DETOUR Act

II 116TH CONGRESS 1ST SESSION S. 1084 To prohibit the usage 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 SENATE OF THE UNITED STATES APRIL 9, 2019 Mr. WARNER (for himself and Mrs. FISCHER) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To prohibit the usage of exploitative and deceptive practices by large online operators and to promote consumer wel- fare in the use of behavioral research by such providers. 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 ‘‘Deceptive Experiences 4 To Online Users Reduction Act’’ or the ‘‘DETOUR Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) BEHAVIORAL OR PSYCHOLOGICAL EXPERI- 8 MENTS OR RESEARCH.—The term ‘‘behavioral or 9 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1084 IS psychological experiments or research’’ means the 1 study, including through human experimentation, of 2 overt or observable actions and mental phenomena 3 inferred from behavior, including interactions be- 4 tween and among individuals and the activities of so- 5 cial groups. 6 (2) COMMISSION.—The term ‘‘Commission’’ 7 means the Federal Trade Commission. 8 (3) COMPULSIVE USAGE.—The term ‘‘compul- 9 sive usage’’ means any response stimulated by exter- 10 nal factors that causes an individual to engage in re- 11 petitive, purposeful, and intentional behavior causing 12 psychological distress, loss of control, anxiety, de- 13 pression, or harmful stress responses. 14 (4) INDEPENDENT REVIEW BOARD.—The term 15 ‘‘independent review board’’ means a board, com- 16 mittee, or other group formally designated by a large 17 online operator to review, to approve the initiation 18 of, and to conduct periodic review of, any research 19 by, or at the direction or discretion of a large online 20 operator, involving human subjects. 21 (5) INFORMED CONSENT.—The term ‘‘informed 22 consent’’— 23 (A) means a process by which a research 24 subject is provided adequate information prior 25 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1084 IS to being included in any experiment or study to 1 allow for an informed decision about voluntary 2 participation in a behavioral or psychological re- 3 search experiment or study, while ensuring the 4 understanding of the potential participant of 5 the furnished information and any associated 6 benefits, risks, or consequences of participation 7 prior to obtaining the voluntary agreement to 8 participate by the participant; and 9 (B) does not include— 10 (i) the consent of an individual under 11 the age of 13; or 12 (ii) the consent to a provision con- 13 tained in a general contract or service 14 agreement. 15 (6) LARGE ONLINE OPERATOR.—The term 16 ‘‘large online operator’’ means any person that— 17 (A) provides an online service; 18 (B) has more than 100,000,000 authenti- 19 cated users of an online service in any 30-day 20 period; and 21 (C) is subject to the jurisdiction of the 22 Commission under the Federal Trade Commis- 23 sion Act (15 U.S.C. 41 et seq.). 24 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1084 IS (7) ONLINE SERVICE.—The term ‘‘online serv- 1 ice’’ means a website or a service, other than an 2 internet access service, that is made available to the 3 public over the internet, including a social network, 4 a search engine, or email service. 5 (8) USER DATA.—The term ‘‘user data’’ means 6 any information relating to an identified or identifi- 7 able individual user, whether directly submitted to 8 the large online operator by the user, or derived 9 from the observed activity of the user by the large 10 online operator. 11 SEC. 3. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RE- 12 LATING TO THE MANIPULATION OF USER 13 INTERFACES. 14 (a) CONDUCT PROHIBITED.— 15 (1) IN GENERAL.—It shall be unlawful for any 16 large online operator— 17 (A) to design, modify, or manipulate a user 18 interface with the purpose or substantial effect 19 of obscuring, subverting, or impairing user au- 20 tonomy, decision-making, or choice to obtain 21 consent or user data; 22 (B) to subdivide or segment consumers of 23 online services into groups for the purposes of 24 behavioral or psychological experiments or stud- 25 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1084 IS ies, except with the informed consent of each 1 user involved; or 2 (C) to design, modify, or manipulate a user 3 interface on a website or online service, or por- 4 tion thereof, that is directed to an individual 5 under the age of 13, with the purpose or sub- 6 stantial effect of cultivating compulsive usage, 7 including video auto-play functions initiated 8 without the consent of a user. 9 (b) DUTIES OF LARGE ONLINE OPERATORS.