[Congressional Bills 118th Congress] [From the U.S. Government Publishing Office] [S. 2597 Introduced in Senate (IS)] <DOC> 118th CONGRESS 1st Session S. 2597 To amend the Clayton Act to establish a new Federal commission to regulate digital platforms, including with respect to competition, transparency, privacy, and national security. _______________________________________________________________________ IN THE SENATE OF THE UNITED STATES July 27, 2023 Ms. Warren (for herself and Mr. Graham) introduced the following bill; which was read twice and referred to the Committee on the Judiciary _______________________________________________________________________ A BILL To amend the Clayton Act to establish a new Federal commission to regulate digital platforms, including with respect to competition, transparency, privacy, and national security. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Digital Consumer Protection Commission Act of 2023''. TITLE I--AMENDMENTS TO CLAYTON ACT SEC. 101. ESTABLISHMENT OF DIGITAL CONSUMER PROTECTION COMMISSION. The Clayton Act (15 U.S.C. 12 et seq.) is amended-- (1) by striking ``That (a)'' and inserting the following: ``DIVISION A--ORIGINAL ANTITRUST PROVISIONS ``Section 1. (a) The term''; (2) in division A, as so designated, by adding at the end the following: ``Sec. 29. (a) Any reference to `this Act' in this division shall be deemed to be a reference to this division. ``(b) Any reference to the Clayton Act in any other provision of law shall be deemed to be a reference to this division unless the provision specifically references division B of this Act or a provision in division B of this Act.''; and (3) by adding at the end the following: ``DIVISION B--DIGITAL CONSUMER PROTECTION COMMISSION ``SEC. 2001. TABLE OF CONTENTS. ``The table of contents for this division is as follows: ``Sec. 2001. Table of contents. ``Sec. 2002. Definitions. ``TITLE I--ESTABLISHMENT OF DIGITAL CONSUMER PROTECTION COMMISSION ``Subtitle A--Commission Structure, Jurisdiction, and Powers ``Sec. 2111. Establishment. ``Sec. 2112. Commissioners. ``Sec. 2113. Designation of acting chairperson; sessions; seal. ``Sec. 2114. Commission jurisdiction. ``Sec. 2115. Commission powers. ``Sec. 2116. Rulemaking authority. ``Sec. 2117. Advisory boards. ``Sec. 2118. Complaints. ``Subtitle B--Dominant Platforms ``Sec. 2121. Dominant platforms. ``TITLE II--TRANSPARENCY REFORM ``Sec. 2201. Transparency practices and appeal rights. ``Sec. 2202. Best practices. ``TITLE III--COMPETITION REFORM ``Subtitle A--Antitrust Review ``Sec. 2311. Abuses of dominance. ``Sec. 2312. Platform conflicts of interest. ``Sec. 2313. Future acquisitions. ``Sec. 2314. Retrospective reviews. ``Sec. 2315. Additional remedies. ``Sec. 2316. Contractual transparency. ``Sec. 2317. Prohibition on abusive acts or practices. ``Sec. 2318. Data brokers. ``Subtitle B--Data Portability and Interoperability. ``Sec. 2321. Data portability and interoperability. ``Subtitle C--Miscellaneous ``Sec. 2331. Rule of construction. ``TITLE IV--PRIVACY REFORM ``Subtitle A--Covered Entity Duties and Requirements. ``Sec. 2411. Duty of loyalty. ``Sec. 2412. Duty of care. ``Sec. 2413. Duty of mitigation. ``Sec. 2414. Duty of confidentiality; data collection and processing. ``Sec. 2415. Limitations on targeted advertising. ``Sec. 2416. Rights of data subjects to access, correction, portability, and deletion. ``Sec. 2417. Right to know. ``Subtitle B--Data Security Reform ``Sec. 2421. Data security safeguards. ``Sec. 2422. Civil penalties and damages for data breaches. ``Subtitle C--Miscellaneous ``Sec. 2431. Authority to propose and establish heightened requirements for dominant platform operators. ``TITLE V--NATIONAL SECURITY REFORM ``Sec. 2501. Corporate citizenship and ownership. ``Sec. 2502. Limitation of data processing in restricted countries. ``Sec. 2503. Bot and country-of-origin identifications. ``TITLE VI--LICENSES FOR OPERATORS OF DOMINANT PLATFORMS ``Sec. 2601. Licensing office. ``Sec. 2602. Requirement for operators of dominant platforms to obtain licenses. ``Sec. 2603. Revocation of license. ``Sec. 2604. Compliance certification. ``TITLE VII--ENFORCEMENT BY OTHER ENTITIES ``Sec. 2701. Enforcement by States, private parties, and Federal agencies. ``Sec. 2702. Exclusive jurisdiction. ``TITLE VIII--MISCELLANEOUS ``Sec. 2801. Funding. ``Sec. 2802. Interagency cooperation. ``Sec. 2803. Effective date. ``Sec. 2804. Rules of construction. ``Sec. 2805. Severability. ``SEC. 2002. DEFINITIONS. ``In this division: ``(1) Algorithm.-- ``(A) In general.