Augmenting Compatibility and Competition by Enabling Service Switching Act of 2021 or the ACCESS Act of 2021
This bill requires large online platforms (e.g., YouTube, Salesforce) to facilitate consumers and businesses switching from one platform to another.
Specifically, the platforms must maintain interfaces that (1) securely transfer user data to other platforms (i.e., portability), and (2) allow other platforms to connect and communicate with their systems (i.e., interoperability).
The bill provides the Federal Trade Commission (FTC) and the Department of Justice with the authority to designate specific platforms to which these requirements apply. After a platform is designated, the FTC must issue standards of interoperability specific to the platform. A platform may not change its interoperability interface without petitioning the FTC, and the platform must provide to competing businesses documentation for accessing the interface.
Further, the FTC must establish a technical committee to assist with the implementation of these requirements.
The bill provides the FTC with authority to enforce these requirements including through recovery of civil penalties and injunctive relief.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3849 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 3849
To promote competition, lower entry barriers, and reduce switching
costs for consumers and businesses online.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 11, 2021
Ms. Scanlon (for herself, Mr. Owens, Mr. Cicilline, Mr. Buck, and Mr.
Nadler) introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To promote competition, lower entry barriers, and reduce switching
costs for consumers and businesses online.
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 ``Augmenting Compatibility and
Competition by Enabling Service Switching Act of 2021'' or the ``ACCESS
Act of 2021''.
SEC. 2. UNFAIR METHOD OF COMPETITION.
A violation of this Act, or standards issued pursuant to this Act,
by a person, partnership, or corporation operating a covered platform,
in or affecting commerce, shall be an unfair method of competition in
violation of section 5(a)(1) of the Federal Trade Commission Act (15
U.S.C. 45).
SEC. 3. PORTABILITY.
(a) In General.--A covered platform shall maintain a set of
transparent, third-party-accessible interfaces (including application
programming interfaces) to enable the secure transfer of data to a
user, or with the affirmative consent of a user, to a business user at
the direction of a user, in a structured, commonly used, and machine-
readable format that complies with the standards issued pursuant to
section 6(c).
(b) Data Security.--
(1) In general.--A competing business or a potential
competing business that receives ported user data from a
covered platform shall reasonably secure any user data it
acquires, and shall take reasonable steps to avoid introducing
security risks to data or the covered platform's information
systems.
(2) Violation.--A failure to comply with this section is a
violation of this Act and subject to the enforcement under
sections 9 and 10 of this Act.
(3) Termination of access.--The Commission may require the
covered platform to cease the transfer of data to a competing
or potentially competing business that the Commission finds has
violated this section or standards adopted by the Commission
under section 6(c) of this Act.
(c) Portability Obligations.--In order to achieve portability under
subsection (a), a covered platform shall comply with the standards
issued under section 6(c) by the Commission.
SEC. 4. INTEROPERABILITY.
(a) In General.--A covered platform shall maintain a set of
transparent, third-party-accessible interfaces (including application
programming interfaces) to facilitate and maintain interoperability
with a competing business or a potential competing business that
complies with the standards issued pursuant to section 6(c).
(b) Data Security.--
(1) In general.--A competing business or a potential
competing business that accesses an interoperability interface
of a covered platform shall reasonably secure any user data it
acquires, processes, or transmits, and shall take reasonable
steps to avoid introducing security risks to user data or the
covered platform's information systems.
(2) Violation.--A failure to comply with this section is a
violation of this Act and subject to the enforcement under
sections 9 and 10 of this Act.
(3) Termination of access.--The Commission may require the
covered platform to cease interoperating with a competing or
potentially competing business that the Commission finds has
violated this section or standards adopted by the Commission
under section 6(c) of this Act.
(c) Interoperability Obligations.--In order to achieve
interoperability under subsection (a), a covered platform shall comply
with the standards issued under section 6(c) by the Commission.
(d) Security and Privacy Standards.--Consistent with standards
issued by the Commission under section 6(c) of this Act, a covered
platform shall set privacy and security standards for access by
competing businesses or potential competing businesses to the extent
reasonably necessary to address a threat to the covered platform or
user data, and shall report any suspected violations of those standards
to the Commission.
