ACCESS Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 3849 To promote competition, lower entry barriers, and reduce switching costs for consumers and businesses online. IN THE HOUSE OF REPRESENTATIVES JUNE 11, 2021 Ms. SCANLON (for herself, Mr. OWENS, Mr. CICILLINE, Mr. BUCK, and Mr. NADLER) introduced the following bill; which was referred to the Com- mittee on the Judiciary A BILL To promote competition, lower entry barriers, and reduce switching costs for consumers and businesses online. 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 ‘‘Augmenting Compat- 4 ibility and Competition by Enabling Service Switching Act 5 of 2021’’ or the ‘‘ACCESS Act of 2021’’. 6 SEC. 2. UNFAIR METHOD OF COMPETITION. 7 A violation of this Act, or standards issued pursuant 8 to this Act, by a person, partnership, or corporation oper- 9 ating a covered platform, in or affecting commerce, shall 10 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 3849 IH be an unfair method of competition in violation of section 1 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 2 45). 3 SEC. 3. PORTABILITY. 4 (a) IN GENERAL.—A covered platform shall maintain 5 a set of transparent, third-party-accessible interfaces (in- 6 cluding application programming interfaces) to enable the 7 secure transfer of data to a user, or with the affirmative 8 consent of a user, to a business user at the direction of 9 a user, in a structured, commonly used, and machine-read- 10 able format that complies with the standards issued pursu- 11 ant to section 6(c). 12 (b) DATA SECURITY.— 13 (1) IN GENERAL.—A competing business or a 14 potential competing business that receives ported 15 user data from a covered platform shall reasonably 16 secure any user data it acquires, and shall take rea- 17 sonable steps to avoid introducing security risks to 18 data or the covered platform’s information systems. 19 (2) VIOLATION.—A failure to comply with this 20 section is a violation of this Act and subject to the 21 enforcement under sections 9 and 10 of this Act. 22 (3) TERMINATION OF ACCESS.—The Commis- 23 sion may require the covered platform to cease the 24 transfer of data to a competing or potentially com- 25 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 3849 IH peting business that the Commission finds has vio- 1 lated this section or standards adopted by the Com- 2 mission under section 6(c) of this Act. 3 (c) PORTABILITY OBLIGATIONS.—In order to achieve 4 portability under subsection (a), a covered platform shall 5 comply with the standards issued under section 6(c) by 6 the Commission. 7 SEC. 4. INTEROPERABILITY. 8 (a) IN GENERAL.—A covered platform shall maintain 9 a set of transparent, third-party-accessible interfaces (in- 10 cluding application programming interfaces) to facilitate 11 and maintain interoperability with a competing business 12 or a potential competing business that complies with the 13 standards issued pursuant to section 6(c). 14 (b) DATA SECURITY.— 15 (1) IN GENERAL.—A competing business or a 16 potential competing business that accesses an inter- 17 operability interface of a covered platform shall rea- 18 sonably secure any user data it acquires, processes, 19 or transmits, and shall take reasonable steps to 20 avoid introducing security risks to user data or the 21 covered platform’s information systems. 22 (2) VIOLATION.—A failure to comply with this 23 section is a violation of this Act and subject to the 24 enforcement under sections 9 and 10 of this Act. 25 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 3849 IH (3) TERMINATION OF ACCESS.—The Commis- 1 sion may require the covered platform to cease inter- 2 operating with a competing or potentially competing 3 business that the Commission finds has violated this 4 section or standards adopted by the Commission 5 under section 6(c) of this Act. 6 (c) INTEROPERABILITY OBLIGATIONS.—In order to 7 achieve interoperability under subsection (a), a covered 8 platform shall comply with the standards issued under sec- 9 tion 6(c) by the Commission. 10 (d) SECURITY AND PRIVACY STANDARDS.—Con- 11 sistent with standards issued by the Commission under 12 section 6(c) of this Act, a covered platform shall set pri- 13 vacy and security standards for access by competing busi- 14 nesses or potential competing businesses to the extent rea- 15 sonably necessary to address a threat to the covered plat- 16 form or user data, and shall report any suspected viola- 17 tions of those standards to the Commission. 18 (e) PROHIBITED CHANGES TO INTERFACES.