PRO-SPEECH Act

II 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 discrimina- tion and unfair methods of competition on the internet, 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 ‘‘Promoting Rights and 4 Online Speech Protections to Ensure Every Consumer is 5 Heard Act’’ or the ‘‘PRO-SPEECH Act’’. 6 SEC. 2. PRESERVING ACCESS TO LAWFUL CONTENT. 7 (a) IN GENERAL.—Subject to subsection (b), an 8 internet platform may not engage in a practice that does 9 any of the following: 10 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 2 •S 2031 IS (1) Blocks or otherwise prevents a user or enti- 1 ty from accessing any lawful content, application, 2 service, or device that does not interfere with the 3 internet platform’s functionality or pose a data pri- 4 vacy or data security risk to a user. 5 (2) Degrades or impairs the access of a user or 6 entity to lawful internet traffic on the basis of con- 7 tent, application, service, or use of a device that does 8 not interfere with the internet platform’s functional- 9 ity or pose a data privacy or data security risk to 10 a user. 11 (b) EXCEPTIONS.— 12 (1) SMALL INTERNET PLATFORMS.—The prohi- 13 bitions under subsection (a) shall not apply to a 14 small internet platform unless— 15 (A) the Commission determines that the 16 benefits of expanding the application of such 17 prohibitions to 1 or more small internet plat- 18 forms outweigh the costs; and 19 (B) the Director of the Office of Manage- 20 ment and Budget approves such cost-benefit 21 analysis and publishes such approval in the 22 Federal Register. 23 (2) PUBLISHERS OF CONTENT, APPLICATIONS, 24 AND SERVICES.—The prohibitions under subsection 25 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 3 •S 2031 IS (a) shall not apply to the extent that an internet 1 platform publicly proclaims to be a publisher, insofar 2 as the internet platform is acting as a publisher, of 3 any particular content, application, or service. 4 SEC. 3. NONDISCRIMINATION. 5 An internet platform may not take any action against 6 a user or entity based on racial, sexual, religious, political 7 affiliation, or ethnic grounds. 8 SEC. 4. PROHIBITIONS ON UNFAIR METHODS OF COMPETI- 9 TION. 10 (a) IN GENERAL.—An internet platform may not en- 11 gage in an unfair method of competition against any other 12 internet platform (as determined by the Commission 13 under the Federal Trade Commission Act (15 U.S.C. 41 14 et seq.)). 15 (b) PRESUMED UNFAIR METHODS OF COMPETI- 16 TION.—For purposes of subsection (a), the following ac- 17 tions shall be presumed to be an unfair method of competi- 18 tion: 19 (1) BLOCKING OR PROHIBITING USE.—Any ac- 20 tion taken by a large internet platform that wholly 21 blocks or prohibits an internet platform that com- 22 petes with the large internet platform (or any affil- 23 iate of the large internet platform) from making use 24 of the large internet platform. 25 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 4 •S 2031 IS (2) UNREASONABLE DISCRIMINATION.—Any ac- 1 tion taken by a large internet platform that unrea- 2 sonably discriminates against an internet platform 3 that competes with the large internet platform (or 4 any affiliate of the large internet platform). 5 (c) DETERMINATION OF UNFAIR METHODS OF COM- 6 PETITION.—The Commission may determine that an ac- 7 tion taken by a large internet platform is presumed to be 8 an unfair method of competition if— 9 (1) the Commission establishes that— 10 (A) such action by a large internet plat- 11 form— 12 (i) is anti-competitive and likely to re- 13 duce competition, reduce quality of service, 14 or decrease innovation; and 15 (ii) is not likely to be remedied with- 16 out government intervention; and 17 (B) the benefits of such a determination 18 outweigh the costs; and 19 (2) the Director of the Office of Management 20 and Budget approves such cost-benefit analysis and 21 publishes such approval in the Federal Register. 22 SEC. 5. TRANSPARENCY. 23 (a) REQUIRED DISCLOSURES.— 24 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 5 •S 2031 IS (1) IN GENERAL.—Subject to subsection (b), an 1 internet platform shall disclose, on a publicly avail- 2 able and easily accessible website, accurate informa- 3 tion regarding the platform management practices, 4 performance characteristics, and commercial terms 5 of service of its app store, cloud computing service, 6 operating system, search engine, or social media net- 7 work sufficient to enable a reasonable user to make 8 an informed choice regarding the purchase or use of 9 such service and to develop, market, and maintain a 10 product or service on the internet platform. 