SMART Act

II 116TH CONGRESS 1ST SESSION S. 2314 To prohibit social media companies from using practices that exploit human psychology or brain physiology to substantially impede freedom of choice, to require social media companies to take measures to mitigate the risks of internet addiction and psychological exploitation, and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 30, 2019 Mr. HAWLEY introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To prohibit social media companies from using practices that exploit human psychology or brain physiology to substantially impede freedom of choice, to require social media companies to take measures to mitigate the risks of internet addiction and psychological exploitation, 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; FINDINGS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Social Media Addiction Reduction Technology Act’’ or 5 the ‘‘SMART Act’’. 6 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 2314 IS (b) FINDINGS.—Congress finds the following: 1 (1) The business model for many internet com- 2 panies, especially social media companies, is to cap- 3 ture as much of their users’ attention as possible. 4 (2) To achieve this end, some of these internet 5 companies design their platforms and services to ex- 6 ploit brain physiology and human psychology. 7 (3) By exploiting psychological and physio- 8 logical vulnerabilities, these design choices interfere 9 with the free choice of users. 10 SEC. 2. DEFINITIONS. 11 In this Act: 12 (1) COMMISSION.—The term ‘‘Commission’’ 13 means the Federal Trade Commission. 14 (2) CONTENT FEED.—The term ‘‘content feed’’ 15 means a service of a social media platform that ag- 16 gregates and displays information such as text, 17 photos, videos, links, and application activity pro- 18 vided by two or more users. 19 (3) SOCIAL MEDIA COMPANY.—The term ‘‘social 20 media company’’ means any person that operates a 21 social media platform in interstate or foreign com- 22 merce. 23 (4) SOCIAL MEDIA PLATFORM.—The term ‘‘so- 24 cial media platform’’ means any online electronic 25 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 2314 IS medium, such as Facebook, Instagram, YouTube, or 1 Twitter (as such services existed in 2019), a live- 2 chat system, or an electronic dating service— 3 (A) that primarily serves as a medium for 4 users to interact with content generated by 5 other third-party users of the medium; 6 (B) that enables users to create accounts 7 or profiles specific to the medium or to import 8 profiles from another medium; and 9 (C) that enables one or more users to gen- 10 erate content that can be viewed by other third- 11 party users of the medium. 12 (5) OPERATOR.—The term ‘‘operator’’ means 13 any person who, in interstate or foreign commerce, 14 operates a website on the internet, an online service, 15 an online application, or a mobile application. 16 SEC. 3. PROHIBITED PRACTICES FOR SOCIAL MEDIA COM- 17 PANIES. 18 Beginning 3 months after the date of enactment of 19 this Act, it shall be unlawful for a social media company 20 to operate a social media platform that uses any of the 21 following practices: 22 (1) INFINITE SCROLL OR AUTO REFILL.—The 23 use of a process that automatically loads and dis- 24 plays additional content, other than music or video 25 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 2314 IS content that the user has prompted to play, when a 1 user approaches or reaches the end of loaded content 2 without requiring the user to specifically request 3 (such as by pushing a button or clicking an icon, but 4 not by simply continuing to scroll) that additional 5 content be loaded and displayed. 6 (2) ELIMINATION OF NATURAL STOPPING 7 POINTS.—The use of a process that, without the 8 user expressly requesting additional content, loads 9 and displays more content into a content feed than 10 the typical user scrolls through in 3 minutes. 11 (3) AUTOPLAY.—The use of a process that 12 automatically plays music or videos (other than ad- 13 vertisements) without an express, separate prompt 14 by the user (such as pushing a button or clicking an 15 icon), unless— 16 (A) before any content is loaded to the 17 user’s display, that user or a different user 18 compiled a playlist of multiple music videos or 19 audio files that the user designated should be 20 played without interruption, and the immediate 21 user selected one of the videos or files in that 22 precompiled playlist; or 23 (B) the predominant purpose of the social 24 media platform is to allow users to stream 25 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 2314 IS music, but only if the only files the platform 1 automatically plays are audio files or advertise- 2 ments. 