12 try in which software is developed, shall be fined 13 under title 18, United States Code, imprisoned not 14 more than 2 years, or both. 15 (3) APPLICATION.—This subsection shall apply 16 with respect to conduct occurring during the period 17 beginning on the date of enactment of this Act and 18 ending on the date on which this section ceases to 19 have any force or effect under subsection (g). 20 (f) REPORT TO CONGRESS.—Not later than 8 years 21 after the date of the enactment of this Act, the Commis- 22 sion, in consultation with the Attorney General, shall sub- 23 mit to Congress a report on the implementation and en- 24 forcement of this section. 25 VerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1090.IH H1090 khammond on DSKJM1Z7X2PROD with BILLS 6 •HR 1090 IH (g) SUNSET.—This section shall cease to have any 1 force or effect on the date that is 10 years after the date 2 of the enactment of this Act. 3 (h) DEFINITIONS.—In this section: 4 (1) COMMISSION.—The term ‘‘Commission’’ 5 means the Federal Trade Commission. 6 (2) COVERED COUNTRY.— 7 (A) IN GENERAL.—The term ‘‘covered 8 country’’ means— 9 (i) China, Russia, North Korea, Iran, 10 Syria, and Cuba; 11 (ii) any other country the government 12 of which the Secretary of State determines 13 has repeatedly provided support for inter- 14 national terrorism pursuant to— 15 (I) section 1754(c)(1)(A) of the 16 Export Control Reform Act of 2018 17 (50 U.S.C. 4318(c)(1)(A)); 18 (II) section 620A of the Foreign 19 Assistance Act of 1961 (22 U.S.C. 20 2371); 21 (III) section 40 of the Arms Ex- 22 port Control Act (22 U.S.C. 2780); or 23 (IV) any other provision of law; 24 and 25 VerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1090.IH H1090 khammond on DSKJM1Z7X2PROD with BILLS 7 •HR 1090 IH (iii) subject to subparagraph (B), any 1 other country designated by the Attorney 2 General or the Commission based on ex- 3 pert knowledge of the sources of dangerous 4 software. 5 (B) PROCESS.— 6 (i) DESIGNATION.—Upon designating 7 a country under subparagraph (A)(iii), the 8 Attorney General or the Commission (in 9 this clause referred to as the ‘‘notifying 10 party’’) shall transmit a notification of the 11 designation to the Commission or the At- 12 torney General, as the case may be (in this 13 clause referred to as the ‘‘notified party’’). 14 Such designation shall become effective on 15 the day that is 30 days after the date on 16 which such notification is transmitted, un- 17 less, before such day, the notified party 18 transmits to the notifying party and the 19 Secretary of State an objection. The Sec- 20 retary shall, not later than 30 days after 21 the date on which the Secretary receives 22 such objection, determine whether to des- 23 ignate such country under such subpara- 24 graph. 25 VerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1090.IH H1090 khammond on DSKJM1Z7X2PROD with BILLS 8 •HR 1090 IH (ii) REVOCATION OF DESIGNATION.— 1 (I) JOINT ACTION REQUIRED.— 2 Except as provided in subclause (II), 3 the designation of a country under 4 subparagraph (A)(iii) may only be re- 5 voked by the Attorney General and 6 the Commission, acting jointly. 7 (II) DISPUTE RESOLUTION.—In 8 the case of a dispute between the At- 9 torney General and the Commission 10 regarding whether to revoke the des- 11 ignation of a country under subpara- 12 graph (A)(iii), the Attorney General 13 or the Commission may transmit to 14 the Secretary of State a notification 15 of such dispute. The Secretary shall, 16 not later than 30 days after the date 17 on which the Secretary receives such 18 notification, determine whether to re- 19 voke such designation. 20 (3) COVERED FOREIGN SOFTWARE.—The term 21 ‘‘covered foreign software’’ means software that is 22 developed by— 23 (A) a person (other than an individual)— 24 VerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1090.IH H1090 khammond on DSKJM1Z7X2PROD with BILLS 9 •HR 1090 IH (i) who is organized under the laws of 1 a covered country; or 2 (ii) whose principal operations are 3 conducted in a covered country; or 4 (B) a person (other than an individual) 5 that is, directly or indirectly, controlled by a 6 person described in subparagraph (A). 7 (4) MOBILE APPLICATION.—The term ‘‘mobile 8 application’’ means a software program that runs on 9 the operating system of a smartphone, tablet com- 10 puter, or similar mobile electronic device. 11 (5) SOFTWARE.—The term ‘‘software’’ means 12 any computer software program, including a mobile 13 application. 14 (6) SOFTWARE MARKETPLACE OPERATOR.— 15 The term ‘‘software marketplace operator’’ means a 16 person who, for a commercial purpose, operates an 17 online store or marketplace through which software 18 is made available for download by consumers. 19 Æ VerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H1090.IH H1090 khammond on DSKJM1Z7X2PROD with BILLS