11 (2) REQUIRED INFORMATION.—The informa- 12 tion to be disclosed pursuant to paragraph (1) shall 13 include the following: 14 (A) PLATFORM MANAGEMENT PRAC- 15 TICES.—Information regarding the platform 16 management practices of an internet platform 17 shall include the following: 18 (i) GENERAL PRACTICES.—A descrip- 19 tion of any content management or data 20 management practices. 21 (ii) APP STORE, OPERATING SYSTEM, 22 SEARCH ENGINE, OR SOCIAL MEDIA NET- 23 WORK.—With respect to an app store, op- 24 erating system, search engine, or social 25 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 6 •S 2031 IS media network, a description of any prac- 1 tice— 2 (I) regarding how the internet 3 platform— 4 (aa) curates and targets 5 content to users; 6 (bb) promotes content, serv- 7 ices, or products, including its 8 own content, services, or prod- 9 ucts; 10 (cc) moderates content; or 11 (dd) determines whether to 12 demonetize a user’s use of the 13 internet platform by any means; 14 or 15 (II) that directly or indirectly fa- 16 vors certain data or content over other 17 data or content, including through use 18 of techniques such as content place- 19 ment or prioritization— 20 (aa) to benefit an affiliate; 21 or 22 (bb) in exchange for consid- 23 eration, monetary or otherwise. 24 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 7 •S 2031 IS (iii) CLOUD COMPUTING SERVICE.— 1 With respect to a cloud computing service, 2 a description of any practice— 3 (I) regarding congestion manage- 4 ment, application-specific behavior, 5 device attachment, or data privacy 6 and data security; or 7 (II) that determines whether— 8 (aa) any content, applica- 9 tion, or service is lawful; and 10 (bb) a device interferes with 11 the cloud computing service’s 12 functionality or poses an unrea- 13 sonable data privacy or data se- 14 curity risk to a user. 15 (iv) PUBLISHERS.— 16 (I) INTERNET PLATFORMS.— 17 With respect to an internet platform 18 that publicly proclaims to be a pub- 19 lisher, a description of any practice 20 that blocks or otherwise prevents a 21 user or entity from accessing any law- 22 ful content, application, service, or de- 23 vice that does not interfere with the 24 internet platform’s functionality or 25 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 8 •S 2031 IS pose a risk of data privacy or data se- 1 curity to a user. 2 (II) AFFILIATES.—With respect 3 to an internet platform that publicly 4 proclaims to be a publisher and is an 5 affiliate of a cloud computing service 6 or operating system, a description of 7 any practice that degrades or impairs 8 a user or entity’s access to lawful 9 internet traffic on the basis of con- 10 tent, application, service, or use of a 11 device that does not interfere with the 12 internet platform’s functionality or 13 pose a risk to the data privacy or data 14 security of a user. 15 (B) PERFORMANCE CHARACTERISTICS.— 16 Information regarding the performance charac- 17 teristics of an internet platform shall include 18 the following: 19 (i) GENERAL CHARACTERISTICS.—A 20 general description of the service, including 21 the service technology. 22 (ii) CLOUD COMPUTING SERVICE.— 23 With respect to a cloud computing service, 24 a description of— 25 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 9 •S 2031 IS (I) the expected and actual ac- 1 cess speed and latency; and 2 (II) the capability of the service 3 to support real-time applications. 4 (iii) SERVICE WITH REQUIRED AP- 5 PROVAL.—With respect to an app store, 6 cloud computing service, or operating sys- 7 tem that requires approval before allowing 8 an application to use the internet plat- 9 form— 10 (I) the average time for a devel- 11 oper to receive such approval after ini- 12 tial submission; and 13 (II) the timeline for the internet 14 platform to resolve complaints and the 15 outcome of any such resolution. 16 (C) COMMERCIAL TERMS.—Information re- 17 garding the commercial terms of an internet 18 platform shall include a description of the fee 19 disclosures, privacy practices, and redress op- 20 tions for users, including the following: 21 (i) USAGE-BASED FEES.