—Any 10 large online operator that engages in any form of behav- 11 ioral or psychological research based on the activity or 12 data of its users shall— 13 (1) disclose to its users on a routine basis, but 14 not less than once each 90 days, any experiments or 15 studies that user was subjected to or enrolled in with 16 the purpose of promoting engagement or product 17 conversion; 18 (2) disclose to the public on a routine basis, but 19 not less than once each 90 days, any experiments or 20 studies with the purposes of promoting engagement 21 or product conversion being currently undertaken, or 22 concluded since the prior disclosure; 23 (3) shall present the disclosures in paragraphs 24 (1) and (2) in a manner that— 25 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1084 IS (A) is clear, conspicuous, context-appro- 1 priate, and easily accessible; and 2 (B) is not deceptively obscured; 3 (4) establish an Independent Review Board for 4 any behavioral or psychological research, of any pur- 5 pose, conducted on users or on the basis of user ac- 6 tivity or data, which shall review and have authority 7 to approve, require modification in, or disapprove all 8 behavioral or psychological experiments or research; 9 and 10 (5) ensure that any Independent Review Board 11 established under paragraph (4) shall register with 12 the Commission, including providing to the Commis- 13 sion— 14 (A) the names and resumes of every board 15 member; 16 (B) the composition and reporting struc- 17 ture of the Board to the management of the op- 18 erator; 19 (C) the process by which the Board is to 20 be notified of proposed studies or modifications 21 along with the processes by which the board is 22 capable of vetoing or amending such proposals; 23 (D) any compensation provided to board 24 members; and 25 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1084 IS (E) any conflict of interest that might 1 exist concerning a board member’s participation 2 in the Board. 3 (c) REGISTERED PROFESSIONAL STANDARDS 4 BODY.— 5 (1) IN GENERAL.—An association of large on- 6 line operators may register as a professional stand- 7 ards body by filing with the Commission an applica- 8 tion for registration in such form as the Commis- 9 sion, by rule, may prescribe containing the rules of 10 the association and such other information and doc- 11 uments as the Commission, by rule, may prescribe 12 as necessary or appropriate in the public interest or 13 for protecting the welfare of users of large online op- 14 erators. 15 (2) PROFESSIONAL STANDARDS BODY.—An as- 16 sociation of large online operators may not register 17 as a professional standards body unless the Commis- 18 sion determines that— 19 (A) the association is so organized and has 20 the capacity to enforce compliance by its mem- 21 bers and persons associated with its members, 22 with the provisions of this Act; 23 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1084 IS (B) the rules of the association provide 1 that any large online operator may become a 2 member of such association; 3 (C) the rules of the association assure a 4 fair representation of its members in the selec- 5 tion of its directors and administration of its 6 affairs and provide that one or more directors 7 shall be representative of users and not be asso- 8 ciated with, or receive any direct or indirect 9 funding from, a member of the association or 10 any large online operator; 11 (D) the rules of the association are de- 12 signed to prevent exploitative and manipulative 13 acts or practices, to promote transparent and 14 fair principles of technology development and 15 design, to promote research in keeping with 16 best practices of study design and informed 17 consent, and to continually evaluate industry 18 practices and issue binding guidance consistent 19 with the objectives of this Act; 20 (E) the rules of the association provide 21 that its members and persons associated with 22 its members shall be appropriately disciplined 23 for violation of any provision of this Act, the 24 rules or regulations thereunder, or the rules of 25 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1084 IS the association, by expulsion, suspension, limi- 1 tation of activities, functions, fine, censure, 2 being suspended or barred from being associ- 3 ated with a member, or any other appropriate 4 sanction; and 5 (F) the rules of the association are in ac- 6 cordance with the provisions of this Act, and, in 7 general, provide a fair procedure for the dis- 8 ciplining of members and persons associated 9 with members, the denial of membership to any 10 person seeking membership therein, the barring 11 of any person from becoming associated with a 12 member thereof, and the prohibition or limita- 13 tion by the association of any person with re- 14 spect to access to services offered by the asso- 15 ciation or a member thereof. 