— 19 (1) COMMISSION APPROVAL.—A covered plat- 20 form may make a change that may affect its inter- 21 operability interface by petitioning the Commission 22 to approve a proposed change. The Commission shall 23 allow the change if, after consulting with the rel- 24 evant technical committee the Commission concludes 25 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 3849 IH that the change is not being made with the purpose 1 or effect of unreasonably denying access or under- 2 mining interoperability for competing businesses or 3 potential competing businesses. 4 (2) EXCEPTION.—A covered platform may 5 make a change affecting its interoperability inter- 6 faces without receiving approval from the Commis- 7 sion if that change is necessary to address a security 8 vulnerability or other exigent circumstance that cre- 9 ates an imminent risk to user privacy or security if 10 the change is narrowly tailored to the vulnerability 11 and does not have the purpose or effect of unreason- 12 ably denying access or undermining interoperability 13 for competing businesses or potential competing 14 businesses. 15 (3) INTERFACE INFORMATION.— 16 (A) IN GENERAL.—Not later than 120 17 days after the adoption of a rule by the Com- 18 mission under section 6(c) of this Act, a cov- 19 ered platform shall provide to competing busi- 20 nesses or potential competing businesses com- 21 plete and accurate documentation describing ac- 22 cess to the interoperability interface required 23 under this section. 24 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 3849 IH (B) CONTENTS.—The documentation re- 1 quired under subparagraph (A) is limited to 2 interface documentation necessary to achieve 3 development and operation of interoperable 4 products and services. 5 (4) NOTICE OF CHANGES.—A covered platform 6 shall provide reasonable advance notice to a com- 7 peting business or a potential competing business, 8 which may be provided through public notice, of any 9 change to an interoperability interface maintained by 10 the covered platform that will affect the interoper- 11 ability of a competing business or a potential com- 12 peting business. 13 (f) DATA MINIMIZATION.— 14 (1) NON-COMMERCIALIZATION BY A COVERED 15 PLATFORM.—A covered platform shall not collect, 16 use, or share user data obtained from a business 17 user through the interoperability interface except for 18 the purposes of safeguarding the privacy and secu- 19 rity of such information or maintaining interoper- 20 ability of services. 21 (2) NON-COMMERCIALIZATION OF DATA ON A 22 COVERED PLATFORM.—A business user shall not col- 23 lect, use, or share the data of a user on a covered 24 platform except for the purposes of safeguarding 25 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 3849 IH and security of such data or maintaining interoper- 1 ability of services. 2 SEC. 5. DEFINITIONS. 3 In this Act: 4 (1) PERSON.—The term ‘‘person’’ has the 5 meaning given the term in subsection (a) of section 6 1 of the Clayton Act (15 U.S.C. 12). 7 (2) AFFIRMATIVE EXPRESS CONSENT.—The 8 term ‘‘affirmative express consent’’ means an affirm- 9 ative action of the consumer to make a choice fol- 10 lowing a clear and conspicuous disclosure to the con- 11 sumer, separate and apart from any ‘‘privacy pol- 12 icy’’, ‘‘terms of service’’, ‘‘terms of service’’, ‘‘con- 13 sent for research’’, or other similar document, of— 14 (A) the types of Personal Information that 15 Respondent will disclose to third parties; 16 (B) the reason for such disclosures; 17 (C) the identity of all such third parties; 18 (D) any opportunities consumers have to 19 decline or rescind consent for such disclosures; 20 and 21 (E) how consumers may exercise any such 22 opportunities. 23 An affirmative action does not include obtaining a 24 consumer’s approval for a preselected default option. 25 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 3849 IH (3) CLEAR AND CONSPICUOUS DISCLOSURE.— 1 The term ‘‘clear and conspicuous disclosure’’ means 2 that a required disclosure is difficult to miss such 3 that it is easily noticeable and easily understandable 4 by ordinary consumers, including in all of the fol- 5 lowing ways: 6 (A) In any communication that is solely 7 visual or solely audible, the disclosure must be 8 made through the same means through which 9 the communication is presented. In any commu- 10 nication made through both visual and audible 11 means, such as a television advertisement, the 12 disclosure must be presented simultaneously in 13 both the visual and audible portions of the com- 14 munication even if the representation requiring 15 the disclosure (‘‘triggering representation’’) is 16 made through only one means. 