--The term `algorithm' means a computational process derived from machine learning, statistics, or other data processing or artificial intelligence techniques, that processes data for the purpose of-- ``(i) making a decision or facilitating human decision-making; ``(ii) generating content; ``(iii) the display of search results or rankings; or ``(iv) any other method of automated decision-making, content selection, or content amplification. ``(B) Temporal scope.--The term `algorithm' encompasses a computational process described in subparagraph (A) as it evolves over time, not just at its original point of creation. ``(2) Business user.--The term `business user', with respect to a platform, means a person that uses or plans to use the platform for the sale or provision of products or services. ``(3) Child.--The term `child' means an individual younger than 18 years of age. ``(4) Clear and conspicuous.--The term `clear and conspicuous', with respect to a disclosure, means the disclosure is easily noticeable and easily understandable by ordinary consumers, including in each of the following ways: ``(A) In any communication that is solely visual or solely audible, the disclosure shall be made through the same means through which the communication is presented. ``(B) A visual disclosure, by its size, contrast, location, the length of time it appears, and other characteristics, shall stand out from any accompanying text or other visual elements so that the disclosure is easily noticed, read, and understood. ``(C) An audible disclosure, including by telephone or streaming video, shall be delivered in a volume, speed, and cadence sufficient for an ordinary consumer to easily hear and understand the disclosure. ``(D) In any communication using an interactive electronic medium, such as the internet or software, the disclosure shall be unavoidable. ``(E) The disclosure shall-- ``(i) use diction and syntax understandable to ordinary consumers; and ``(ii) appear in each language in which the communication in which the disclosure appears is presented. ``(F) The disclosure shall comply with the requirements under this paragraph in each medium through which the disclosure appears, including all electronic devices and face-to-face communications. ``(G) The disclosure may not be contradicted or mitigated by, or inconsistent with, anything else in the communication. ``(H) If the representation or sales practice targets a specific audience, such as children, the elderly, or the terminally ill, the term `ordinary consumer', as used in this paragraph, includes reasonable members of that audience. ``(5) Commission.--The term `Commission', except as otherwise provided, means the Digital Consumer Protection Commission established under section 2111. ``(6) Control.--The term `control', with respect to a person or platform, means-- ``(A) holding not less than 25 percent of the stock of the person or platform; ``(B) having the right to not less than 25 percent of the profits of the person or platform; ``(C) having the right to not less than 25 percent of the assets of the person or platform, in the event of the dissolution of the person or platform; ``(D) if the person or platform is a corporation, having the power to designate not less than 25 percent of the directors of the person or platform; ``(E) if the person or platform is a trust, having the power to designate not less than 25 percent of the trustees; or ``(F) otherwise exercising substantial ability to direct the actions of the person or platform. ``(7) Covered breach.--The term `covered breach' means any instance in which not less than 1 piece of personal data held by a covered entity is exposed, or is reasonably likely to have been exposed, to an unauthorized party. ``(8) Covered entity.-- ``(A) In general.--Subject to subparagraph (B), the term `covered entity'-- ``(i) means any person that collects, processes, or transfers personal data and-- ``(I) is subject to the Federal Trade Commission Act (15 U.S.C. 41 et seq.); or ``(II) is-- ``(aa) a bank, savings and loan institution described in section 18(f)(3) of the Federal Trade Commission Act (15 U.S.C. 57a(f)(3)), or Federal credit union described in section 18(f)(4) of such Act; ``(bb) a common carrier subject to the Acts to regulate commerce (as defined in section 4 of the Federal Trade Commission Act (15 U.S.C. 44)); ``(cc) an air carrier or foreign air carrier subject to the Federal Aviation Act of 1958 (49 U.S.C. App. 1301 et seq.); or ``(dd) a person, partnership, or corporation subject to the Packers and Stockyards Act, 1921, as amended; and ``(ii) includes any person that controls, is controlled by, or is under common control with the covered entity. ``(B) Exclusions.