3 (4) BADGES AND OTHER AWARDS LINKED TO 4 ENGAGEMENT WITH THE PLATFORM.—Providing a 5 user with an award for engaging with the social 6 media platform (such as a badge or other recogni- 7 tion of a user’s level of engagement with the plat- 8 form) if such award does not substantially increase 9 access to new or additional services, content, or 10 functionality. 11 SEC. 4. REQUIREMENTS FOR SOCIAL MEDIA COMPANIES. 12 (a) IN GENERAL.—Beginning 6 months after the 13 date of enactment of this Act, it shall be unlawful for a 14 social media company to operate a social media platform 15 if the platform does not include a user-friendly interface 16 that, with respect to such platform and any other social 17 media platform that is owned by the same social media 18 company or a subsidiary of that company— 19 (1) allows a user to set a time limit that blocks 20 the user’s own access to those platforms across all 21 devices if the amount of time the user spends on 22 those platforms within a certain period exceeds a 23 time limit set by the user using 1-minute increments 24 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 2314 IS and, at minimum, allows the user to set such time 1 limits for daily and weekly use; 2 (2) automatically limits the amount of time that 3 a user may spend on those platforms across all de- 4 vices to 30 minutes a day unless the user elects to 5 adjust or remove the time limit and, if the user 6 elects to increase or remove the time limit, resets the 7 time limit to 30 minutes a day on the first day of 8 every month; 9 (3) provides users with regular disclosures, in- 10 cluding immediate disclosures when prompted by the 11 user, of the amount of time the user has spent on 12 those platforms across all devices, broken down by 13 day, week, month, year, and platform; and 14 (4) displays a conspicuous pop-up to a user not 15 less than once every 30 minutes that the user spends 16 on those platforms, regardless of whether the user 17 spent the 30 minutes on multiple devices, that shows 18 how much time the user has spent on those plat- 19 forms that day. 20 (b) LIMITATION.—Subsection (a) shall not apply to 21 any portion of a social media platform that consists only 22 of a predominantly text-based, direct message service such 23 as email or a service that is substantially similar to email. 24 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 2314 IS SEC. 5. REQUIREMENTS FOR OPERATORS. 1 Beginning 6 months after the date of enactment of 2 this Act, it shall be unlawful for an operator to operate 3 an internet website, online service, online application, or 4 mobile application if the operator does not obtain the con- 5 sent of users or allow users to select from among options 6 in the following manner: 7 (1) NEUTRAL PRESENTATION.—If the operator 8 requests that a user accept or consent to terms, or 9 anything similar— 10 (A) by clicking an icon, the operator shall 11 present the user with an option to decline by 12 clicking an icon that is identical to the other 13 icon in terms of size, shape, font, and other vis- 14 ual or auditory design, except that the options 15 need not be identical in color as long as the op- 16 tion to decline is conspicuously shaded dif- 17 ferently than the immediate background color, 18 and such option to decline shall be placed be- 19 fore the option to consent as measured by the 20 direction the language in which the option is 21 written is conventionally read; and 22 (B) by taking some other action to consent 23 or accept, the operator shall present the user 24 with the option to decline by taking a similar, 25 equivalent action. 26 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 2314 IS (2) NO PRESELECTED OPTIONS.—When an op- 1 erator requests a user to make a selection from 2 among options, no option may be preselected. 3 SEC. 6. COMMISSION REPORT ON INTERNET ADDICTION. 4 Not less frequently than once every 3 years, the Com- 5 mission shall submit to Congress a report on the issue of 6 internet addiction and the processes through which social 7 media companies and other internet companies, by exploit- 8 ing human psychology and brain physiology, interfere with 9 free choices of individuals on the internet (including with 10 respect to the amount of time individuals spend online). 