17 (B) A visual disclosure, by its size, con- 18 trast, location, the length of time it appears, 19 and other characteristics, must stand out from 20 any accompanying text or other visual elements 21 so that it is easily noticed, read, and under- 22 stood. 23 (C) An audible disclosure, including by 24 telephone or streaming video, must be delivered 25 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 3849 IH in a volume, speed, and cadence sufficient for 1 ordinary consumers to easily hear and under- 2 stand it. 3 (D) In any communication using an inter- 4 active electronic medium, such as the Internet 5 or software, the disclosure must be unavoidable. 6 (E) The disclosure must use diction and 7 syntax understandable to ordinary consumers 8 and must appear in each language in which the 9 triggering representation appears. 10 (F) The disclosure must comply with these 11 requirements in each medium through which it 12 is received, including all electronic devices and 13 face-to-face communications. 14 (G) The disclosure must not be contra- 15 dicted or mitigated by, or inconsistent with, 16 anything else in the communication. 17 (H) When the representation or sales prac- 18 tice targets a specific audience, such as chil- 19 dren, the elderly, or the terminally ill, ‘‘ordinary 20 consumers’’ includes reasonable members of 21 that group. 22 (4) COMMISSION.—The term ‘‘Commission’’ 23 means the Federal Trade Commission. 24 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 3849 IH (5) CONTROL.—The term ‘‘control’’ with re- 1 spect to a person means— 2 (A) holding 25 percent or more of the 3 stock of the person; 4 (B) having the right to 25 percent or more 5 of the profits of the person; 6 (C) having the right to 25 percent or more 7 of the assets of the person, in the event of the 8 person’s dissolution; 9 (D) if the person is a corporation, having 10 the power to designate 25 percent or more of 11 the directors of the person; 12 (E) if the person is a trust, having the 13 power to designate 25 percent or more of the 14 trustees; or 15 (F) otherwise exercises substantial control 16 over the person. 17 (6) COVERED PLATFORM.—The term ‘‘covered 18 platform’’ means an online platform— 19 (A) that has been designated as a ‘‘covered 20 platform’’ under section 6(a); or 21 (B) that— 22 (i) at the time of the Commission’s or 23 the Department of Justice’s designation 24 under section 2(d), or any of the twelve 25 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 3849 IH months preceding that time, or in any of 1 the 12 months preceding the filing of a 2 complaint for an alleged violation of this 3 Act— 4 (I) has at least 50,000,000 5 United States-based monthly active 6 users on the online platform; or 7 (II) has at least 100,000 United 8 States-based monthly active business 9 users on the platform; 10 (ii) is owned or controlled by a person 11 with net annual sales, or a market capital- 12 ization greater than $600,000,000,000, ad- 13 justed for inflation on the basis of the 14 Consumer Price Index, at the time of the 15 Commission’s or the Department of Jus- 16 tice’s designation under section 6(a) or any 17 of the two years preceding that time, or at 18 any time in the 2 years preceding the filing 19 of a complaint for an alleged violation of 20 this Act; and 21 (iii) is a critical trading partner for 22 the sale or provision of any product or 23 service offered on or directly related to the 24 online platform. 25 VerDate Sep 11 2014 01:10 Jun 12, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3849.IH H3849 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 3849 IH (7) COVERED PLATFORM OPERATOR.—The 1 term ‘‘covered platform operator’’ means a person 2 that, directly or indirectly, owns or controls a cov- 3 ered platform. 4 (8) CRITICAL TRADING PARTNER.—The term 5 ‘‘critical trading partner’’ means a trading partner 6 that has the ability to restrict or impede— 7 (A) the access of a business user to its 8 users or customers; or 9 (B) the access of a business user to a tool 10 or service that it needs to effectively serve its 11 users or customers. 12 (9) DATA.— 13 (A) IN GENERAL.—Not later than 6 14 months after the date of enactment of this Act, 15 the Commission shall adopt rules in accordance 16 with section 553 of title 5, United States Code, 17 to [Text truncated for display. 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