(e) Prohibited Changes to Interfaces.--
(1) Commission approval.--A covered platform may make a
change that may affect its interoperability interface by
petitioning the Commission to approve a proposed change. The
Commission shall allow the change if, after consulting with the
relevant technical committee the Commission concludes that the
change is not being made with the purpose or effect of
unreasonably denying access or undermining interoperability for
competing businesses or potential competing businesses.
(2) Exception.--A covered platform may make a change
affecting its interoperability interfaces without receiving
approval from the Commission if that change is necessary to
address a security vulnerability or other exigent circumstance
that creates an imminent risk to user privacy or security if
the change is narrowly tailored to the vulnerability and does
not have the purpose or effect of unreasonably denying access
or undermining interoperability for competing businesses or
potential competing businesses.
(3) Interface information.--
(A) In general.--Not later than 120 days after the
adoption of a rule by the Commission under section 6(c)
of this Act, a covered platform shall provide to
competing businesses or potential competing businesses
complete and accurate documentation describing access
to the interoperability interface required under this
section.
(B) Contents.--The documentation required under
subparagraph (A) is limited to interface documentation
necessary to achieve development and operation of
interoperable products and services.
(4) Notice of changes.--A covered platform shall provide
reasonable advance notice to a competing business or a
potential competing business, which may be provided through
public notice, of any change to an interoperability interface
maintained by the covered platform that will affect the
interoperability of a competing business or a potential
competing business.
(f) Data Minimization.--
(1) Non-commercialization by a covered platform.--A covered
platform shall not collect, use, or share user data obtained
from a business user through the interoperability interface
except for the purposes of safeguarding the privacy and
security of such information or maintaining interoperability of
services.
(2) Non-commercialization of data on a covered platform.--A
business user shall not collect, use, or share the data of a
user on a covered platform except for the purposes of
safeguarding and security of such data or maintaining
interoperability of services.
SEC. 5. DEFINITIONS.
In this Act:
(1) Person.--The term ``person'' has the meaning given the
term in subsection (a) of section 1 of the Clayton Act (15
U.S.C. 12).
(2) Affirmative express consent.--The term ``affirmative
express consent'' means an affirmative action of the consumer
to make a choice following a clear and conspicuous disclosure
to the consumer, separate and apart from any ``privacy
policy'', ``terms of service'', ``terms of service'', ``consent
for research'', or other similar document, of--
(A) the types of Personal Information that
Respondent will disclose to third parties;
(B) the reason for such disclosures;
(C) the identity of all such third parties;
(D) any opportunities consumers have to decline or
rescind consent for such disclosures; and
(E) how consumers may exercise any such
opportunities.
An affirmative action does not include obtaining a consumer's
approval for a preselected default option.
(3) Clear and conspicuous disclosure.--The term ``clear and
conspicuous disclosure'' means that a required disclosure is
difficult to miss such that it is easily noticeable and easily
understandable by ordinary consumers, including in all of the
following ways:
(A) In any communication that is solely visual or
solely audible, the disclosure must be made through the
same means through which the communication is
presented. In any communication made through both
visual and audible means, such as a television
advertisement, the disclosure must be presented
simultaneously in both the visual and audible portions
of the communication even if the representation
requiring the disclosure (``triggering
representation'') is made through only one means.
(B) A visual disclosure, by its size, contrast,
location, the length of time it appears, and other
characteristics, must stand out from any accompanying
text or other visual elements so that it is easily
noticed, read, and understood.
(C) An audible disclosure, including by telephone
or streaming video, must be delivered in a volume,
speed, and cadence sufficient for ordinary consumers to
easily hear and understand it.
(D) In any communication using an interactive
electronic medium, such as the Internet or software,
the disclosure must be unavoidable.
(E) The disclosure must use diction and syntax
understandable to ordinary consumers and must appear in
each language in which the triggering representation
appears.
(F) The disclosure must comply with these
requirements in each medium through which it is
received, including all electronic devices and face-to-
face communications.
(G) The disclosure must not be contradicted or
mitigated by, or inconsistent with, anything else in
the communication.
