,i #aaith ,,congress #ast ,session ,h4 ,r4 #bhhi ,,in ,,the ,,house ,,of ,,representatives ,april #aj1 #bjbe,ms4 ,schakowsky 7for herself and ,ms4 ,castor of ,florida7 introduced the following bill2 which was referred to the ,committee on ,energy and ,commerce ,a ,,bill ,to clarify that a violation of certain terms of service and related materials is an unfair or deceptive act or practice and subject to enforcement by the ,federal ,trade ,commission4 #a4 ,short title ,this ,act may be cited as the ,online ,consumer ,protection ,act4 #b4 ,terms of service required for social media platforms and online marketplaces 7a7 ,in general ,each social media platform or online marketplace shall establish1 maintain1 and make publicly available at all times and in a machine-readable format1 terms of service in a manner that is clear1 easily understood1 and written in plain and concise language4 ,the terms of service shall meet the following requirements3 7#a7 ,the terms of service shall include-- 7,a7 any terms or conditions of use of any service provided by such person to a consumer2 7,b7 any policies of such person with regard to such service or use of such service by a consumer2 and 7,c7 the consumer protection policy consistent with subsection 7b74 7#b7 ,the terms of service shall cover issues related to the behavior of a service or a user of such service1 and shall at a minimum include terms of use related to-- 7,a7 payment methods2 7,b7 content ownership1 including content generated by a user2 7,c7 policies related to sharing user content with third parties2 7,d7 any disclaimers1 limitations1 notices of nonliability1 or the consequences of not agreeing to or complying with the terms of service2 and 7,e7 any other topic the ,commission deems appropriate4 7b7 ,required consumer protection policy 7#a7 ,for social media platforms ,for social media platforms1 the consumer protection policy required by subsection 7a7 shall include-- 7,a7 a description of the content and behavior permitted or prohibited on its service both by the platform and by users2 7,b7 whether content may be blocked1 removed1 or modified1 or if service to users may be terminated and the grounds upon which such actions will be taken2 7,c7 whether a person can request that content be blocked1 removed1 or modified1 or that a user's service be terminated1 and how to make such a request2 7,d7 a description of how a user will be notified of and can respond to a request that his or her content be blocked1 removed1 or modified1 or service be terminated1 if such actions are taken2 7,e7 whether a user who requested content be blocked1 removed1 or modified will be notified of whether action was taken as a result of the request1 the action that was taken1 the reason why action was taken or not taken1 and how the user will be notified2 7,f7 how a person can appeal a decision to block1 remove1 or modify content1 allow content to remain1 or terminate or not terminate service to a user1 if such actions are taken2 7,g7 a description of how a user will be notified of the result of the appeal2 7,h7 a description of the tools and support available to users who have experienced cyber harassment2 and 7,i7 any other topic the ,commission deems appropriate4 7#b7 ,for online marketplaces ,for online marketplaces1 the consumer protection policy required by subsection 7a7 shall include-- 7,a7 a description of the products1 product descriptions1 and marketing material1 allowed or disallowed on the marketplace2 7,b7 whether a product1 product descriptions1 and marketing material may be blocked1 removed1 or modified1 or if service to a user may be terminated and the grounds upon which such actions will be taken2 7,c7 whether users will be notified of products that have been recalled or are dangerous1 and how they will be notified2 7,d7 for users-- 7i7 whether a user can report suspected fraud1 deception1 dangerous products1 or violations of the online marketplace's terms of service1 and how to make such report2 7ii7 whether a user who submitted a report will be notified of whether action was taken as a result of the report1 the action that was taken and the reason why action was taken or not taken1 and how the user will be notified2 7iii7 how to appeal the result of a report2 7iv7 whether a user who appealed the result of a report will be notified of whether action was taken as a result of the appeal1 the action that was taken1 the reason why action was taken or not taken1 and how the user will be notified2 and 7v7 under what circumstances a user is entitled to refund1 repair1 or other remedy and the remedy to which the user may be entitled1 how the user will be notified of such entitlement1 and how the user may claim such remedy2 and 7,e7 for sellers-- 7i7 how sellers are notified of a report by a user or a violation of the terms of service or consumer protection policy2 7ii7 how to contest a report by a user2 7iii7 how a seller who is the subject of a report will be notified of what