Filter Bubble Transparency Act

II 116TH CONGRESS 1ST SESSION S. 2763 To require that internet platforms give users the option to engage with a platform without being manipulated by algorithms driven by user- specific data. IN THE SENATE OF THE UNITED STATES OCTOBER 31, 2019 Mr. THUNE (for himself, Mr. BLUMENTHAL, Mr. MORAN, Mrs. BLACKBURN, and Mr. WARNER) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To require that internet platforms give users the option to engage with a platform without being manipulated by algorithms driven by user-specific data. 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 ‘‘Filter Bubble Trans- 4 parency Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) ALGORITHMIC RANKING SYSTEM.—The 8 term ‘‘algorithmic ranking system’’ means a com- 9 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 2763 IS putational process, including one derived from algo- 1 rithmic decision making, machine learning, statis- 2 tical analysis, or other data processing or artificial 3 intelligence techniques, used to determine the order 4 or manner that a set of information is provided to 5 a user on a covered internet platform, including the 6 ranking of search results, the provision of content 7 recommendations, the display of social media posts, 8 or any other method of automated content selection. 9 (2) COMMISSION.—The term ‘‘Commission’’ 10 means the Federal Trade Commission. 11 (3) CONNECTED DEVICE.—The term ‘‘con- 12 nected device’’ means a physical object that— 13 (A) is capable of connecting to the inter- 14 net, either directly or indirectly through a net- 15 work, to communicate information at the direc- 16 tion of an individual; and 17 (B) has computer processing capabilities 18 for collecting, sending, receiving, or analyzing 19 data. 20 (4) COVERED INTERNET PLATFORM.— 21 (A) IN GENERAL.—The term ‘‘covered 22 internet platform’’ means any public-facing 23 website, internet application, or mobile applica- 24 tion, including a social network site, video shar- 25 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 2763 IS ing service, search engine, or content aggrega- 1 tion service. 2 (B) EXCLUSIONS.—Such term shall not in- 3 clude a platform that— 4 (i) is wholly owned, controlled, and 5 operated by a person that— 6 (I) for the most recent 6-month 7 period, did not employ more than 500 8 employees; 9 (II) for the most recent 3-year 10 period, averaged less than 11 $50,000,000 in annual gross receipts; 12 and 13 (III) collects or processes on an 14 annual basis the personal data of less 15 than 1,000,000 individuals; or 16 (ii) is operated for the sole purpose of 17 conducting research that is not made for 18 profit either directly or indirectly. 19 (5) INPUT-TRANSPARENT ALGORITHM.— 20 (A) IN GENERAL.—The term ‘‘input-trans- 21 parent algorithm’’ means an algorithmic rank- 22 ing system that does not use the user-specific 23 data of a user to determine the order or man- 24 ner that information is furnished to such user 25 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 2763 IS on a covered internet platform, unless the user- 1 specific data is expressly provided to the plat- 2 form by the user for such purpose. 3 (B) INCLUSION OF AGE-APPROPRIATE CON- 4 TENT FILTERS.—Such term shall include an al- 5 gorithmic ranking system that uses user-specific 6 data to determine whether a user is old enough 7 to access age-restricted content on a covered 8 internet platform, provided that the system oth- 9 erwise meets the requirements of subparagraph 10 (A). 11 (C) DATA PROVIDED FOR EXPRESS PUR- 12 POSE OF INTERACTION WITH PLATFORM.—For 13 purposes of subparagraph (A), user-specific 14 data that is provided by a user for the express 15 purpose of determining the order or manner 16 that information is furnished to a user on a 17 covered internet platform— 18 (i) shall include user-supplied search 19 terms, filters, speech patterns (if provided 20 for the purpose of enabling the platform to 21 accept spoken input or selecting the lan- 22 guage in which the user interacts with the 23 platform), saved preferences, and the 24 user’s current geographical location; 25 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 2763 IS (ii) shall include data supplied to the 1 platform by the user that expresses the 2 user’s desire that information be furnished 3 to them, such as the social media profiles 4 the user follows, the video channels the 5 user subscribes to, or other sources of con- 6 tent on the platform the user follows; 7 (iii) shall not include the history of 8 the user’s connected device, including the 9 user’s history of web searches and brows- 10 ing, geographical locations, physical activ- 11 ity, device interaction, and financial trans- 12 actions; and 13 (iv) shall not include inferences about 14 the user or the user’s connected device, 15 without regard to whether such inferences 16 are based on data described in clause (i). 17 (6) OPAQUE ALGORITHM.— 18 (A) IN GENERAL.—The term ‘‘opaque al- 19 gorithm’’ means an algorithmic ranking system 20 that determines the order or manner that infor- 21 mation is furnished to a user on a covered 22 internet platform based, in whole or part, on 23 user-specific data that was not expressly pro- 24 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 2763 IS vided by the user to the platform for such pur- 1 pose. 2 (B) EXCEPTION FOR AGE-APPROPRIATE 3 CONTENT FILTERS.—Such term shall not in- 4 clude an algorithmic ranking system used by a 5 covered internet platform if— 6 (i) the only user-specific data (includ- 7 ing inferences about the user) that the sys- 8 tem uses is information relating to the age 9 of the user; and 10 (ii) such information is only used to 11 restrict a user’s access to content on the 12 basis that the individual is not old enough 13 to access such content. 14 (7) SEARCH SYNDICATION CONTRACT; UP- 15 STREAM PROVIDER; DOWNSTREAM PROVIDER.— 16 (A) SEARCH SYNDICATION CONTRACT.