Digital Platform Commission Act of 2023

II 118TH CONGRESS 1ST SESSION S. 1671 To establish a new Federal body to provide reasonable oversight and regulation of digital platforms. IN THE SENATE OF THE UNITED STATES MAY 18, 2023 Mr. BENNET (for himself and Mr. WELCH) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To establish a new Federal body to provide reasonable oversight and regulation of digital platforms. 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; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Digital Platform Commission Act of 2023’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. Sec. 2. Findings; sense of Congress. Sec. 3. Definitions. Sec. 4. Establishment of Federal Digital Platform Commission. Sec. 5. Jurisdiction. Sec. 6. Organization and general powers. VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1671 IS Sec. 7. Organization and functioning of the Commission. Sec. 8. Code Council. Sec. 9. Rulemaking authority, requirements, and considerations. Sec. 10. Systemically important digital platforms. Sec. 11. Inter-agency support. Sec. 12. Petitions. Sec. 13. Research. Sec. 14. Investigative authority. Sec. 15. HSR filings. Sec. 16. Enforcement by private persons and governmental entities. Sec. 17. Enforcement by Commission and Department of Justice. Sec. 18. Proceedings to enjoin, set aside, annul, or suspend orders of the Com- mission. Sec. 19. Report to Congress. Sec. 20. Authorization of appropriations. SEC. 2. FINDINGS; SENSE OF CONGRESS. 1 (a) FINDINGS.—Congress finds the following: 2 (1) In the United States and around the world, 3 digital platforms and online services play a central 4 role in modern life by providing new tools for com- 5 munication, commerce, entrepreneurship, and de- 6 bate. 7 (2) The United States takes pride in the suc- 8 cess of its technology sector, which leads the world 9 in innovation and dynamism, provides valuable serv- 10 ices to the people of the United States, and supports 11 thousands of good-paying jobs in the United States. 12 (3) In recent years, a few digital platforms have 13 benefitted from the combination of economies of 14 scale, network effects, and unique characteristics of 15 the digital marketplace to achieve vast power over 16 the economy, society, and democracy of the United 17 States. 18 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1671 IS (4) The last time Congress enacted legislation 1 to meaningfully regulate the technology or tele- 2 communications sector was the Telecommunications 3 Act of 1996 (Public Law 104–104; 110 Stat 56.), 4 years before many of today’s largest digital plat- 5 forms even existed. 6 (5) Digital platforms remain largely unregu- 7 lated and are left to write their own rules without 8 meaningful democratic input or accountability. 9 (6) The unregulated policies and operations of 10 some of the most powerful digital platforms have at 11 times produced demonstrable harm, including— 12 (A) undercutting small businesses; 13 (B) abetting the collapse of trusted local 14 journalism; 15 (C) enabling addiction and other harms to 16 the mental health of the people of the United 17 States, especially minors; 18 (D) disseminating disinformation and hate 19 speech; 20 (E) undermining privacy and monetizing 21 the personal data of individuals in the United 22 States without their informed consent; 23 (F) in some cases, radicalizing individuals 24 to violence; and 25 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1671 IS (G) perpetuating discriminatory treatment 1 of communities of color and underserved popu- 2 lations. 3 (7) The development of increasingly powerful 4 algorithmic processes for communication, research, 5 content generation, and decision making, such as 6 generative artificial intelligence, threatens to mag- 7 nify the harms identified in paragraph (6) without 8 mechanisms for proper oversight and regulation to 9 protect the public interest. 10 (8) The failure of the United States Govern- 11 ment to establish appropriate regulations for digital 12 platforms cedes to foreign competitors the historic 13 role played by the United States in setting reason- 14 able rules of the road and technical standards for 15 emerging technologies. 16 (9) Throughout the history of the United 17 States, Congress has often responded to the emer- 18 gence of powerful and complex new sectors of the 19 economy by empowering sector-specific expert Fed- 20 eral regulators. 