(H) When the representation or sales practice
targets a specific audience, such as children, the
elderly, or the terminally ill, ``ordinary consumers''
includes reasonable members of that group.
(4) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(5) Control.--The term ``control'' with respect to a person
means--
(A) holding 25 percent or more of the stock of the
person;
(B) having the right to 25 percent or more of the
profits of the person;
(C) having the right to 25 percent or more of the
assets of the person, in the event of the person's
dissolution;
(D) if the person is a corporation, having the
power to designate 25 percent or more of the directors
of the person;
(E) if the person is a trust, having the power to
designate 25 percent or more of the trustees; or
(F) otherwise exercises substantial control over
the person.
(6) Covered platform.--The term ``covered platform'' means
an online platform--
(A) that has been designated as a ``covered
platform'' under section 6(a); or
(B) that--
(i) at the time of the Commission's or the
Department of Justice's designation under
section 2(d), or any of the twelve months
preceding that time, or in any of the 12 months
preceding the filing of a complaint for an
alleged violation of this Act--
(I) has at least 50,000,000 United
States-based monthly active users on
the online platform; or
(II) has at least 100,000 United
States-based monthly active business
users on the platform;
(ii) is owned or controlled by a person
with net annual sales, or a market
capitalization greater than $600,000,000,000,
adjusted for inflation on the basis of the
Consumer Price Index, at the time of the
Commission's or the Department of Justice's
designation under section 6(a) or any of the
two years preceding that time, or at any time
in the 2 years preceding the filing of a
complaint for an alleged violation of this Act;
and
(iii) is a critical trading partner for the
sale or provision of any product or service
offered on or directly related to the online
platform.
(7) Covered platform operator.--The term ``covered platform
operator'' means a person that, directly or indirectly, owns or
controls a covered platform.
(8) Critical trading partner.--The term ``critical trading
partner'' means a trading partner that has the ability to
restrict or impede--
(A) the access of a business user to its users or
customers; or
(B) the access of a business user to a tool or
service that it needs to effectively serve its users or
customers.
(9) Data.--
(A) In general.--Not later than 6 months after the
date of enactment of this Act, the Commission shall
adopt rules in accordance with section 553 of title 5,
United States Code, to define the term ``data'' for the
purpose of implementing and enforcing this Act.
(B) Data.--The term ``data'' shall include
information that is collected by or provided to a
covered platform or competing business or a potential
competing business that is linked, or reasonably
linkable, to a specific user, user device, or customer
of the covered platform or a competing business or a
potential competing business.
(C) Exclusion.--The term ``data'' shall not include
proprietary data that does not pertain to the user or a
user device of the covered platform. The Commission
shall narrowly construe the term ``proprietary data''
for the purposes of this Act.
(10) Business user.--The term ``business user'' means a
person that utilizes or plans to utilize the covered platform
for the sale or provision of products or services.
(11) Interoperability interface.--The term
``interoperability interface'' means an electronic interface
maintained by a covered platform for purposes of achieving
interoperability.
(12) Online platform.--The term ``online platform'' means a
website, online or mobile application, operating system,
digital assistant, or online service that--
(A) enables a user to generate content that can be
viewed by other users on the platform or to interact
with other content on the platform;
(B) facilitates the offering, sale, purchase,
payment, or shipping of goods or services, including
software applications, between and among consumers or
businesses not controlled by the platform; or
(C) enables user searches or queries that access or
display a large volume of information.
SEC. 6. IMPLEMENTATION.
(a) Covered Platform Designation.--The Federal Trade Commission or
Department of Justice may designate a covered platform for the purpose
of implementing and enforcing this Act. Such designation shall--
(1) be based on a finding that the criteria set forth in
paragraph (6) of section 5 are met;
(2) be issued in writing and published in the Federal
Register; and
(3) will apply for 10 years from its issuance regardless of
whether there is a change in control or ownership over the
covered platform unless the Federal Trade Commission or the
Department of Justice removes the designation pursuant to
subsection (b).