— 17 The term ‘‘search syndication contract’’ means 18 a contract or subcontract for the sale, license, 19 or other right to access an index of web pages 20 on the internet for the purpose of operating an 21 internet search engine. 22 (B) UPSTREAM PROVIDER.—The term 23 ‘‘upstream provider’’ means, with respect to a 24 search syndication contract, the person that 25 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 2763 IS grants access to an index of web pages on the 1 internet to a downstream provider under the 2 contract. 3 (C) DOWNSTREAM PROVIDER.—The term 4 ‘‘downstream provider’’ means, with respect to 5 a search syndication contract, the person that 6 receives access to an index of web pages on the 7 internet from an upstream provider under such 8 contract. 9 (8) USER-SPECIFIC DATA.—The term ‘‘user- 10 specific data’’ means information relating to an indi- 11 vidual or a specific connected device that would not 12 necessarily be true of every individual or device. 13 SEC. 3. REQUIREMENT TO ALLOW USERS TO SEE 14 UNMANIPULATED CONTENT ON INTERNET 15 PLATFORMS. 16 (a) IN GENERAL.—Beginning on the date that is 1 17 year after the date of enactment of this Act, it shall be 18 unlawful— 19 (1) for any person to operate a covered internet 20 platform that uses an opaque algorithm unless the 21 person complies with the requirements of subsection 22 (b); or 23 (2) for any upstream provider to grant access 24 to an index of web pages on the internet under a 25 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 2763 IS search syndication contract that does not comply 1 with the requirements of subsection (c). 2 (b) OPAQUE ALGORITHM REQUIREMENTS.— 3 (1) IN GENERAL.—The requirements of this 4 subsection with respect to a person that operates a 5 covered internet platform that uses an opaque algo- 6 rithm are the following: 7 (A) The person provides notice to users of 8 the platform that the platform uses an opaque 9 algorithm that makes inferences based on user- 10 specific data to select the content the user sees. 11 Such notice shall be presented in a clear, con- 12 spicuous manner on the platform whenever the 13 user interacts with an opaque algorithm for the 14 first time, and may be a one-time notice that 15 can be dismissed by the user. 16 (B) The person makes available a version 17 of the platform that uses an input-transparent 18 algorithm and enables users to easily switch be- 19 tween the version of the platform that uses an 20 opaque algorithm and the version of the plat- 21 form that uses the input-transparent algorithm 22 by selecting a prominently placed icon, which 23 shall be displayed wherever the user interacts 24 with an opaque algorithm. 25 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 2763 IS (2) NONAPPLICATION TO CERTAIN DOWN- 1 STREAM PROVIDERS.—Paragraph (1) shall not apply 2 with respect to an internet search engine if— 3 (A) the search engine is operated by a 4 downstream provider with fewer than 1,000 em- 5 ployees; and 6 (B) the search engine uses an index of web 7 pages on the internet to which such provider re- 8 ceived access under a search syndication con- 9 tract. 10 (c) SEARCH SYNDICATION CONTRACT REQUIRE- 11 MENT.—The requirements of this subsection with respect 12 to a search syndication contract are that— 13 (1) as part of the contract, the upstream pro- 14 vider makes available to the downstream provider 15 the same input-transparent algorithm used by the 16 upstream provider for purposes of complying with 17 subsection (b)(1)(B); and 18 (2) the upstream provider does not impose any 19 additional costs, degraded quality, reduced speed, or 20 other constraint on the functioning of such algo- 21 rithm when used by the downstream provider to op- 22 erate an internet search engine relative to the per- 23 formance of such algorithm when used by the up- 24 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 2763 IS stream provider to operate an internet search en- 1 gine. 2 SEC. 4. ENFORCEMENT BY FEDERAL TRADE COMMISSION. 3 (a) UNFAIR OR DECEPTIVE ACTS OR PRACTICES.— 4 A violation of this Act by an operator of a covered internet 5 platform shall be treated as a violation of a rule defining 6 an unfair or deceptive act or practice prescribed under sec- 7 tion 18(a)(1)(B) of the Federal Trade Commission Act 8 (15 U.S.C. 57a(a)(1)(B)). 9 (b) POWERS OF COMMISSION.— 10 (1) IN GENERAL.—Except as provided in para- 11 graph (3), the Federal Trade Commission shall en- 12 force this Act in the same manner, by the same 13 means, and with the same jurisdiction, powers, and 14 duties as though all applicable terms and provisions 15 of the Federal Trade Commission Act (15 U.S.C. 41 16 et seq.) were incorporated into and made a part of 17 this Act. 18 (2) PRIVILEGES AND IMMUNITIES.—Except as 19 provided in paragraph (3), any person who violates 20 this Act shall be subject to the penalties and entitled 21 to the privileges and immunities provided in the 22 Federal Trade Commission Act (15 U.S.C. 41 et 23 seq.). 24 VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 2763 IS (3) COMMON CARRIERS AND NONPROFIT ORGA- 1 NIZATIONS.—Notwithstanding section 4, 5(a)(2), or 2 6 of the Federal Trade Commission Act (15 U.S.C. 3 44, 45(a)(2), 46) or any jurisdictional limitation of 4 the Commission, the Commission shall also enforce 5 this Act, in the same manner provided in paragraphs 6 (1) and (2) of this paragraph, with respect to— 7 (A) common carriers subject to the Com- 8 munications Act of 1934 (47 U.S.C. 151 et 9 seq.) and Acts amendatory thereof and supple- 10 mentary thereto; and 11 (B) organizations not organized to carry 12 on business for their own profit or that of their 13 members. 14 (4) AUTHORITY PRESERVED.—Nothing in this 15 Act shall be construed to limit the authority of the 16 Commission under any other provision of law. 17 Æ VerDate Sep 11 2014 21:48 Nov 04, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S2763.IS S2763 pamtmann on DSKBC07HB2PROD with BILLS