21 (10) Throughout the history of the United 22 States, the Federal Government has established rea- 23 sonable regulation, consistent with the First Amend- 24 ment to the Constitution of the United States, to 25 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1671 IS promote a diversity of viewpoints, support civic en- 1 gagement, and preserve the right of citizens to com- 2 municate with each other, which is foundational to 3 self-governance. 4 (11) The unique power and complexity of sev- 5 eral digital platforms, combined with the absence of 6 modern Federal regulations, reinforces the need for 7 a new Federal body equipped with the authorities, 8 tools, and expertise to regulate digital platforms to 9 ensure their operations remain consistent, where ap- 10 propriate, with the public interest. 11 (b) SENSE OF CONGRESS.—It is the sense of Con- 12 gress that the Federal agency established under this Act 13 should— 14 (1) develop appropriate regulations and policies 15 grounded in the common law principles of the duty 16 of care and the duty to deal, insofar as those prin- 17 ciples are relevant and practical; and 18 (2) adopt, where relevant and practical, a risk 19 management regulatory approach that prioritizes an- 20 ticipating, limiting, and balancing against other in- 21 terests the broad economic, societal, and political 22 risks of harm posed by the activities and operations 23 of a person or class of persons. 24 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1671 IS SEC. 3. DEFINITIONS. 1 In this Act: 2 (1) ALGORITHMIC PROCESS.—The term ‘‘algo- 3 rithmic process’’ means a computational process, in- 4 cluding one derived from machine learning or other 5 artificial intelligence techniques, that processes per- 6 sonal information or other data for the purpose of— 7 (A) making a decision; 8 (B) generating content; or 9 (C) determining the order or manner in 10 which a set of information is provided, rec- 11 ommended to, or withheld from a user of a dig- 12 ital platform, including— 13 (i) the provision of commercial con- 14 tent; 15 (ii) the display of social media posts; 16 (iii) the display of search results or 17 rankings; or 18 (iv) any other method of automated 19 decision making, content selection, or con- 20 tent amplification. 21 (2) CODE COUNCIL; COUNCIL.—The term 22 ‘‘Code Council’’ or ‘‘Council’’ means the Code Coun- 23 cil established under section 8(a). 24 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1671 IS (3) COMMISSION.—The term ‘‘Commission’’ 1 means the Federal Digital Platform Commission es- 2 tablished under section 4. 3 (4) DIGITAL PLATFORM.— 4 (A) IN GENERAL.—The term ‘‘digital plat- 5 form’’ means an online service that serves as an 6 intermediary facilitating interactions— 7 (i) between users; and 8 (ii) between users and— 9 (I) entities offering goods and 10 services through the online service; or 11 (II) the online service with re- 12 spect to goods and services offered di- 13 rectly by the online service, including 14 content primarily generated by algo- 15 rithmic processes. 16 (B) DE MINIMIS EXCEPTION.— 17 (i) IN GENERAL.—Notwithstanding 18 subparagraph (A)(ii)(II), the term ‘‘digital 19 platform’’ does not include an entity that 20 offers goods and services to the public on- 21 line if the offering of goods and services 22 online is a de minimis part of the entity’s 23 overall business. 24 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1671 IS (ii) ONLINE SERVICES THAT DO NOT 1 QUALIFY FOR DE MINIMIS EXCEPTION.— 2 Notwithstanding clause (i), if an online 3 service described in subparagraph 4 (A)(ii)(II) is owned by an entity but is of- 5 fered through an affiliate, partnership, or 6 joint venture of, or is otherwise segregable 7 from, the entity— 8 (I) the online service shall be 9 considered a digital platform; and 10 (II) the entity shall not be con- 11 sidered a digital platform. 12 (C) SMALL DIGITAL PLATFORM BUSI- 13 NESSES.— 14 (i) IN GENERAL.—The term ‘‘digital 15 platform’’ does not include a small digital 16 platform business, except as provided in 17 clause (iii). 18 (ii) SBA RULEMAKING.—Not later 19 than 180 days after the date of enactment 20 of this Act, the Administrator of the Small 21 Business Administration shall by regula- 22 tion define the term ‘‘small digital plat- 23 form business’’ for purposes of clause (i). 24 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1671 IS (iii) NON-APPLICABILITY TO SYSTEM- 1 ICALLY IMPORTANT DIGITAL PLAT- 2 FORMS.—Clause (i) shall not apply to a 3 systemically important digital platform. 