—With re- 22 spect to a cloud computing service, any 23 usage-based fees or fees for early termi- 24 nation or additional network services. 25 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 10 •S 2031 IS (ii) APPROVAL FEES.—With respect 1 to an app store, cloud computing service, 2 or operating system that requires approval 3 before allowing an application to use the 4 internet platform, any fees charged to 5 those seeking such approval. 6 (iii) THIRD-PARTY FEES.—With re- 7 spect to an app store, cloud computing 8 service, or operating system, any fees 9 charged to or by third parties associated 10 with a user’s decision to purchase an appli- 11 cation or other content that uses such 12 internet platform. 13 (iv) PRIORITIZATION FEES.—With re- 14 spect to an app store, operating system, 15 search engine, or social media network, 16 any fees charged for the placement or 17 prioritization of any content or application. 18 (v) PRIVACY PRACTICES.—A descrip- 19 tion of any data privacy practice that en- 20 tails the inspection of user-generated con- 21 tent or other internet platform information 22 and whether such content or information is 23 stored, provided to third parties, or used 24 for non-platform management purposes. 25 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 11 •S 2031 IS (vi) COMPLAINT RESOLUTION PRAC- 1 TICES.—A description of any practice for 2 resolving the complaint or question of a 3 user. 4 (b) APPLICABILITY TO SMALL INTERNET PLAT- 5 FORMS.—The requirements under subsection (a) shall not 6 apply to a small internet platform unless— 7 (1) the Commission determines that the bene- 8 fits of expanding the application of such require- 9 ments to 1 or more small internet platforms out- 10 weigh the costs; and 11 (2) the Director of the Office of Management 12 and Budget approves such cost-benefit analysis and 13 publishes such approval in the Federal Register. 14 SEC. 6. ENFORCEMENT. 15 (a) ENFORCEMENT AUTHORITY.— 16 (1) UNFAIR AND DECEPTIVE ACTS OR PRAC- 17 TICE.—A violation of section 2, 3, or 5 shall be 18 treated as an unfair and deceptive act or practice 19 proscribed under section 5(a) of the Federal Trade 20 Commission Act (15 U.S.C. 45(a)). 21 (2) UNFAIR METHODS OF COMPETITION.—Any 22 person who violates section 4 shall be liable for en- 23 gaging in an unfair method of competition under 24 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 12 •S 2031 IS section 5(a) of the Federal Trade Commission Act 1 (15 U.S.C. 45(a)). 2 (b) POWERS OF THE COMMISSION.— 3 (1) IN GENERAL.—Notwithstanding any other 4 provision of law, the Commission shall enforce this 5 Act in the same manner, by the same means, and 6 with the same jurisdiction, powers, and duties as 7 though all applicable terms and provisions of the 8 Federal Trade Commission Act (15 U.S.C. 41 et 9 seq.) were incorporated into and made a part of this 10 Act. 11 (2) PRIVILEGES AND IMMUNITIES.—Notwith- 12 standing any other provision of law, any person who 13 violates this Act shall be subject to the penalties and 14 entitled to the privileges and immunities provided in 15 the Federal Trade Commission Act (15 U.S.C. 41 et 16 seq.). 17 (3) AUTHORITY PRESERVED.—Nothing in this 18 Act shall be construed to limit the authority of the 19 Commission under any other provision of law. 20 (c) COMPLAINTS TO THE COMMISSION.— 21 (1) IN GENERAL.—Any individual alleging a 22 violation of this Act may submit to the Commission 23 a complaint which briefly states the facts sur- 24 rounding such violation. 25 VerDate Sep 11 2014 07:04 Jun 23, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2031.IS S2031 kjohnson on DSK79L0C42PROD with BILLS 13 •S 2031 IS (2) NOTICE TO INTERNET PLATFORM.—Upon 1 receiving a complaint described in paragraph (1), 2 the Commission shall forward a statement of the 3 complaint to the internet platform that is the subject 4 of the alleged violation. 5 (3) REQUIREMENT TO ADDRESS COMPLAINT.— 6 Upon receiving a forwarded complaint under para- 7 graph (2), the internet platform shall, within a rea- 8 sonable time (as specified by the Commission), ei- 9 ther— 10 (A) make a reparation for any injury al- 11 leged to have been caused in the complaint filed 12 under paragraph (1) and notify the Commission 13 of such reparation; or 14 (B) submit to the Commission a written 15 response to the [Text truncated for display. 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