II 

117TH CONGRESS 

1ST SESSION S. 3330 

To prohibit the use of exploitative and deceptive practices by large online 

operators and to promote consumer welfare in the use of behavioral 

research by such providers. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 7, 2021 

Mr. WARNER (for himself, Mrs. FISCHER, Ms. KLOBUCHAR, and Mr. THUNE) 

introduced the following bill; which was read twice and referred to the 

Committee on Commerce, Science, and Transportation 

A BILL 

To prohibit the use of exploitative and deceptive practices 

by large online operators and to promote consumer welfare in the use of behavioral research by such providers. 

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 ‘‘Deceptive Experiences 

5 To Online Users Reduction Act’’ or the ‘‘DETOUR Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) BEHAVIORAL OR PSYCHOLOGICAL EXPERI9 MENT OR RESEARCH.—The term ‘‘behavioral or psyVerDate Sep 11 2014 00:57 Dec 14, 2021 Jkt 029200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3330.IS S3330

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1 chological experiment or research’’ means the study, 

2 including through human experimentation, of overt 

3 or observable actions or mental phenomena inferred 

4 from behavior, including interactions between and 

5 among individuals and the activities of social groups. 

6 (2) CHILD.—The term ‘‘child’’ has the meaning 

7 given such term in section 1302 of the Children’s 

8 Online Privacy Protection Act of 1998 (15 U.S.C. 

9 6501). 

10 (3) COMMISSION.—The term ‘‘Commission’’ 

11 means the Federal Trade Commission. 

12 (4) COMPULSIVE USAGE.—The term ‘‘compul13 sive usage’’ means any response stimulated by exter14 nal factors that causes an individual to engage in re15 petitive behavior causing psychological distress, loss 

16 of control, anxiety, depression, or harmful stress re17 sponses. 

18 (5) INDEPENDENT REVIEW BOARD.—The term 

19 ‘‘independent review board’’ means a board, com20 mittee, or other group that serves to protect the wel21 fare and privacy of users and is formally designated 

22 by a large online operator to review, to approve the 

23 initiation of, and to conduct periodic review of, any 

24 research by, or at the direction or discretion of, a 

25 large online operator, involving human subjects. 


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1 (6) INFORMED CONSENT.—The term ‘‘informed 

2 consent’’— 

3 (A) means the express, affirmative consent 

4 freely given by a user, in which such user is 

5 provided a clear and conspicuous description— 

6 (i) of a process by which a user is 

7 provided adequate information prior to 

8 being included in any behavioral or psycho9 logical experiment or research in order to 

10 allow for an informed decision about vol11 untary participation in such behavioral or 

12 psychological research experiment or re13 search; and 

14 (ii) ensuring the understanding by 

15 such user of the furnished information and 

16 any associated benefits, risks, or con17 sequences of participation prior to obtain18 ing the voluntary agreement to participate 

19 by the user; and 

20 (B) does not include— 

21 (i) the consent of a child; or 

22 (ii) the consent to a provision con23 tained in a general contract or service 

24 agreement. 


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1 (7) LARGE ONLINE OPERATOR.—The term 

2 ‘‘large online operator’’ means any person that— 

3 (A) provides an online service; 

4 (B) has more than 100,000,000 authenti5 cated users of an online service in any 30-day 

6 period; and 

7 (C) is subject to the jurisdiction of the 

8 Commission under the Federal Trade Commis9 sion Act (15 U.S.C. 41 et seq.). 

10 (8) ONLINE SERVICE.—The term ‘‘online serv11 ice’’ means a website or a service, other than an 

12 internet access service, that is made available to the 

13 public over the internet, including a social network, 

14 a search engine, or an email service. 

15 (9) USER.—The term ‘‘user’’ means any indi16 vidual who engages with an online service. 

17 (10) USER DATA.—The term ‘‘user data’’ 

18 means any information relating to an identified or 

19 identifiable individual user, whether directly sub20 mitted to the large online operator by the user or de21 rived from the observed activity of the user by the 

22 large online operator. 


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1 SEC. 3. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RE2 LATING TO THE MANIPULATION OF USER 

3 INTERFACES. 

4 (a) CONDUCT PROHIBITED.—It shall be unlawful for 

5 any large online operator— 

6 (1) to design, modify, or manipulate a user 

7 interface with the purpose or substantial effect of 

8 obscuring, subverting, or impairing user autonomy, 

9 decision-making, or choice to obtain consent or user 

10 data; 

11 (2) to subdivide or segment consumers of online 

12 services into groups for the purposes of behavioral or 

13 psychological experiment or research of users of an 

14 online service, except with the informed consent of 

15 each user involved; or 

16 (3) to design, modify, or manipulate a user 

17 interface on a website or online service, or portion 

18 thereof, that is directed to a child, with the purpose 

19 or substantial effect of causing, increasing, or en20 couraging compulsive usage, inclusive of video auto21 play functions initiated without the consent of a 

22 user. 

