I 

117TH CONGRESS 

1ST SESSION H. R. 1090 

To require software marketplace operators and developers of covered foreign 

software to provide to consumers a warning prior to the download of 

such software, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 18, 2021 

Mr. BANKS introduced the following bill; which was referred to the Committee 

on Energy and Commerce 

A BILL 

To require software marketplace operators and developers 

of covered foreign software to provide to consumers a 

warning prior to the download of such software, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Online Consumer Pro5 tection Act of 2021’’. 


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1 SEC. 2. CONSUMER WARNING AND ACKNOWLEDGMENT FOR 

2 DOWNLOAD OF COVERED FOREIGN SOFT3 WARE. 

4 (a) IN GENERAL.—A software marketplace operator 

5 or developer of covered foreign software may not— 

6 (1) permit a consumer to download covered for7 eign software unless, before the download begins— 

8 (A) a warning that meets the requirements 

9 of subsection (b) is displayed to the consumer, 

10 separately from any privacy policy, terms of 

11 service, or other notice; and 

12 (B) the consumer is required to choose (by 

13 taking an affirmative step such as clicking on 

14 a button) between the options of— 

15 (i) acknowledging such warning and 

16 proceeding with the download; or 

17 (ii) cancelling the download; or 

18 (2) make available covered foreign software for 

19 download by consumers unless the operator or devel20 oper has in place procedures to ensure compliance 

21 with paragraph (1). 

22 (b) REQUIREMENTS FOR WARNING.— 

23 (1) IN GENERAL.—A warning meets the re24 quirements of this subsection if such warning reads 

25 as follows (with the italicized language being re26 placed and the other bracketed language being inVerDate Sep 11 2014 15:51 Mar 13, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1090.IH H1090

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1 cluded or deleted, as appropriate for the covered for2 eign software regarding which the warning is being 

3 given, and the brackets removed): ‘‘Warning: [Name 

4 of Covered Foreign Software] is developed by [Name 

5 of Developer of Covered Foreign Software], which [is 

6 controlled by a company that] [is organized under 

7 the laws of]/[conducts its principal operations in]/[is 

8 organized under the laws of and conducts its prin9 cipal operations in] [Name of Covered Country]. 

10 Please either [insert description of how to acknowl11 edge the warning and proceed with the download] if 

12 you wish to proceed with the download or [insert de13 scription of how to cancel the download] if you wish 

14 to cancel the download.’’. 

15 (2) ALTERNATIVE WARNINGS.—The Commis16 sion may by regulation specify that a warning other 

17 than the warning provided in paragraph (1) meets 

18 the requirements of this subsection, as the Commis19 sion considers appropriate. 

20 (c) LIABILITY OF SOFTWARE DEVELOPER.—In the 

21 case of a violation of subsection (a) by a software market22 place operator, if the developer of the covered foreign soft23 ware with respect to which the violation was committed 

24 did not inform the software marketplace operator that the 

25 software is covered foreign software, the developer (as well 


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1 as the software marketplace operator) shall be considered 

2 to have committed the violation. 

3 (d) ENFORCEMENT BY FEDERAL TRADE COMMIS4 SION.— 

5 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC6 TICES.—A violation of this section or a regulation 

7 promulgated under this section shall be treated as a 

8 violation of a regulation under section 18(a)(1)(B) 

9 of the Federal Trade Commission Act (15 U.S.C. 

10 57a(a)(1)(B)) regarding unfair or deceptive acts or 

11 practices. 

12 (2) POWERS OF COMMISSION.—The Commis13 sion shall enforce this section and the regulations 

14 promulgated under the section in the same manner, 

15 by the same means, and with the same jurisdiction, 

16 powers, and duties as though all applicable terms 

17 and provisions of the Federal Trade Commission Act 

18 (15 U.S.C. 41 et seq.) were incorporated into and 

19 made a part of this Act. Any person who violates 

20 this section or a regulation promulgated under this 

21 section shall be subject to the penalties and entitled 

22 to the privileges and immunities provided in the 

23 Federal Trade Commission Act. 


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1 (3) REGULATIONS.—The Commission may pro2 mulgate regulations under section 553 of title 5, 

3 United States Code, to carry out this section. 

4 (e) CRIMINAL OFFENSE.— 

5 (1) CORPORATE OFFENSE.—Whoever, being a 

6 software marketplace operator or developer of cov7 ered foreign software, knowingly violates subsection 

8 (a) shall be fined $50,000 for each violation. 

