ACCESS Act of 2019

II 116TH CONGRESS 1ST SESSION S. 2658 To promote competition and reduce consumer switching costs in the provision of online communications services. IN THE SENATE OF THE UNITED STATES OCTOBER 22, 2019 Mr. WARNER (for himself, Mr. HAWLEY, and Mr. BLUMENTHAL) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To promote competition and reduce consumer switching costs in the provision of online communications services. 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 2019’’ or the ‘‘ACCESS Act of 2019’’. 6 SEC. 2. DEFINITIONS. 7 In this Act: 8 (1) COMMISSION.—The term ‘‘Commission’’ 9 means the Federal Trade Commission. 10 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 2658 IS (2) COMMUNICATIONS PROVIDER.—The term 1 ‘‘communications provider’’ means a consumer-fac- 2 ing communications and information services pro- 3 vider. 4 (3) COMPETING COMMUNICATIONS PROVIDER.— 5 The term ‘‘competing communications provider’’, 6 with respect to a large communications platform 7 provider, means another communications provider 8 offering, or planning to offer, similar products or 9 services to consumers. 10 (4) COMPETING COMMUNICATIONS SERVICE.— 11 The term ‘‘competing communications service’’, with 12 respect to a large communications platform, means 13 a similar product or service provided by a competing 14 communications provider. 15 (5) CUSTODIAL THIRD-PARTY AGENT.—The 16 term ‘‘custodial third-party agent’’ means an entity 17 that is duly authorized by a user to interact with a 18 large communications platform provider on that 19 user’s behalf to manage the user’s online inter- 20 actions, content, and account settings. 21 (6) INTEROPERABILITY INTERFACE.—The term 22 ‘‘interoperability interface’’ means an electronic 23 interface maintained by a large communications 24 platform for purposes of achieving interoperability. 25 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 2658 IS (7) LARGE COMMUNICATIONS PLATFORM.—The 1 term ‘‘large communications platform’’ means a 2 product or service provided by a communications 3 provider that— 4 (A) generates income, directly or indirectly, 5 from the collection, processing, sale, or sharing 6 of user data; and 7 (B) has more than 100,000,000 monthly 8 active users in the United States. 9 (8) LARGE COMMUNICATIONS PLATFORM PRO- 10 VIDER.—The term ‘‘large communications platform 11 provider’’ means a communications provider that 12 provides, manages, or controls a large communica- 13 tions platform. 14 (9) USER DATA.— 15 (A) IN GENERAL.—The term ‘‘user data’’ 16 means information that is— 17 (i) collected directly by a communica- 18 tions provider; and 19 (ii) linked, or reasonably linkable, to a 20 specific person. 21 (B) EXCLUSION.—The term ‘‘user data’’ 22 does not include information that is rendered 23 unusable, unreadable, de-identified, or 24 anonymized. 25 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 2658 IS SEC. 3. PORTABILITY. 1 (a) GENERAL DUTY OF LARGE COMMUNICATIONS 2 PLATFORM PROVIDERS.—A large communications plat- 3 form provider shall, for each large communications plat- 4 form it operates, maintain a set of transparent, third- 5 party-accessible interfaces (including application program- 6 ming interfaces) to initiate the secure transfer of user data 7 to a user, or to a competing communications provider act- 8 ing at the direction of a user, in a structured, commonly 9 used, and machine-readable format. 10 (b) GENERAL DUTY OF COMPETING COMMUNICA- 11 TIONS PROVIDERS.—A competing communications pro- 12 vider that receives ported user data from a large commu- 13 nications platform provider shall reasonably secure any 14 user data it acquires. 15 (c) EXEMPTION FOR CERTAIN SERVICES.—The obli- 16 gations under this section shall not apply to a product or 17 service by which a large communications platform provider 18 does not generate any income or other compensation, di- 19 rectly or indirectly, from collecting, using, or sharing user 20 data. 21 SEC. 4. INTEROPERABILITY. 22 (a) GENERAL DUTY OF LARGE COMMUNICATIONS 23 PLATFORM PROVIDERS.—A large communications plat- 24 form provider shall, for each large communications plat- 25 form it operates, maintain a set of transparent, third- 26 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 2658 IS party-accessible interfaces (including application program- 1 ming interfaces) to facilitate and maintain technically 2 compatible, interoperable communications with a user of 3 a competing communications provider. 