--Such term does not include-- ``(i) a Federal, State, Tribal, territorial, or local government entity such as a body, authority, board, bureau, commission, district, agency, or political subdivision of the Federal Government or a State, Tribal, territorial, or local government; ``(ii) a person that is collecting, processing, or transferring personal data on behalf of a Federal, State, Tribal, territorial, or local government entity, in so far as such person is acting as a service provider to the government entity; or ``(iii) an entity that serves as a congressionally designated nonprofit, national resource center, and clearinghouse to provide assistance to victims, families, child-serving professionals, and the general public on missing and exploited children issues. ``(9) Critical trading partner.--The term `critical trading partner' means an entity that has the ability to restrict or impede the access of a business user to-- ``(A) the users or customers of the business user; or ``(B) a tool or service that the business user needs to effectively serve the users or customers of the business user. ``(10) Data broker.--The term `data broker' means a person that collects, buys, licenses, or infers data about individuals and then sells, licenses, or trades that data in a commercial transaction. ``(11) Data processing.--The term `data processing'-- ``(A) means any operation or set of operations that is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, or erasure or destruction; and ``(B) includes the sale, resale, licensing, or trading of personal data. ``(12) De-identified data.--The term `de-identified data' means data, derived from sensitive personal data, that cannot reasonably be used to infer information about, or otherwise be linked to, an identified or identifiable individual or household, or a device linked to such an individual or household. ``(13) Dominant platform.--The term `dominant platform' has the meaning given the term in section 2121. ``(14) Governmental entity.--The term `governmental entity' means a department or agency of-- ``(A) the United States; ``(B) a State or political subdivision thereof; or ``(C) a foreign country or political subdivision thereof. ``(15) Operator.--The term `operator', with respect to a platform, means a person that owns or controls the platform. ``(16) Personal data.--The term `personal data'-- ``(A) means information collected through activity on a platform that identifies or is linked or reasonably linkable to-- ``(i) a user of the platform or any individual; or ``(ii) a device routinely used by or associated with a user of the platform or any individual; and ``(B) does not include-- ``(i) de-identified data; or ``(ii) publicly available information. ``(17) Platform.--The term `platform' means a website, online or mobile application, operating system, online advertising exchange, digital assistant, or other digital service that-- ``(A) enables a user to-- ``(i) generate content that can be viewed by other users on the website, online or mobile application, operating system, online advertising exchange, digital assistant, or other digital service; or ``(ii) interact with other content on the website, online or mobile application, operating system, online advertising exchange, digital assistant, or other digital service; ``(B) facilitates the offering, sale, purchase, payment, or shipping of products or services, including software applications and online advertising, among consumers or businesses not controlled by the website, online or mobile application, operating system, online advertising exchange, digital assistant, or other digital service; or ``(C) enables user searches or queries that access or display a large volume of information. ``(18) Platform conflict of interest.--The term `platform conflict of interest' means the conflict of interest that arises when a person owns or controls a platform while simultaneously-- ``(A) owning or controlling a line of business that competes against third parties on that platform, if the person has the ability and incentive to, or does-- ``(i) advantage its own business on the platform over third-party competitors on the platform; or ``(ii) disadvantage the business of third- party competitors on the platform; or ``(B) representing both buyers and sellers for transactions or business on the platform. ``(19) Restricted country.--The term `restricted country' means a country for which a prohibition or a policy of denial applies under section 126.1 of title 22, Code of Federal Regulations (or a successor regulation). ``(20) Sensitive personal data.-- ``(A) In general.--The term `sensitive personal data' means any of the following forms of personal