Bot Disclosure and Accountability Act of 2019

II 116TH CONGRESS 1ST SESSION S. 2125 To protect the right of the American public under the First Amendment to the Constitution of the United States to receive news and information from disparate sources by regulating the use of automated software programs intended to impersonate or replicate human activity on social media. IN THE SENATE OF THE UNITED STATES JULY 16, 2019 Mrs. FEINSTEIN introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To protect the right of the American public under the First Amendment to the Constitution of the United States to receive news and information from disparate sources by regulating the use of automated software programs intended to impersonate or replicate human activity on social media. 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 ‘‘Bot Disclosure and 4 Accountability Act of 2019’’. 5 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 2 •S 2125 IS SEC. 2. FINDINGS. 1 Congress finds the following: 2 (1) According to the Pew Research Center, in 3 2005, only 5 percent of adults in the United States 4 used online social media, but by 2018, 69 percent of 5 adults in the United States reported using some type 6 of social media, including 88 percent of adults under 7 the age of 29, and 67 percent of adults in the 8 United States reportedly obtained some of their 9 news from social media, including 78 percent of 10 adults under the age of 50. 11 (2) In 2016, a study titled ‘‘Social bots distort 12 the 2016 U.S. Presidential election online discus- 13 sion’’ found that, during the 2016 United States 14 presidential election, approximately 400,000, or 15 15 percent, of the users of the social media website 16 Twitter who discussed the election were social media 17 bots. Those bots produced 3,800,000 tweets, which 18 accounted for 19 percent of all tweets regarding the 19 election. 20 (3) In 2017, a report published by researchers 21 from the University of Oxford and the University of 22 Pennsylvania titled ‘‘Computational Propaganda in 23 the United States: Manufacturing Consensus On- 24 line’’ noted that, ‘‘According to many of the people 25 interviewed for the report, including political bot 26 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 3 •S 2125 IS makers and campaign personnel, the goals of bot- 1 driven tactics are manifold: to create a bandwagon 2 effect, to build fake social media trends by automati- 3 cally spreading hashtags, and even to suppress the 4 opinions of the opposition.’’. 5 (4) In testimony before the Committee on the 6 Judiciary of the Senate, representatives from Twit- 7 ter reported that, of the 2,752 Twitter accounts as- 8 sociated with the Russian intelligence unit known as 9 the ‘‘Internet Research Agency’’, more than 47 per- 10 cent were social media bots. 11 (5) In 2017, the Oxford Internet Institute 12 found that Russian government social media bots 13 were used to manipulate highly targeted and con- 14 sequential segments of the electorate of the United 15 States. Researchers found that, of all tweets related 16 to the 2016 United States presidential election, Rus- 17 sian propaganda constituted— 18 (A) 40 percent of such tweets directed to 19 Pennsylvania residents; 20 (B) 34 percent of such tweets directed to 21 Michigan residents; 22 (C) 30 percent of such tweets directed to 23 Wisconsin residents; 24 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 4 •S 2125 IS (D) 41 percent of such tweets directed to 1 Florida residents; 2 (E) 40 percent of such tweets directed to 3 North Carolina residents; and 4 (F) 35 percent of such tweets directed to 5 Ohio residents. 6 (6) In Associated Press v. United States, 326 7 U.S. 1 (1945), the Supreme Court found, ‘‘It would 8 be strange indeed, however, if the grave concern for 9 freedom of the press which prompted adoption of the 10 First Amendment should be read as a command that 11 the government was without power to protect that 12 freedom.’’. 13 SEC. 3. SENSE OF CONGRESS. 14 It is the sense of Congress that the United States 15 Government has a compelling interest in— 16 (1) mitigating the deceptiveness of social media 17 bots, which impersonate human activity online, 18 through public disclosure requirements that impose 19 a minimal burden on rights protected under the 20 First Amendment to the Constitution of the United 21 States; 22 (2) regulating the use of social media bots in 23 political advertising, which is intended to deceive 24 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 5 •S 2125 IS voters and suppress human speech, in a manner that 1 does not— 2 (A) distinguish between political messages 3 based on— 4 (i) content; or 5 (ii) the nature of the person pro- 6 ducing a message; or 7 (B) impose any aggregate limit on political 8 speech; and 9 (3) mitigating the effectiveness of efforts by 10 foreign entities to influence United States elections 11 through the use of social media bots to spread mis- 12 information and propaganda. 