11 SEC. 7. POWERS OF THE COMMISSION. 12 (a) TEMPORARY JOINT RULEMAKING AUTHORITY.— 13 (1) IN GENERAL.—The Commission and the 14 Secretary of Health and Human Services (referred 15 to in this subsection as the ‘‘Secretary’’) may jointly 16 promulgate rules under this subsection to prohibit 17 practices by social media companies and operators 18 that exploit human psychology or brain physiology to 19 substantially interfere with consumers’ freedom of 20 choice. 21 (2) PROCEDURE.—The Commission and the 22 Secretary may jointly promulgate rules under this 23 subsection in accordance with section 553 of title 5, 24 United States Code. 25 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 2314 IS (3) SUNSET.—No rule promulgated by the 1 Commission and the Secretary under this subsection 2 shall be effective for a period that is longer than 3 3 years, but no period of time during which the Com- 4 mission is enjoined from enforcing such a rule pur- 5 suant to a court order issuing an injunction against 6 such rule or declaring such rule unlawful shall be 7 counted against such 3-year period. 8 (4) REPORT TO CONGRESS.—With respect to 9 any rule promulgated under this subsection, 1 year 10 before such rule is scheduled to expire the Commis- 11 sion and the Secretary shall issue a report to Con- 12 gress explaining the basis for the rule and its impor- 13 tance and notifying Congress of the date on which 14 the rule will expire if Congress does not enact the 15 requirements of the rule into statutory law. 16 (b) ENFORCEMENT BY THE COMMISSION.— 17 (1) IN GENERAL.—Except as otherwise pro- 18 vided, this Act and the regulations prescribed under 19 this Act shall be enforced by the Commission under 20 the Federal Trade Commission Act (15 U.S.C. 41 et 21 seq.). 22 (2) UNFAIR OR DECEPTIVE ACTS OR PRAC- 23 TICES.—A violation of this Act or a regulation pre- 24 scribed under this Act shall be treated as a violation 25 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 2314 IS of a rule defining an unfair or deceptive act or prac- 1 tice prescribed under section 18(a)(1)(B) of the Fed- 2 eral Trade Commission Act (15 U.S.C. 3 57a(a)(1)(B)). 4 (3) ACTIONS BY THE COMMISSION.—Except as 5 provided in subsection (c)(1), the Commission shall 6 prevent any person from violating this Act or a reg- 7 ulation prescribed under this Act in the same man- 8 ner, by the same means, and with the same jurisdic- 9 tion, powers, and duties as though all applicable 10 terms and provisions of the Federal Trade Commis- 11 sion Act (15 U.S.C. 41 et seq.) were incorporated 12 into and made a part of this Act, and any person 13 who violates this Act or a regulation prescribed 14 under this Act shall be subject to the penalties and 15 entitled to the privileges and immunities provided in 16 the Federal Trade Commission Act. 17 (4) 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) ENFORCEMENT BY STATE ATTORNEYS GEN- 21 ERAL.— 22 (1) IN GENERAL.— 23 (A) CIVIL ACTIONS.—In any case in which 24 the attorney general of a State has reason to 25 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 2314 IS believe that an interest of the residents of that 1 State has been or is threatened or adversely af- 2 fected by the engagement of any person in a 3 practice that violates this Act or a regulation 4 prescribed under this Act, the State, as parens 5 patriae, may bring a civil action on behalf of 6 the residents of the State in a district court of 7 the United States or a State court of appro- 8 priate jurisdiction to— 9 (i) enjoin that practice; 10 (ii) enforce compliance with this Act 11 or such regulation; 12 (iii) on behalf of residents of the 13 State, obtain damages, statutory damages, 14 restitution, or other compensation, each of 15 which shall be distributed in accordance 16 with State law; or 17 (iv) obtain such other relief as the 18 court may consider to be appropriate. 19 (B) NOTICE.— 20 (i) IN GENERAL.—Before filing an ac- 21 tion under subparagraph (A), the attorney 22 general of the State involved shall provide 23 to the Commission— 24 VerDate Sep 11 2014 03:10 Jul 31, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2314.IS S2314 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 2314 IS (I) written notice of that action; 1 and 2 (II) a copy of the complaint for 3 that action. 4 (ii) EXEMPTION.— 5 (I) IN GENERAL.—Clau [Text truncated for display. 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