(b) Removal of Covered Platform Designation.--The Commission or the
Department of Justice shall--
(1) consider whether its designation of a covered platform
pursuant to subsection (a) should be removed prior to the
expiration of the 10-year period if the covered platform
operator files a request with the Commission or the Department
of Justice, which shows that the online platform is no longer a
critical trading partner; and
(2) determine whether to grant a request submitted under
paragraph (1) not later than 120 days after the date of the
filing of such request.
(c) Rulemaking and Technical Standards.--
(1) After designating an online platform as a covered
platform, the Commission shall issue standards of
interoperability specific to the covered platform. These
standards shall implement the requirements of sections 3 and 4
of this Act. In adopting the standards implementing the
requirements of sections 3 and 4, the Commission shall seek to
encourage entry by reducing or eliminating the network effects
that limit competition with the covered platform, ensure that
competing businesses or a potential competing business
interconnects with the covered platform on fair and
nondiscriminatory terms, and protect data security and privacy.
(2) The Commission shall--
(A) establish a technical committee, as described
in section 7 of this Act, to develop proposed standards
implementing the requirements of section 3 as they
apply to a specific covered platform;
(B) issue such standards in accordance with section
553 of title 5, United States Code; and
(C) reject standards that have the purpose or
effect of unreasonably denying access, undermine
interoperability, or are unduly disruptive to
interoperability.
(d) Compliance Assessment.--The Commission shall regularly assess
compliance by covered platforms with the provisions of this Act and
may--
(1) undertake such investigation as appropriate to render
this assessment;
(2) issue subpoenas and civil investigative demands for
relevant information, including any information that is
necessary to effectuate the goals of sections 3 and 4 this Act,
and consult with other agencies as appropriate; and
(3) prescribe such other rules in accordance with section
553 of title 5, United States Code as may be necessary and
appropriate to carry out sections 3 and 4 of this Act.
(e) Agency Complaints.--The Commission shall establish procedures
under which a user, covered platform, or a business user may file a
complaint alleging a violation of this Act.
(f) Reciprocity.--A business user shall not be under any obligation
to adopt or comply with the requirements of this Act or the rules
adopted by the Commission under this Act unless it chooses to--
(1) initiate the secure transfer of data from a covered
platform under section 3 of this Act; or
(2) access an interoperability interface of a covered
platform under section 4 of this Act.
SEC. 7. TECHNICAL COMMITTEE.
(a) Establishment.--
(1) Not later than 180 days following the enactment of this
Act, the Commission shall establish a technical committee to
assist the Commission with considerations relating to
implementation and technical aspects of the requirements under
sections 3 and 4 of this Act.
(2) The size of the committee and its membership is within
the sole discretion of the Commission except as specified in
subsection 7(b).
(b) Composition.--Each technical committee shall include--
(1) representatives of businesses that, in the judgement of
the Commission, utilize or compete with the platform;
(2) representatives of competition or privacy advocacy
organizations, and independent academics that possess
technical, legal, economic, financial, or other knowledge that
the Commission may deem useful;
(3) a representative from the National Institute of
Standards and Technology; and
(4) representatives of a covered platform, which, if
required by Commission, shall provide a nonvoting advisory
member to provide consultation and other aid to the technical
committee. A failure by the covered platform to participate in
good faith in the development of standards by the Technical
Committee shall be a violation of this statute.
(c) General Responsibilities.--Each technical committee established
under this section shall meet regularly to provide information,
analysis, and recommendations to the Commission on the standards of
portability and interoperability and any changes to those standards.
These standards should--
(1) seek to reduce or eliminate network effects that limit
competition with the covered platform;
(2) establish data security and privacy protections for
data portability and interoperability;
(3) prevent fraudulent, malicious, or abusive activity by a
competing business or a potential competing business; and
(4) establish reasonable thresholds related to the
frequency, nature, and volume of requests by a competing
business or a potential competing business to access resources
maintained by the covered platform, beyond which the covered
platform may assess a reasonable fee for such access that shall
be reasonably proportional to the cost, complexity, and risk to
the covered platform of providing such access, and do not limit
the ability or deter the incentive of a competing business or a
potentially competing business to interoperate with the covered
platform.
