DETOUR Act

I 116TH CONGRESS 2D SESSION H. R. 8975 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 HOUSE OF REPRESENTATIVES DECEMBER 16, 2020 Ms. BLUNT ROCHESTER introduced the following bill; which was referred to the Committee on Energy and Commerce 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 the following definition apply: 7 (1) BEHAVIORAL OR PSYCHOLOGICAL EXPERI- 8 MENT, RESEARCH, OR STUDY.—The term ‘‘behav- 9 VerDate Sep 11 2014 00:46 Dec 31, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 8975 IH ioral or psychological experiment, research, or 1 study’’ means the study, including through human 2 experimentation, of overt or observable actions and 3 mental phenomena inferred from behavior, including 4 interactions between and among individuals and the 5 activities of social 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 that serves to protect the wel- 17 fare, rights, and privacy of users and is formally 18 designated by a large online operator to review, ap- 19 prove the initiation of, and conduct periodic review 20 of, any behavioral or psychological experiment, re- 21 search, or study, conducted by such an operator or 22 by any entity directed by such an operator to con- 23 duct such behavioral or psychological experiment, re- 24 search, or study, involving human subjects. 25 VerDate Sep 11 2014 00:46 Dec 31, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 8975 IH (5) INFORMED CONSENT.—The term ‘‘informed 1 consent’’— 2 (A) means the express, affirmative consent 3 freely given by a user immediately prior to any 4 user data being collected from such user for any 5 behavioral or psychological experiment, re- 6 search, or study, where such user is provided 7 adequate and understandable information— 8 (i) to allow for an informed decision 9 about voluntary participation in such a be- 10 havioral or psychological experiment, re- 11 search, or study; and 12 (ii) to ensure the understanding of 13 such user of the information and any asso- 14 ciated benefits, risks, or consequences of 15 participation prior to obtaining the vol- 16 untary agreement to participate by the 17 user; and 18 (B) does not include— 19 (i) the consent of an individual under 20 the age of 18; 21 (ii) language that limits or purports 22 to limit the liability of a large online oper- 23 ator; or 24 VerDate Sep 11 2014 00:46 Dec 31, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 8975 IH (iii) the consent to a provision con- 1 tained in a general contract or service 2 agreement. 3 (6) LARGE ONLINE OPERATOR.—The term 4 ‘‘large online operator’’ means any person that— 5 (A) provides an online service; 6 (B) has more than 100,000,000 authenti- 7 cated users of an online service in any 30-day 8 period; and 9 (C) is subject to the jurisdiction of the 10 Commission under the Federal Trade Commis- 11 sion Act (15 U.S.C. 41 et seq.). 12 (7) ONLINE SERVICE.—The term ‘‘online serv- 13 ice’’ means a website or interactive computer service, 14 other than an internet access service, that is made 15 available to the public over the internet and enables 16 users to generate content that can be viewed by 17 other users of the service or that connects users for 18 the purpose of such users engaging in dialogue, 19 sharing information, or otherwise interacting. 20 (8) PARENTAL CONSENT.—The term ‘‘parental 21 consent’’ means the verifiable consent of a parent or 22 guardian for a child under the age of 18 who uses 23 an online service. 24 VerDate Sep 11 2014 00:46 Dec 31, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 8975 IH (9) USER.—The term ‘‘user’’ means any indi- 1 vidual who uses an online service. 2 (10) USER DATA.—The term ‘‘user data’’ 3 means any information relating to an identified or 4 identifiable individual user, whether directly sub- 5 mitted to the large online operator by the user or de- 6 rived from the observed activity of the user by the 7 large online operator. Such term includes any such 8 information purchased or otherwise obtained from 9 third parties. 10 (11) USER INTERFACE.—The term ‘‘user inter- 11 face’’ refers to any content accessible to a user of an 12 online service or means by which a user interacts 13 with such online service or engages with other users 14 of an online service. 15 (12) VERIFIABLE CONSENT.—The term 16 ‘‘verifiable consent’’ means the express, affirmative 17 consent freely given by a user to be subjected to the 18 intended effect or effects of a user interface for an 19 online service that is— 20 (A) specific, informed, and unambiguous; 21 and 22 (B) given without the exchange of any fi- 23 nancial or other incentives for such consent. 24 VerDate Sep 11 2014 00:46 Dec 31, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 8975 IH SEC. 3. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RE- 1 LATING TO THE MANIPULATION OF USER 2 INTERFACES. 3 (a) CONDUCT PROHIBITED.— 4 (1) IN GENERAL.—It shall be unlawful for any 5 large online operator— 6 (A) to design, modify, or manipulate a user 7 interface of an online service with the purpose 8 or substantial effect of obscuring, subverting, or 9 impairing user autonomy, decision making, or 10 choice to obtain consent or user data; 11 (B) to conduct a behavioral or psycho- 12 logical experiment, research, or study of users 13 of an online service, except with the informed 14 consent of each user involved; 15 (C) to design, modify, or manipulate a user 16 interface of an online service with the purpose 17 or substantial effect of cultivating compulsive 18 usage, including video auto-play functions initi- 19 ated without verifiable consent of a user; or 20 (D) to design, modify, or manipulate a 21 user interface on an online service, or portion 22 thereof, that is directed to an individual under 23 the age of 18, with the purpose or substantial 24 effect of increasing usage of an online service 25 VerDate Sep 11 2014 00:25 Jan 02, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 8975 IH through which a user interacts with other users 1 without parental consent. 2 (b) DUTIES OF LARGE ONLINE OPERATORS.