23 (b) DUTIES OF LARGE ONLINE OPERATORS.—Any 

24 large online operator that engages in any form of behav25 ioral or psychological experiment or research based on the 

26 activity or data of its users shall do each of the following: 


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1 (1) The large online operator shall disclose to 

2 its users on a routine basis, but not less than once 

3 each 90 days, the general purpose of any such be4 havioral or psychological experiment or research, to 

5 each user whose user data is or was during the pre6 vious 90-day period subject to or included in any be7 havioral or psychological experiment or research. 

8 (2) The large online operator shall disclose to 

9 the public on a routine basis, but not less than once 

10 each 90 days, any experiments or studies with the 

11 purposes of promoting engagement or product con12 version being currently undertaken, or concluded 

13 since the prior disclosure. 

14 (3) The large online operator shall present the 

15 disclosures described in paragraphs (1) and (2) in a 

16 manner that— 

17 (A) is clear, conspicuous, context-appro18 priate, and easily accessible; and 

19 (B) is not deceptively obscured. 

20 (4)(A) Subject to subparagraph (B), the large 

21 online operator shall remove and delete all data ob22 tained from affected users in the course of behav23 ioral or psychological experiment or research if the 

24 large online operator— 


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1 (i) determines (or determines that it has 

2 reason to believe) that the informed consent for 

3 the processing of user data for such behavioral 

4 or psychological experiment or research was in5 appropriately acquired from such users; and 

6 (ii) is unable to obtain within 2 business 

7 days of such determination the appropriate in8 formed consent. 

9 (B) If the large online operator is unable to re10 move and delete user data pursuant to subparagraph 

11 (A), the large online operator shall discontinue the 

12 related behavioral or psychological experiment or re13 search. 

14 (5) The large online operator shall establish an 

15 Independent Review Board for any behavioral or 

16 psychological experiment or research, of any pur17 pose, conducted on users or on the basis of user ac18 tivity or data, which shall review and have authority 

19 to approve, require modification in, or disapprove all 

20 behavioral or psychological experiment or research. 

21 (6) The large online operator shall ensure that 

22 any Independent Review Board established under 

23 paragraph (5) shall register with the Commission, 

24 including providing to the Commission— 


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1 (A) the names and resumes of every Board 

2 member; 

3 (B) the composition and reporting struc4 ture of the Board to the management of the op5 erator; 

6 (C) the process by which the Board is to 

7 be notified of proposed studies or modifications 

8 along with the processes by which the board is 

9 capable of vetoing or amending such proposals; 

10 (D) any compensation provided to board 

11 members; and 

12 (E) any conflict of interest that might 

13 exist concerning a board member’s participation 

14 in the Board. 

15 (c) REGISTERED PROFESSIONAL STANDARDS

16 BODY.— 

17 (1) IN GENERAL.—An association of large on18 line operators may register as a professional stand19 ards body by filing with the Commission an applica20 tion for registration in such form as the Commis21 sion, by rule, may prescribe containing the rules of 

22 the association and such other information and doc23 uments as the Commission, by rule, may prescribe 

24 as necessary or appropriate in the public interest or 


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1 for protecting the welfare of users of large online op2 erators. 

3 (2) PROFESSIONAL STANDARDS BODY.—An as4 sociation of large online operators may not register 

5 as a professional standards body unless the Commis6 sion determines that— 

7 (A) the association is so organized and has 

8 the capacity to enforce compliance by its mem9 bers and persons associated with its members, 

10 with the provisions of this Act; 

11 (B) the rules of the association provide 

12 that any large online operator may become a 

13 member of such association; 

14 (C) the rules of the association ensure a 

15 fair representation of its members in the selec16 tion of its directors and administration of its 

17 affairs and provide that one or more directors 

18 shall be representative of users and not be asso19 ciated with, or receive any direct or indirect 

20 funding from, a member of the association or 

21 any large online operator; 

22 (D) the rules of the association are de23 signed to prevent exploitative and manipulative 

24 acts or practices, to promote transparent and 

25 fair principles of technology development and 


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1 design, to promote research in keeping with 

2 best practices of study design and informed 

3 consent, and to continually evaluate industry 

4 practices and issue contractually binding guid5 ance consistent with the objectives of this Act; 

6 (E) the rules of the association provide 

7 that its members and persons associated with 

8 its members shall be appropriately disciplined 

9 for violation of any provision of this Act, the 

10 rules or regulations thereunder, or the rules of 

11 the association, by expulsion, suspension, limi12 tation of activities, functions, fine, censure, 

13 being suspended or barred from being associ14 ated with a member, or any other appropriate 

15 sanction; and 

16 (F) the rules of the association are in ac17 cordance with the provisions of this Act, and, in 

18 general, provide a fair procedure for the dis19 ciplining of members and persons associated 

20 with members, the denial of membership to any 

21 person seeking membership therein, the barring 

22 of any person from becoming associated with a 

23 member thereof, and the prohibition or limita24 tion by the association of any person with reVerDate Sep 11 2014 00:57 Dec 14, 2021 Jkt 029200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3330.IS S3330

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1 spect to access to services offered by the asso2 ciation or a member thereof. 