9 (2) INDIVIDUAL OFFENSE.—Whoever, being an 

10 officer of a software marketplace operator or devel11 oper of covered foreign software, causes a violation 

12 of subsection (a) with the intent to conceal the coun13 try in which software is developed, shall be fined 

14 under title 18, United States Code, imprisoned not 

15 more than 2 years, or both. 

16 (3) APPLICATION.—This subsection shall apply 

17 with respect to conduct occurring during the period 

18 beginning on the date of enactment of this Act and 

19 ending on the date on which this section ceases to 

20 have any force or effect under subsection (g). 

21 (f) REPORT TO CONGRESS.—Not later than 8 years 

22 after the date of the enactment of this Act, the Commis23 sion, in consultation with the Attorney General, shall sub24 mit to Congress a report on the implementation and en25 forcement of this section. 


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1 (g) SUNSET.—This section shall cease to have any 

2 force or effect on the date that is 10 years after the date 

3 of the enactment of this Act. 

4 (h) DEFINITIONS.—In this section: 

5 (1) COMMISSION.—The term ‘‘Commission’’ 

6 means the Federal Trade Commission. 

7 (2) COVERED COUNTRY.— 

8 (A) IN GENERAL.—The term ‘‘covered 

9 country’’ means— 

10 (i) China, Russia, North Korea, Iran, 

11 Syria, and Cuba; 

12 (ii) any other country the government 

13 of which the Secretary of State determines 

14 has repeatedly provided support for inter15 national terrorism pursuant to— 

16 (I) section 1754(c)(1)(A) of the 

17 Export Control Reform Act of 2018 

18 (50 U.S.C. 4318(c)(1)(A)); 

19 (II) section 620A of the Foreign 

20 Assistance Act of 1961 (22 U.S.C. 

21 2371); 

22 (III) section 40 of the Arms Ex23 port Control Act (22 U.S.C. 2780); or 

24 (IV) any other provision of law; 

25 and 


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1 (iii) subject to subparagraph (B), any 

2 other country designated by the Attorney 

3 General or the Commission based on ex4 pert knowledge of the sources of dangerous 

5 software. 

6 (B) PROCESS.— 

7 (i) DESIGNATION.—Upon designating 

8 a country under subparagraph (A)(iii), the 

9 Attorney General or the Commission (in 

10 this clause referred to as the ‘‘notifying 

11 party’’) shall transmit a notification of the 

12 designation to the Commission or the At13 torney General, as the case may be (in this 

14 clause referred to as the ‘‘notified party’’). 

15 Such designation shall become effective on 

16 the day that is 30 days after the date on 

17 which such notification is transmitted, un18 less, before such day, the notified party 

19 transmits to the notifying party and the 

20 Secretary of State an objection. The Sec21 retary shall, not later than 30 days after 

22 the date on which the Secretary receives 

23 such objection, determine whether to des24 ignate such country under such subpara25 graph. 


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1 (ii) REVOCATION OF DESIGNATION.— 

2 (I) JOINT ACTION REQUIRED.— 

3 Except as provided in subclause (II), 

4 the designation of a country under 

5 subparagraph (A)(iii) may only be re6 voked by the Attorney General and 

7 the Commission, acting jointly. 

8 (II) DISPUTE RESOLUTION.—In 

9 the case of a dispute between the At10 torney General and the Commission 

11 regarding whether to revoke the des12 ignation of a country under subpara13 graph (A)(iii), the Attorney General 

14 or the Commission may transmit to 

15 the Secretary of State a notification 

16 of such dispute. The Secretary shall, 

17 not later than 30 days after the date 

18 on which the Secretary receives such 

19 notification, determine whether to re20 voke such designation. 

21 (3) COVERED FOREIGN SOFTWARE.—The term 

22 ‘‘covered foreign software’’ means software that is 

23 developed by— 

24 (A) a person (other than an individual)— 


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1 (i) who is organized under the laws of 

2 a covered country; or 

3 (ii) whose principal operations are 

4 conducted in a covered country; or 

5 (B) a person (other than an individual) 

6 that is, directly or indirectly, controlled by a 

7 person described in subparagraph (A). 

8 (4) MOBILE APPLICATION.—The term ‘‘mobile 

9 application’’ means a software program that runs on 

10 the operating system of a smartphone, tablet com11 puter, or similar mobile electronic device. 

12 (5) SOFTWARE.—The term ‘‘software’’ means 

13 any computer software program, including a mobile 

14 application. 

15 (6) SOFTWARE MARKETPLACE OPERATOR.— 

16 The term ‘‘software marketplace operator’’ means a 

17 person who, for a commercial purpose, operates an 

18 online store or marketplace through which software 

19 is made available for download by consumers. 

Æ 


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