—Any 3 large online operator that engages in any form of behav- 4 ioral or psychological experiment, research, or study based 5 on the activity or data of its users shall— 6 (1) disclose, on a routine basis, but not less 7 than once each 90 days, the general purpose of any 8 such behavioral or psychological experiment, re- 9 search, or study to each user whose user data is or 10 was during the previous 90-day period subject to or 11 included in any such behavioral or psychological ex- 12 periment, research, or study; 13 (2) state on its online platform and readily ac- 14 cessible to a user through its user interface, any be- 15 havioral or psychological experiment, research, or 16 study whose purpose is to increase user engagement 17 with the online service or to encourage users to take 18 any action to convert such users into purchasers of 19 any additional product or service offered by such on- 20 line service; 21 (3) present the disclosures described in para- 22 graphs (1) and (2) in a manner that— 23 (A) is clear, conspicuous, context-appro- 24 priate, and easily accessible; and 25 VerDate Sep 11 2014 00:25 Jan 02, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 8975 IH (B) is not deceptively obscured; 1 (4) discontinue any behavioral or psychological 2 experiment, research, or study, if informed consent 3 or parental consent was determined by such large 4 online operator to be inappropriately acquired, or 5 has reason to believe that such consent was inappro- 6 priately acquired, and cannot obtain such consent 7 within 48 hours of such determination, for the proc- 8 essing of user data for behavioral or psychological 9 experiment, research, or study; 10 (5) establish an independent review board for 11 any behavioral or psychological research, of any pur- 12 pose, conducted on users or on the basis of user ac- 13 tivity or data, which shall review and have authority 14 to approve, require modification in, or disapprove all 15 behavioral or psychological experiments, research, or 16 studies; and 17 (6) ensure that such independent review board 18 established under paragraph (5) shall register with 19 the Commission, including providing to the Commis- 20 sion— 21 (A) the names and resumes of every board 22 member; 23 VerDate Sep 11 2014 00:25 Jan 02, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 8975 IH (B) the composition and reporting struc- 1 ture of the board to the management of the op- 2 erator; 3 (C) the process by which the board is to be 4 notified of proposed studies or modifications 5 along with the processes by which the board is 6 capable of vetoing or amending such proposals; 7 (D) any compensation provided to board 8 members; and 9 (E) any conflict of interest that might 10 exist concerning a board member’s participation 11 in the board. 12 (c) REGISTERED PROFESSIONAL STANDARDS 13 BODY.— 14 (1) REGISTRATION.—An association of large 15 online operators may register as a professional 16 standards body by filing with the Commission an ap- 17 plication for registration in such form as the Com- 18 mission, by rule, may prescribe containing the rules 19 of the association and such other information and 20 documents as the Commission, by rule, may pre- 21 scribe as necessary or appropriate in the public in- 22 terest or for protecting the welfare of users of large 23 online operators. 24 VerDate Sep 11 2014 00:46 Dec 31, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 8975 IH (2) DETERMINATION BY THE COMMISSION.—An 1 association of large online operators may not reg- 2 ister as a professional standards body unless the 3 Commission determines that— 4 (A) the association is so organized and has 5 the capacity to enforce compliance by its mem- 6 bers and persons associated with its members, 7 with the provisions of this Act; 8 (B) the rules of the association provide 9 that any large online operator may become a 10 member of such association; 11 (C) the rules of the association assure a 12 fair representation of its members in the selec- 13 tion of its directors and administration of its 14 affairs and provide that one or more directors 15 shall be representative of users and not be asso- 16 ciated with, or receive any direct or indirect 17 funding from, a member of the association or 18 any large online operator; 19 (D) the rules of the association are de- 20 signed to prevent exploitative and manipulative 21 acts or practices, to promote transparent and 22 fair principles of technology development and 23 design, to promote research in keeping with 24 best practices for behavioral or psychological ex- 25 VerDate Sep 11 2014 00:46 Dec 31, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 8975 IH periments, research, or studies or the designs of 1 a user interfaces and informed consent, and to 2 continually evaluate industry practices and 3 issue binding guidance consistent with the ob- 4 jectives of this Act; 5 (E) the rules of the association provide 6 that its members and persons associated with 7 its members shall be appropriately disciplined 8 for violation of any provision of this Act, the 9 rules or regulations thereunder, or the rules of 10 the association, by expulsion, suspension, limi- 11 tation of activities or functions, fine, censure, 12 being suspended or barred from being associ- 13 ated with a member, or any other appropriate 14 sanction; and 15 (F) the rules of the association are in ac- 16 cordance with the provisions of this Act, and, in 17 general, provide a fair procedure for the dis- 18 ciplining of members and persons associated 19 with members, the denial of membership to any 20 person seeking membership therein, the barring 21 of any person from becoming associated with a 22 member thereof, and the prohibition or limita- 23 tion by the association of any person with re- 24 VerDate Sep 11 2014 00:46 Dec 31, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8975.IH H8975 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 8975 IH spect to access to services offered by the asso- 1 ciation or a member thereof. 2 (3) RESPONSIBILITIES AND ACTIVITIES.—Any 3 association registered under paragraph (1) shall de- 4 velop, on a continuing basis, guidance and bright- 5 line rules for the development and design of tech- 6 nology products of large online operators consistent 7 with the duties of a large online operator described 8 under subsection (b). 9 (d) ENFORCEMENT BY THE COMMISSION.— 10 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 11 TICE.—A violation of subsection (a) or (b) shall be 12 treated as a violation of a rule defining an unfair or 13 deceptive act or practice under section 18(a)(1)(B) 14 of the Federal Trade Commission Act (15 U.S.C. 15 57a(a)(1)(B)). 16 (2) REGULATIONS.—Not later than one year 17 after the date of enactment of this Act, the Commis- 18 sion shall prescribe regulations under section 553 of 19 title 5, United States Code, that— 20 (A) establish rules and procedures for ob- [Text truncated for display. 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