4 (b) GENERAL DUTY OF COMPETING COMMUNICA- 5 TIONS PROVIDERS.—A competing communications pro- 6 vider that accesses an interoperability interface of a large 7 communications platform provider shall reasonably secure 8 any user data it acquires, processes, or transmits. 9 (c) INTEROPERABILITY OBLIGATIONS FOR LARGE 10 COMMUNICATIONS PLATFORM PROVIDERS.— 11 (1) IN GENERAL.—In order to achieve inter- 12 operability under subsection (a), a large communica- 13 tions platform provider shall fulfill the duties under 14 paragraphs (2) through (6) of this subsection. 15 (2) NON-DISCRIMINATION.— 16 (A) IN GENERAL.—A large communica- 17 tions platform provider shall facilitate and 18 maintain interoperability with competing com- 19 munications services for each of its large com- 20 munications platforms through an interoper- 21 ability interface, based on fair, reasonable, and 22 nondiscriminatory terms. 23 (B) REASONABLE THRESHOLDS, ACCESS 24 STANDARDS, AND FEES.— 25 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 2658 IS (i) IN GENERAL.—A large commu- 1 nications platform provider may establish 2 reasonable thresholds related to the fre- 3 quency, nature, and volume of requests by 4 a competing communications provider to 5 access resources maintained by the large 6 communications platform provider, beyond 7 which the large communications platform 8 provider may assess a reasonable fee for 9 such access. 10 (ii) USAGE EXPECTATIONS.—A large 11 communications platform provider may es- 12 tablish fair, reasonable, and nondiscrim- 13 inatory usage expectations to govern access 14 by competing communications providers, 15 including fees or penalties for providers 16 that exceed those usage expectations. 17 (iii) LIMITATION ON FEES AND USAGE 18 EXPECTATIONS.—Any fees, penalties, or 19 usage expectations assessed under clauses 20 (i) and (ii) shall be reasonably proportional 21 to the cost, complexity, and risk to the 22 large communications platform provider of 23 providing such access. 24 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 2658 IS (iv) NOTICE.—A large communica- 1 tions platform provider shall provide public 2 notice of any fees, penalties, or usage ex- 3 pectations that may be established under 4 clauses (i) and (ii), including reasonable 5 advance notice of any changes. 6 (v) SECURITY AND PRIVACY STAND- 7 ARDS.—A large communications platform 8 provider shall, consistent with industry 9 best practices, set privacy and security 10 standards for access by competing commu- 11 nications services to the extent reasonably 12 necessary to address a threat to the large 13 communications platform or user data, and 14 shall report any suspected violations of 15 those standards to the Commission. 16 (C) PROHIBITED CHANGES TO INTER- 17 FACES.—A change to an interoperability inter- 18 face or terms of use made with the purpose, or 19 substantial effect, of unreasonably denying ac- 20 cess or undermining interoperability for com- 21 peting communications services shall be consid- 22 ered a violation of the duty under subparagraph 23 (A) to facilitate and maintain interoperability 24 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 2658 IS based on fair, reasonable, and nondiscrim- 1 inatory terms. 2 (3) FUNCTIONAL EQUIVALENCE.—A large com- 3 munications platform provider that maintains inter- 4 operability between its own large communications 5 platform and other products, services, or affiliated 6 offerings of such provider shall offer a functionally 7 equivalent version of that interface to competing 8 communications services. 9 (4) INTERFACE INFORMATION.— 10 (A) IN GENERAL.—Not later than 120 11 days after the date of enactment of this Act, a 12 large communications platform provider shall 13 disclose to competing communications providers 14 complete and accurate documentation describ- 15 ing access to the interoperability interface re- 16 quired under this section. 17 (B) CONTENTS.—The documentation re- 18 quired under subparagraph (A)— 19 (i) is limited to interface documenta- 20 tion necessary to achieve development and 21 operation of interoperable products and 22 services; and 23 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 2658 IS (ii) does not require the disclosure of 1 the source code of a large communications 2 platform. 3 (5) NOTICE OF CHANGES.