16 (3) RESPONSIBILITIES AND ACTIVITIES.— 17 (A) BRIGHT-LINE RULES.—An association 18 shall develop, on a continuing basis, guidance 19 and bright-line rules for the development and 20 design of technology products of large online 21 operators consistent with subparagraph (B). 22 (B) SAFE HARBORS.—In formulating guid- 23 ance under subparagraph (A), the association 24 shall define conduct that does not have the pur- 25 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1084 IS pose or substantial effect of subverting or im- 1 pairing user autonomy, decision-making, or 2 choice, or of cultivating compulsive usage for 3 children such as— 4 (i) de minimis user interface changes 5 derived from testing consumer preferences, 6 including different styles, layouts, or text, 7 where such changes are not done with the 8 purpose of obtaining user consent or user 9 data; 10 (ii) algorithms or data outputs outside 11 the control of a large online operator or its 12 affiliates; and 13 (iii) establishing default settings that 14 provide enhanced privacy protection to 15 users or otherwise enhance their autonomy 16 and decision-making ability. 17 (d) ENFORCEMENT BY THE COMMISSION.— 18 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 19 TICE.—A violation of subsection (a) or (b) shall be 20 treated as a violation of a rule defining an unfair or 21 deceptive act or practice under section 18(a)(1)(B) 22 of the Federal Trade Commission Act (15 U.S.C. 23 57a(a)(1)(B)). 24 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1084 IS (2) DETERMINATION.—For purposes of en- 1 forcement of this Act, the Commission shall deter- 2 mine an act or practice is unfair or deceptive if the 3 act or practice— 4 (A) has the purpose, or substantial effect, 5 of subverting or impairing user autonomy, deci- 6 sion-making, or choice to obtain consent or user 7 data; or 8 (B) has the purpose, or substantial effect, 9 of cultivating compulsive usage by a child under 10 13. 11 (3) REGULATIONS.—Not later than 1 year after 12 the date of enactment of this Act, the Commission 13 shall promulgate regulations under section 553 of 14 title 5, United States Code, that— 15 (A) establish rules and procedures for ob- 16 taining the informed consent of users; 17 (B) establish rules for the registration, for- 18 mation, oversight, and management of the inde- 19 pendent review boards, including standards that 20 ensure effective independence of such entities 21 from improper or undue influence by a large 22 online operator; 23 (C) establish rules for the registration, for- 24 mation, oversight, and management of profes- 25 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1084 IS sional standards bodies, including procedures 1 for the regular oversight of such bodies and rev- 2 ocation of their designation; and 3 (D) in consultation with a professional 4 standards body established under subsection 5 (c), define conduct that does not have the pur- 6 pose or substantial effect of subverting or im- 7 pairing user autonomy, decision-making, or 8 choice, or of cultivating compulsive usage for 9 children such as— 10 (i) de minimis user interface changes 11 derived from testing consumer preferences, 12 including different styles, layouts, or text, 13 where such changes are not done with the 14 purpose of obtaining user consent or user 15 data; 16 (ii) algorithms or data outputs outside 17 the control of a large online operator or its 18 affiliates; and 19 (iii) establishing default settings that 20 provide enhanced privacy protection to 21 users or otherwise enhance their autonomy 22 and decision-making ability. 23 (4) SAFE HARBOR.—The Commission may not 24 bring an enforcement action under this Act against 25 VerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 [Text truncated for display. 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