13 SEC. 4. PUBLIC DISCLOSURE OF SOFTWARE PROGRAMS IN- 14 TENDED TO IMPERSONATE OR REPLICATE 15 HUMAN ACTIVITY. 16 (a) DEFINITIONS.— 17 (1) IN GENERAL.—In this section— 18 (A) the term ‘‘automated software pro- 19 gram or process intended to impersonate or 20 replicate human activity online’’ has the mean- 21 ing given the term by the Commission by regu- 22 lation under paragraph (2); 23 (B) the term ‘‘Commission’’ means the 24 Federal Trade Commission; 25 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 6 •S 2125 IS (C) the term ‘‘social media provider’’ 1 means any person that owns or operates a so- 2 cial media website; and 3 (D) the term ‘‘social media website’’ means 4 any tool, website, application, or other media 5 that connects users on the internet for the pur- 6 pose of engaging in dialogue, sharing informa- 7 tion, collaborating, and interacting. 8 (2) DEFINITION BY REGULATION.—Not later 9 than 1 year after the date of enactment of this Act, 10 the Commission shall promulgate regulations under 11 section 553 of title 5, United States Code, to define 12 the term ‘‘automated software program or process 13 intended to impersonate or replicate human activity 14 online’’ broadly enough so that the definition is not 15 limited to current technology. 16 (b) REGULATIONS.—Not later than 1 year after the 17 date of enactment of this Act, the Commission shall pro- 18 mulgate regulations under section 553 of title 5, United 19 States Code, to require a social media provider to establish 20 and implement policies and procedures to require a user 21 of a social media website owned or operated by the social 22 media provider to publically disclose the use of any auto- 23 mated software program or process intended to imper- 24 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 7 •S 2125 IS sonate or replicate human activity online on the social 1 media website. 2 (c) REQUIREMENTS.—In promulgating regulations 3 under subsection (b), the Commission shall require a so- 4 cial media provider to establish and implement, for each 5 social media website owned or operated by the social media 6 provider— 7 (1) a policy that requires any user of the social 8 media website that employs an automated software 9 program or process intended to impersonate or rep- 10 licate human activity online on the social media 11 website to provide clear and conspicuous notice of 12 the automated program in clear and plain language 13 to any other person or user of the social media 14 website who may be exposed to activities conducted 15 by the automated program; 16 (2) a process that allows a user of the social 17 media website to provide clear and conspicuous no- 18 tice to any other person or user as required under 19 paragraph (1); 20 (3) a process to identify, assess, and verify 21 whether the activity of any user of the social media 22 website is conducted by an automated software pro- 23 gram or process intended to impersonate or replicate 24 human activity online; 25 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 8 •S 2125 IS (4) a process by which the social media provider 1 will take reasonable preventative and corrective ac- 2 tion to mitigate efforts by a user to use an auto- 3 mated software program or process intended to im- 4 personate or replicate human activity online without 5 disclosure as required under paragraph (1), which 6 may include suspension or any other action author- 7 ized by the Commission; 8 (5) a process by which the social media provider 9 will remove posts, images, or any other online activ- 10 ity of a user or profile making use of an automated 11 software program or process intended to imper- 12 sonate or replicate human activity online that is not 13 in compliance with the policy under paragraph (1); 14 and 15 (6) a process that allows a human user of the 16 social media website the opportunity to demonstrate 17 that the online activity of the user is in compliance 18 with the policy required under paragraph (1) prior 19 to, or immediately following, any mitigation activity 20 described in paragraph (4) or (5). 21 (d) RULE OF CONSTRUCTION.