[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