4 (D) NEWS ORGANIZATIONS.—The term 5 ‘‘digital platform’’ does not include an entity 6 whose primary purpose is the delivery to the 7 public of news that the entity writes, edits, and 8 reports. 9 (5) IMMEDIATE FAMILY MEMBER.—The term 10 ‘‘immediate family member’’, with respect to an indi- 11 vidual, means a spouse, parent, sibling, or child of 12 the individual. 13 (6) ONLINE SERVICE.—The term ‘‘online serv- 14 ice’’ includes a consumer-facing website, back-end 15 online-support system, or other facilitator of online 16 transactions and activities. 17 (7) SYSTEMICALLY IMPORTANT DIGITAL PLAT- 18 FORM.—The term ‘‘systemically important digital 19 platform’’ means a digital platform that the Com- 20 mission has designated as a systemically important 21 digital platform under section 10. 22 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1671 IS SEC. 4. ESTABLISHMENT OF FEDERAL DIGITAL PLATFORM 1 COMMISSION. 2 (a) ESTABLISHMENT.—There is established a com- 3 mission to be known as the ‘‘Federal Digital Platform 4 Commission’’, which shall— 5 (1) be constituted as provided in this Act; and 6 (2) execute and enforce the provisions of this 7 Act. 8 (b) PURPOSES OF COMMISSION.—The purpose of the 9 Commission is to regulate digital platforms, consistent 10 with the public interest, convenience, and necessity, to pro- 11 mote to all the people of the United States, so far as pos- 12 sible, the following: 13 (1) Access to digital platforms for civic engage- 14 ment and economic and educational opportunities. 15 (2) Access to government services and public 16 safety. 17 (3) Competition to encourage the creation of 18 new online services and innovation, and to provide to 19 consumers benefits such as lower prices and better 20 quality of service. 21 (4) Prevention of harmful levels of concentra- 22 tion of private power over critical digital infrastruc- 23 ture. 24 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1671 IS (5) A robust and competitive marketplace of 1 ideas with a diversity of views at the local, State, 2 and national levels. 3 (6) Protection for consumers, including those in 4 communities of color and underserved populations, 5 from deceptive, unfair, unjust, unreasonable, or abu- 6 sive practices committed by digital platforms. 7 (7) Assurance that the algorithmic processes of 8 digital platforms are fair, transparent, and safe. 9 (c) RULE OF CONSTRUCTION.—Nothing in this Act, 10 or any amendment made by this Act, shall be construed 11 to modify, impair, or supersede the applicability of any 12 antitrust laws. 13 SEC. 5. JURISDICTION. 14 (a) PLENARY JURISDICTION.—The Commission shall 15 have jurisdiction over any digital platform, the services of 16 which— 17 (1) originate or are received within the United 18 States; and 19 (2) affect interstate or foreign commerce. 20 (b) PROVISIONS RELATIVE TO SYSTEMICALLY IM- 21 PORTANT DIGITAL PLATFORMS.—Not later than 180 days 22 after the earliest date as of which not fewer than 3 Com- 23 missioners have been confirmed, the Commission shall de- 24 termine whether to promulgate rules, with input from the 25 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1671.IS S1671 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1671 IS Code Council as appropriate, to establish for systemically 1 important digital platforms— 2 (1) commercial and technical standards for— 3 (A) data portability; and 4 (B) interoperability, which shall be defined 5 as the functionality of information systems to— 6 (i) exchange data; and 7 (ii) enable sharing of information; 8 (2) requirements— 9 (A) for recommendation systems and other 10 algorithmic processes of systemically important 11 digital platforms to ensure that the algorithmic 12 processes are fair, transparent, and without 13 harmful, abusive, anticompetitive, or deceptive 14 bias; and 15 (B) for auditing, accountability, and 16 explainability of algorithmic processes; 17 (3) transparency requirements for terms of 18 service, including content moderation policies; 19 (4) requirements for regular public risk assess- 20 ments of the distribution of harmful content on a 21 systemically important digital platform and steps the 22 systemically important digital platform has taken, or 23 plans to take, to mitigate those harms, including 24 harms arising from algorithmic processes; 25 VerDate Sep 11 2014 04:34 Jun 03, 2023 Jkt 039200 PO 0000 [Text truncated for display. 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