—Nothing in this sec- 22 tion shall be construed to require any social media pro- 23 vider to permit an automated software program or process 24 intended to impersonate or replicate human activity online 25 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 9 •S 2125 IS on a social media website owned or operated by the social 1 media provider. 2 (e) ENFORCEMENT.— 3 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 4 TICES.—A violation of a regulation promulgated 5 under subsection (b) shall be treated as a violation 6 of a rule defining an unfair or deceptive act or prac- 7 tice prescribed under section 18(a)(1)(B) of the Fed- 8 eral Trade Commission Act (15 U.S.C. 9 57a(a)(1)(B)). 10 (2) POWERS OF COMMISSION.— 11 (A) IN GENERAL.—Except as provided in 12 subparagraph (C), the Commission shall enforce 13 this section in the same manner, by the same 14 means, and with the same jurisdiction, powers, 15 and duties as though all applicable terms and 16 provisions of the Federal Trade Commission 17 Act (15 U.S.C. 41 et seq.) were incorporated 18 into and made a part of this section. 19 (B) PRIVILEGES AND IMMUNITIES.—Ex- 20 cept as provided in subparagraph (C), any per- 21 son who violates subsection (b) shall be subject 22 to the penalties and entitled to the privileges 23 and immunities provided in the Federal Trade 24 Commission Act (15 U.S.C. 41 et seq.). 25 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 10 •S 2125 IS (C) COMMON CARRIERS AND NONPROFIT 1 ORGANIZATIONS.—Notwithstanding section 4, 2 5(a)(2), or 6 of the Federal Trade Commission 3 Act (15 U.S.C. 44, 45(a)(2), 46) or any juris- 4 dictional limitation of the Commission, the 5 Commission shall also enforce this section, in 6 the same manner provided in subparagraphs 7 (A) and (B) of this paragraph, with respect 8 to— 9 (i) common carriers subject to the 10 Communications Act of 1934 (47 U.S.C. 11 151 et seq.) and Acts amendatory thereof 12 and supplementary thereto; and 13 (ii) organizations not organized to 14 carry on business for their own profit or 15 that of their members. 16 (D) AUTHORITY PRESERVED.—Nothing in 17 this section shall be construed to limit the au- 18 thority of the Commission under any other pro- 19 vision of law. 20 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 11 •S 2125 IS SEC. 5. PROHIBITION ON AUTOMATED SOFTWARE PRO- 1 GRAMS INTENDED TO IMPERSONATE OR REP- 2 LICATE HUMAN ACTIVITY FOR ONLINE PO- 3 LITICAL ADVERTISING. 4 Title III of the Federal Election Campaign Act of 5 1971 (52 U.S.C. 30101 et seq.) is amended by adding at 6 the end the following new section: 7 ‘‘SEC. 325. PROHIBITION ON THE USE OF CERTAIN AUTO- 8 MATED SOFTWARE PROGRAMS FOR POLIT- 9 ICAL ADVERTISING. 10 ‘‘(a) PROHIBITION.— 11 ‘‘(1) CANDIDATES AND POLITICAL PARTIES.— 12 No candidate (including any authorized committee of 13 a candidate) or political party may— 14 ‘‘(A) use or cause to be used any auto- 15 mated software programs or processes intended 16 to impersonate or replicate human activity on- 17 line to make, amplify, share, or otherwise dis- 18 seminate any public communication; or 19 ‘‘(B) solicit, accept, purchase or sell any 20 automated software programs or processes in- 21 tended to impersonate or replicate human activ- 22 ity online for any purpose. 23 ‘‘(2) POLITICAL COMMITTEES, CORPORATIONS, 24 AND LABOR ORGANIZATIONS.—No political com- 25 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2125.IS S2125 kjohnson on DSK79L0C42 with BILLS 12 •S 2125 IS mittee, corporation, or labor organization (as defined 1 in section 316(b)) may— 2 ‘‘(A) use or cause to be used any auto- 3 mated software programs or processes intended 4 to impersonate or replicate human activity on- 5 line to make, amplify, share, or otherwise dis- 6 seminate— 7 ‘‘(i) any message that expressly advo- 8 cates for the election or defeat of a can- 9 didate; or 10 ‘‘(ii) or any communication which 11 would be an electioneering communication 12 as defined in section 304(f)(3) if such sec- 13 tion were applied— 14 ‘‘(I) by taking into account com- 15 munications made over the Internet; 16 ‘‘(II) without regard to subpara- 17 graph (A)(i)(III) thereof with respect 18 to communications described in sub- 19 clause (I); and 20 ‘‘(III) by treating the facilities of 21 any online or digital newspaper, mag- 22 azine, blog, publication, or periodical 23 in the same manner the facilities of a 24 VerDate Sep 11 2014 23:54 Jul 18, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt [Text truncated for display. 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