3 (3) RESPONSIBILITIES AND ACTIVITIES.— 

4 (A) BRIGHT-LINE RULES.—An association 

5 shall— 

6 (i) develop, on a continuing basis, 

7 guidance and bright-line rules for the de8 velopment and design of technology prod9 ucts of large online operators consistent 

10 with subparagraph (B); and 

11 (ii) notify the Commission of such 

12 guidance and bright-line rules. 

13 (B) SAFE HARBORS.—In formulating guid14 ance under subparagraph (A), the association 

15 shall define conduct that does not have the pur16 pose or substantial effect of subverting or im17 pairing user autonomy, decision-making, or 

18 choice, or of cultivating compulsive usage for a 

19 child, such as— 

20 (i) de minimis user interface changes 

21 derived from testing consumer preferences, 

22 including different styles, layouts, or text, 

23 where such changes are not done with the 

24 purpose of obtaining user consent or user 

25 data; 


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1 (ii) algorithms or data outputs outside 

2 the control of a large online operator or its 

3 affiliates; and 

4 (iii) establishing default settings that 

5 provide enhanced privacy protection to 

6 users or otherwise enhance their autonomy 

7 and decision-making ability. 

8 (d) ENFORCEMENT BY THE COMMISSION.— 

9 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC10 TICES.— 

11 (A) IN GENERAL.—A violation of sub12 section (a) or (b) shall be treated as a violation 

13 of a rule defining an unfair or deceptive act or 

14 practice under section 18(a)(1)(B) of the Fed15 eral Trade Commission Act (15 U.S.C. 

16 57a(a)(1)(B)). 

17 (B) DETERMINATION.—For purposes of 

18 enforcement of this Act, the Commission shall 

19 determine an act or practice is unfair or decep20 tive if the act or practice— 

21 (i) has the purpose, or substantial ef22 fect, of subverting or impairing user auton23 omy, decision-making, or choice to obtain 

24 consent or user data; or 


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1 (ii) has the purpose, or substantial ef2 fect, of cultivating compulsive usage by a 

3 child. 

4 (2) POWERS OF THE COMMISSION.— 

5 (A) IN GENERAL.—The Commission shall 

6 enforce this Act and the regulations promul7 gated under this Act in the same manner, by 

8 the same means, and with the same jurisdic9 tion, powers, and duties as though all applicable 

10 terms and provisions of the Federal Trade 

11 Commission Act (15 U.S.C. 41 et seq.) were in12 corporated into and made a part of this Act. 

13 (B) PRIVILEGES AND IMMUNITIES.—Any 

14 person who violates this Act or a regulation 

15 promulgated under this Act shall be subject to 

16 the penalties and entitled to the privileges and 

17 immunities provided in the Federal Trade Com18 mission Act (15 U.S.C. 41 et seq.). 

19 (C) AUTHORITY PRESERVED.—Nothing in 

20 this Act shall be construed to limit the author21 ity of the Commission under any other provi22 sion of law. 

23 (D) REGULATIONS.—Not later than 1 year 

24 after the date of enactment of this Act, the 

25 Commission shall promulgate regulations under 


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1 section 553 of title 5, United States Code, 

2 that— 

3 (i) establish rules and procedures for 

4 obtaining the informed consent of users; 

5 (ii) establish rules for the registration, 

6 formation, oversight, and management of 

7 the independent review boards, including 

8 standards that ensure effective independ9 ence of such entities from improper or 

10 undue influence by a large online operator; 

11 (iii) establish rules for the registra12 tion, formation, oversight, and manage13 ment of professional standards bodies, in14 cluding procedures for the regular over15 sight of such bodies and revocation of their 

16 designation; 

17 (iv) in consultation with a professional 

18 standards body established under sub19 section (c), define conduct that does not 

20 have the purpose or substantial effect of 

21 subverting or impairing user autonomy, de22 cision-making, or choice, or of cultivating 

23 compulsive usage for a child, such as— 

24 (I) de minimis user interface 

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1 sumer preferences, including different 

2 styles, layouts, or text, where such 

3 changes are not done with the purpose 

4 of obtaining user consent or user 

5 data; 

6 (II) algorithms or data outputs 

7 outside the control of a large online 

8 operator or its affiliates; and 

9 (III) establishing default settings 

10 that provide enhanced privacy protec11 tion to users or otherwise enhance 

12 their autonomy and decision-making 

13 ability. 

14 (3) SAFE HARBOR.—The Commission may not 

15 bring an enforcement action under this Act against 

16 any large online operator that relied in good faith on 

17 the guidance of a professional standards body. 

Æ 


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