—A large communica- 4 tions platform provider shall provide reasonable ad- 5 vance notice to a competing communications pro- 6 vider, which may be provided through public notice, 7 of any change to an interoperability interface main- 8 tained by the large communications platform pro- 9 vider that will affect the interoperability of a com- 10 peting communications service. 11 (6) NON-COMMERCIALIZATION BY A LARGE 12 COMMUNICATIONS PLATFORM PROVIDER.—A large 13 communications platform provider may not collect, 14 use, or share user data obtained from a competing 15 communications service through the interoperability 16 interface except for the purposes of safeguarding the 17 privacy and security of such information or main- 18 taining interoperability of services. 19 (d) NON-COMMERCIALIZATION BY A COMPETING 20 COMMUNICATIONS PROVIDER.—A competing communica- 21 tions provider that accesses an interoperability interface 22 may not collect, use, or share user data obtained from a 23 large communications platform provider through the inter- 24 operability interface except for the purposes of safe- 25 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 2658 IS guarding the privacy and security of such information or 1 maintaining interoperability of services. 2 (e) EXEMPTION FOR CERTAIN SERVICES.—The obli- 3 gations under this section shall not apply to a product or 4 service by which a large communications platform provider 5 does not generate any income or other compensation, di- 6 rectly or indirectly, from collecting, using, or sharing user 7 data. 8 SEC. 5. DELEGATABILITY. 9 (a) GENERAL DUTY OF LARGE COMMUNICATIONS 10 PLATFORM PROVIDERS.—A large communications plat- 11 form provider shall maintain a set of transparent third- 12 party-accessible interfaces by which a user may delegate 13 a custodial third-party agent to manage the user’s online 14 interactions, content, and account settings on a large com- 15 munications platform on the same terms as a user. 16 (b) AUTHENTICATION.—Not later than 180 days 17 after the date of enactment of this Act, the Commission 18 shall establish rules and procedures to facilitate a custo- 19 dial third-party agent’s ability to obtain access pursuant 20 to subsection (a) in a way that ensures that a request for 21 access on behalf of a user is a verifiable request. 22 (c) REGISTRATION WITH THE COMMISSION.—A cus- 23 todial third-party agent shall register with the Commission 24 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 2658 IS as a condition of, and prior to, accessing an interface de- 1 scribed in subsection (a). 2 (d) DEREGISTRATION BY THE COMMISSION.—The 3 Commission shall establish rules and procedures to 4 deregister a custodial third-party agent that the Commis- 5 sion determines has violated the duties established in this 6 section. 7 (e) REVOCATION OF ACCESS RIGHTS.—A large com- 8 munications platform provider may revoke or deny access 9 for any custodial third-party agent that— 10 (1) fails to register with the Commission; or 11 (2) repeatedly facilitates fraudulent or mali- 12 cious activity. 13 (f) DUTIES OF A CUSTODIAL THIRD-PARTY 14 AGENT.—A custodial third-party agent— 15 (1) shall reasonably safeguard the privacy and 16 security of user data provided to it by a user, or 17 accessed on a user’s behalf; 18 (2) shall not access or manage a user’s online 19 interactions, content, or account settings in any way 20 that— 21 (A) will benefit the custodial third-party 22 agent to the detriment of the user; 23 (B) will result in any reasonably foresee- 24 able harm to the user; or 25 VerDate Sep 11 2014 18:59 Oct 24, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2658.IS S2658 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 2658 IS (C) is inconsistent with the directions or 1 reasonable expectations of the user; and 2 (3) shall not collect, use, or share any user data 3 provided to it by a user, or accessed on a user’s be- 4 half, for the commercial benefit of the custodial 5 third-party agent. 6 (g) FEES.—A custodial third-party agent may charge 7 users a fee for the provision of the products or services 8 described in subsection (a). 9 (h) EXTENT OF ACCESS RIGHTS.—Nothing in this 10 section shall be construed to confer greater rights of ac- 11 cess for a custodial third-party agent to a large commu- 12 nications platform than are accessible to a user. 13 SEC. 6. IMPLEMENTATION AND ENFORCEMENT. 14 (a) REGULATIONS.—Not later than 1 year after the 15 date of enactment of this Act, the Commission shall pro- 16 mulgate regulations to implement section 4(c)(2)(B)(v) 17 [Text truncated for display. Full text available on Congress.gov.]