action will be or must be taken as a result of the report and the justification for such action2 7iv7 how to appeal a decision of the online marketplace to take an action in response to a user report or for a violation of the terms of service or consumer protection policy2 and 7v7 the policy regarding refunds1 repairs1 replacements1 or other remedies as a result of a user report or a violation of the terms of service or consumer protection policy4 7c7 ,standard short-,form statements and graphic icons for consumer protection practices 7#a7 ,study and report ,not later than #ahj days after the date of the enactment of this ,act1 the ,commission shall conduct a study to determine the most effective method of communicating common consumer protection practices in short-form consumer disclosure statements or graphic icons that disclose the consumer protection and content moderation practices of social media platforms and online marketplaces4 ,the ,commission shall submit a report to the ,committee on ,energy and ,commerce of the ,house of ,representatives and the ,committee on ,commerce1 ,science1 and ,transportation of the ,senate with the results of the study4 ,the report shall also be made publicly available on the website of the ,commission4 7#b7 ,regulations ,except as provided in paragraph 7#c71 after completion of the study and not later than #a year after the date of the enactment of this ,act1 the ,commission shall finalize regulations based on the results of such study that require social media platforms and online marketplaces to communicate their consumer protection and content moderation practices1 and any other information as the ,commission may determine1 in a clear and conspicuous manner4 7#c7 ,exception ,if the ,commission determines1 by a majority vote of the ,commissioners1 that short-form consumer disclosure statements or graphic icons will not advance consumer understanding of consumer protection and content moderation practices of social media platforms and online marketplaces1 the ,commission shall include its reasoning for making that determination in the report to ,congress required by paragraph 7#a7 and shall not finalize the rulemaking until it determines such rules would advance consumer understanding of consumer protection and content moderation practices of social media platforms and online marketplaces4 #c4 ,consumer protection program 7a7 ,in general ,each social media platform and online marketplace shall establish and implement a consumer protection program that includes policies1 practices1 and procedures regarding consumer protection and content moderation-- 7#a7 to-- 7,a7 ensure compliance with applicable ,federal1 ,state1 and local consumer protection laws2 7,b7 develop1 implement1 and ensure compliance with the terms of service required by section #b2 7,c7 develop and implement policies regarding the content and behavior permitted on its service both by the platform and users1 and ensure compliance with such policies1 practices and procedures2 7,d7 mitigate risks that could be harmful to consumers' safety1 well-being1 and reasonable expectations of users of the social media platform or online marketplace1 including cyber harassment2 7,e7 implement reasonable safeguards within1 and training and education of employees and contractors of1 the social media platform or online marketplace to promote compliance with all consumer protection laws and the consumer protection program2 and 7,f7 disclose any other requirement the ,commission deems appropriate2 and 7#b7 taking into consideration-- 7,a7 the size of1 and the nature1 scope1 and complexity of the activities engaged in by the social media platform and online marketplace2 7,b7 the activities engaged in by users on the social media platform or online marketplace2 and 7,c7 the cost of implementing the program4 7b7 ,additional requirements ,as part of the consumer protection program1 a social media platform or online marketplace shall-- 7#a7 establish processes to monitor1 manage1 and enforce the social media platform's or online marketplace's consumer protection program1 and demonstrate the covered entity's compliance with ,federal1 ,state1 and local consumer protection laws2 7#b7 establish processes to assess and mitigate the risks to individuals resulting from the social media platform's or online marketplace's amplification of content or products not in compliance with its terms of service2 7#c7 establish a process to periodically review and update the consumer protection program2 7#d7 appoint a consumer protection officer1 who reports directly to the chief executive officer2 and 7#e7 establish and implement controls to monitor and mitigate known or reasonably foreseeable risks to consumers resulting from hosting content or products4 7c7 ,annual filings to the ,,ftc 7#a7 ,filing requirements ,each social media platform or online marketplace that either has annual revenue in excess of #bej1jjj in the prior year or that has more than #aj1jjj monthly active users on average in the prior year1 shall be required to submit to the ,commission1 on an annual basis1 a filing that includes-- 7,a7 a detailed and granular description of each of the requirements in section #b and this section2 7,b7 the name and contact information of the consumer protection officer required under subsection 7b77#d72 and 7,c7 a description of any material changes in the consumer protection program or the terms of service since the most recent prior disclosure to the ,commission4 7#b7 ,officer certification ,for each entity that submits an annual filing under paragraph 7#a71 the entity's principal executive officer and the consumer protection officer required under subsection 7b77#d71 shall be required to certify in each such annual filing that-- 7,a7 the signing officer has reviewed the filing2 7,b7 based on such officer's knowledge1 the filing does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements1 in light of the circumstances under which such statements were made1 not misleading2 7,c7 based on such officer's knowledge1 the filing fairly presents in all material respects the consumer protection practices of the social media platform or online marketplace2 and 7,d7 the signing consumer protection officer-- 7i7 is responsible for establishing and maintaining safeguards and controls to protect consumers and administer the consumer protection program2 and 7ii7 has provided all material conclusions about the effectiveness of such safeguards and controls4 7#c7 ,public availability ,the ,commission shall make publicly available on the website of the ,commission the filings submitted under paragraph 7#a74 ,the ,commission may withhold information included in such a filing if the ,commission determines such information should not be public4 ,if the ,commission withholds any information1 the ,commission shall make publicly available on the website the category of information withheld and the reasons for withholding it4 #d4 ,enforcement 7a7 ,enforcement by ,federal ,trade ,commission 7#a7 ,unfair or deceptive acts or practices ,any violation of this ,act shall be treated as a violation of a regulation under section #ah7;a77#a77;,b7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #eg;a7a77#a77;,b77 regarding unfair or deceptive acts or practices4 7#b7 ,powers of ,commission ,the ,commission shall enforce this ,act in the same manner1 by the same means1 and with the same jurisdiction1 powers1 and duties as though all applicable terms and provisions of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq47 were incorporated into and made a part of this ,act4 ,any person who violates this ,act shall be subject to the penalties and entitled to the privileges and immunities provided in the ,federal ,trade ,commission ,act4 7b7 ,regulations ,the ,commission shall promulgate regulations under section #eec of title #e1 ,united ,states ,code1 to carry out the purposes of this ,act4 7c7 ,private right of action 7#a7 ,enforcement by individuals 7,a7 ,in general ,an individual alleging damages as a result of a violation of this ,act may bring a civil action in any court of competent jurisdiction1 ,state or ,federal4 7,b7 ,relief ,in a civil action brought under subparagraph 7,a7 in which the plaintiff prevails1 the court may award-- 7i7 damages as provided in subparagraph 7,c72 7ii7 reasonable attorney's fees and litigation costs2 and 7iii7 any other relief1 including equitable or declaratory relief1 that the court determines appropriate4 7,c7 ,damages ,a prevailing plaintiff is entitled to actual damages as a result of the violation of this ,act4 7#b7 ,invalidity of pre-dispute arbitration agreements and pre-dispute joint-action waivers 7,a7 ,in general ,notwithstanding any other provision of law1 no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a dispute arising under this ,act4 7,b7 ,applicability ,any determination as to whether or how this paragraph applies to any dispute shall be made by a court1 rather than an arbitrator1 without regard to whether such agreement purports to delegate such determination to an arbitrator4 7,c7 ,definitions ,in this paragraph3 7i7 ,pre-dispute arbitration agreement ,the term pre-dispute arbitration agreement means any agreement to arbitrate a dispute that has not arisen at the time of making the agreement4 7ii7 ,pre-dispute joint-action waiver ,the term pre-dispute joint-action waiver means an agreement1 whether or not part of a pre-dispute arbitration agreement1 that would prohibit1 or waive the right of1 one of the parties to the agreement to participate in a joint1 class1 or collective action in a judicial1 arbitral1 administration1 or other forum1 concerning a dispute that has not yet arisen at the time of making the agreement4 7iii7 ,dispute ,the term dispute means any claim related to an alleged violation of this ,act and between an individual and a covered organization4 7d7 ,enforcement by ,state attorneys general 7#a7 ,in general ,if the chief law enforcement officer of a ,state1 or an official or agency designated by a ,state1 has reason to believe that any person has violated or is violating this ,act1 the attorney general1 official1 or agency of the ,state1 in addition to any authority it may have to bring an action in ,state court under its consumer protection law1 may bring a civil action in any appropriate ,united ,states district court or in any other court of competent jurisdiction1 including a ,state court1 to-- 7,a7 enjoin further such violation by such person2 7,b7 enforce compliance with this ,act2 7,c7 obtain civil penalties2 and 7,d7 obtain damages1 restitution1 or other compensation on behalf of residents of the ,state4 7#b7 ,notice and intervention by the ,,ftc ,the attorney general of a ,state shall provide prior written notice of any action under paragraph 7#a7 to the ,commission and provide the ,commission with a copy of the complaint in the action1 except in any case in which such prior notice is not feasible1 in which case the attorney general shall serve such notice immediately upon instituting such action4 ,the ,commission shall have the right-- 7,a7 to intervene in the action2 7,b7 upon so intervening1 to be heard on all matters arising therein2 and 7,c7 to file petitions for appeal4 7#c7 ,limitation on ,state action while ,federal action is pending ,if the ,commission has instituted a civil action for violation of this ,act1 no ,state attorney general1 or official or agency of a ,state1 may bring an action under this subsection during the pendency of that action against any defendant named in the complaint of the ,commission for any violation of this ,act alleged in the complaint4 7#d7 ,relationship with ,state-law claims ,if the attorney general of a ,state has authority to bring an action under ,state law directed at acts or practices that also violate this ,act1 the attorney general may assert the ,state-law claim and a claim under this ,act in the same civil action4 #e4 ,relationship to other laws 7a7 ,effect of other laws ,section #bcj of the ,communications ,act of #aicd 7#dg ,u4,s4,c4 #bcj7 shall not apply to any violation of this ,act4 7b7 ,effect on ,state laws ,nothing in this ,act or any regulation promulgated under this ,act shall preempt or otherwise affect any ,state or local law4 7c7 ,severability ,if any provision of this ,act1 or the application thereof to any person or circumstance1 is held invalid1 the remainder of this ,act and the application of such provision to other persons not similarly situated or to other circumstances shall not be affected by the invalidation4 #f4 ,,ftc enforcement authority 7a7 ,in general ,section #bcj7;e7 of the ,communications ,act of #aicd 7#dg ,u4,s4,c4 #bcj7;e77 is amended by adding at the end the following3 7#f7 ,no effect on ,,ftc enforcement ,nothing in this section shall be construed to impair the enforcement by the ,federal ,trade ,commission of any provision of law enforced by the ,federal ,trade ,commission4 4 7b7 ,applicability ,the amendment made by this section shall apply with respect to any action or proceeding that is commenced on or after the date of the enactment of this ,act4 #g4 ,definitions ,as used in this ,act1 the following definitions apply3 7#a7 ,commission ,the term ,commission means the ,federal ,trade ,commission4 7#b7 ,consumer product ,the term consumer product has the meaning given such term in section #c7;a7 of the ,consumer ,product ,safety ,act 7#ae ,u4,s4,c4 #bjeb7;a774 7#c7 ,cyber harassment ,the term cyber harassment means electronic communication that harasses1 torments1 threatens1 or terrorizes a target4 7#d7 ,online marketplace ,the term online marketplace means a website or web application1 that-- 7,a7 includes features that allow for1 facilitate1 or enable third-party sellers to engage in the sale1 purchase1 payment1 storage1 shipping1 or delivery of a consumer product in the ,united ,states2 and 7,b7 hosts one or more third-party sellers4 7#e7 ,seller ,the term seller means a person or entity that sells1 offers to sell1 or contracts to sell a consumer product through an online marketplace's platform4 7#f7 ,social media platform ,the term social media platform means a website or mobile web application that-- 7,a7 permits a person to become a registered user1 establish an account1 or create a profile for the purpose of allowing the user to create1 share1 and view user-generated content through such an account or profile2 7,b7 enables one or more users to generate content that can be viewed by other users of the platform2 and 7,c7 primarily serves as a medium for users to interact with content generated by other users of the medium and for the platform to deliver ads to users4 7#g7 ,user ,the term user means a person or entity that uses a social media platform or online marketplace for any purpose1 including advertisers and sellers1 regardless of whether that person has an account or is otherwise registered with the platform4