(d) Role.--The role of technical committees is advisory in nature,
and such committees shall have no implementation or enforcement
authority. However, the Commission shall give strong consideration to
the recommendations of such committees in implementing this Act.
(e) Nonapplicability of the Federal Advisory Committee Act.--The
Federal Advisory Committee Act (5 U.S.C. App.) shall not apply with
respect to the technical committees.
SEC. 8. JUDICIAL REVIEW.
(a) In General.--Any party that is subject to a covered platform
designation pursuant to section 6(a) of this Act, a final order issued
in any district court, or a final order of the Commission issued in an
administrative adjudicative proceeding may within 30 days of the
issuance of such order, petition for review of such order in the United
States Court of Appeals for the District of Columbia Circuit.
(b) Treatment of Findings.--In a proceeding for judicial review of
a covered platform designation pursuant to section 6(a) of this Act or
a final order of the Commission, the findings of the Commission as to
the facts, if supported by evidence, shall be conclusive.
SEC. 9. ENFORCEMENT.
(a) Commission Litigation Authority.--If the Commission has reason
to believe that a covered platform violated this Act, the Commission
may commence a civil action, in its own name by any of its attorneys
designated by it for such purpose, to recover a civil penalty under
this Act and seek other appropriate relief in a district court of the
United States against the covered platform operator.
(b) Emergency Relief.--
(1) The Commission may seek a temporary injunction
requiring the covered platform operator to take or stop taking
any action for not more than 120 days and the court shall grant
such relief if the Commission proves--
(A) there is a plausible claim that a covered
platform operator took an action that could violate
this Act; and
(B) that action impairs the ability of at least one
company to compete with the covered platform.
(2) The emergency relief shall not last more than 120 days
from the filing of the complaint.
(3) The court shall terminate the emergency relief at any
time that the covered platform operator proves that the
Commission has not taken reasonable steps to investigate
whether a violation has occurred.
(4) Nothing in this subsection prevents or limits the
Commission from seeking other equitable relief as provided in
section 10 of this Act.
(c) Statute of Limitations.--A proceeding for a violation of this
Act may be commenced not later than 6 years after such violation
occurs.
SEC. 10. REMEDIES.
(a) Civil Penalty.--The Commission may recover a civil penalty for
a violation of this Act, which shall accrue to the United States, in an
amount not more than the greater of--
(1) 15 percent of the total United States revenue of the
person, partnership, or corporation for the previous calendar
year; or
(2) 30 percent of the United States revenue of the person,
partnership, or corporation in any line of business affected or
targeted by the unlawful conduct during the period of the
unlawful conduct.
(b) Remedies in Addition.--Remedies provided in this subsection are
in addition to, and not in lieu of, any other remedy available to the
Commission under Federal law.
(1) Restitution; contract rescission and reformation;
refunds; return of property.--The Commission may seek, and a
court may order, with respect to the violation that gives rise
to the suit, restitution for losses, rescission or reformation
of contracts, refund of money, or return of property.
(2) Disgorgement.--The Commission may seek, and a court may
order, disgorgement of any unjust enrichment that a covered
platform obtained as a result of the violation that gives rise
to the suit.
(3) Injunction.--The Commission may seek, and the court may
order, relief in equity as necessary to prevent, restrain, or
prohibit violations of this Act.
(c) Repeat Offenders.--If the fact finder determines that a covered
platform has shown a pattern or practice of violating this Act, the
court shall consider requiring that the Chief Executive Officer forfeit
to the United States Treasury any compensation received by that person
during the 12 months preceding or following the filing of a complaint
alleging a violation of this Act.
SEC. 11. RULE OF CONSTRUCTION.
Nothing in this Act shall be construed to limit any authority of
the Attorney General or the Federal Trade Commission under the
antitrust laws, section 5 of the Federal Trade Commission Act (15
U.S.C. 45), or any other provision of law or to limit the application
of any law.
SEC. 12. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this Act
and of the amendments made by this Act, and the application of the
remaining provisions of this Act and amendments to any person or
circumstance shall not be affected.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Committee Consideration and Mark-up Session Held.
Committee Consideration and Mark-up Session Held.
Ordered to be Reported (Amended).
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