II 

116TH CONGRESS 

1ST SESSION S. 1084 

To prohibit the usage 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 

APRIL 9, 2019 

Mr. WARNER (for himself and Mrs. FISCHER) introduced the following bill; 

which was read twice and referred to the Committee on Commerce, 

Science, and Transportation 

A BILL 

To prohibit the usage 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 MENTS OR RESEARCH.—The term ‘‘behavioral or 


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1 psychological experiments or research’’ means the 

2 study, including through human experimentation, of 

3 overt or observable actions and mental phenomena 

4 inferred from behavior, including interactions be5 tween and among individuals and the activities of so6 cial groups. 

7 (2) COMMISSION.—The term ‘‘Commission’’ 

8 means the Federal Trade Commission. 

9 (3) COMPULSIVE USAGE.—The term ‘‘compul10 sive usage’’ means any response stimulated by exter11 nal factors that causes an individual to engage in re12 petitive, purposeful, and intentional behavior causing 

13 psychological distress, loss of control, anxiety, de14 pression, or harmful stress responses. 

15 (4) INDEPENDENT REVIEW BOARD.—The term 

16 ‘‘independent review board’’ means a board, com17 mittee, or other group formally designated by a large 

18 online operator to review, to approve the initiation 

19 of, and to conduct periodic review of, any research 

20 by, or at the direction or discretion of a large online 

21 operator, involving human subjects. 

22 (5) INFORMED CONSENT.—The term ‘‘informed 

23 consent’’— 

24 (A) means a process by which a research 

25 subject is provided adequate information prior 


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1 to being included in any experiment or study to 

2 allow for an informed decision about voluntary 

3 participation in a behavioral or psychological re4 search experiment or study, while ensuring the 

5 understanding of the potential participant of 

6 the furnished information and any associated 

7 benefits, risks, or consequences of participation 

8 prior to obtaining the voluntary agreement to 

9 participate by the participant; and 

10 (B) does not include— 

11 (i) the consent of an individual under 

12 the age of 13; or 

13 (ii) the consent to a provision con14 tained in a general contract or service 

15 agreement. 

16 (6) LARGE ONLINE OPERATOR.—The term 

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

18 (A) provides an online service; 

19 (B) has more than 100,000,000 authenti20 cated users of an online service in any 30-day 

21 period; and 

22 (C) is subject to the jurisdiction of the 

23 Commission under the Federal Trade Commis24 sion Act (15 U.S.C. 41 et seq.). 


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1 (7) ONLINE SERVICE.—The term ‘‘online serv2 ice’’ means a website or a service, other than an 

3 internet access service, that is made available to the 

4 public over the internet, including a social network, 

5 a search engine, or email service. 

6 (8) USER DATA.—The term ‘‘user data’’ means 

7 any information relating to an identified or identifi8 able individual user, whether directly submitted to 

9 the large online operator by the user, or derived 

10 from the observed activity of the user by the large 

11 online operator. 

12 SEC. 3. UNFAIR AND DECEPTIVE ACTS AND PRACTICES RE13 LATING TO THE MANIPULATION OF USER 

14 INTERFACES. 

15 (a) CONDUCT PROHIBITED.— 

16 (1) IN GENERAL.—It shall be unlawful for any 

17 large online operator— 

18 (A) to design, modify, or manipulate a user 

19 interface with the purpose or substantial effect 

20 of obscuring, subverting, or impairing user au21 tonomy, decision-making, or choice to obtain 

22 consent or user data; 

23 (B) to subdivide or segment consumers of 

24 online services into groups for the purposes of 

25 behavioral or psychological experiments or studVerDate Sep 11 2014 01:36 Apr 12, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1084.IS S1084

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1 ies, except with the informed consent of each 

2 user involved; or 

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

4 interface on a website or online service, or por5 tion thereof, that is directed to an individual 

6 under the age of 13, with the purpose or sub7 stantial effect of cultivating compulsive usage, 

8 including video auto-play functions initiated 

9 without the consent of a user. 

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

11 large online operator that engages in any form of behav12 ioral or psychological research based on the activity or 

13 data of its users shall— 

14 (1) disclose to its users on a routine basis, but 

15 not less than once each 90 days, any experiments or 

16 studies that user was subjected to or enrolled in with 

17 the purpose of promoting engagement or product 

18 conversion; 

19 (2) disclose to the public on a routine basis, but 

20 not less than once each 90 days, any experiments or 

21 studies with the purposes of promoting engagement 

22 or product conversion being currently undertaken, or 

23 concluded since the prior disclosure; 

24 (3) shall present the disclosures in paragraphs 

25 (1) and (2) in a manner that— 


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1 (A) is clear, conspicuous, context-appro2 priate, and easily accessible; and 

3 (B) is not deceptively obscured; 

4 (4) establish an Independent Review Board for 

5 any behavioral or psychological research, of any pur6 pose, conducted on users or on the basis of user ac7 tivity or data, which shall review and have authority 

8 to approve, require modification in, or disapprove all 

9 behavioral or psychological experiments or research; 

10 and 

11 (5) ensure that any Independent Review Board 

12 established under paragraph (4) shall register with 

13 the Commission, including providing to the Commis14 sion— 

15 (A) the names and resumes of every board 

16 member; 

17 (B) the composition and reporting struc18 ture of the Board to the management of the op19 erator; 

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

21 be notified of proposed studies or modifications 

22 along with the processes by which the board is 

23 capable of vetoing or amending such proposals; 

24 (D) any compensation provided to board 

25 members; and 


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1 (E) any conflict of interest that might 

2 exist concerning a board member’s participation 

3 in the Board. 

4 (c) REGISTERED PROFESSIONAL STANDARDS

5 BODY.— 

6 (1) IN GENERAL.—An association of large on7 line operators may register as a professional stand8 ards body by filing with the Commission an applica9 tion for registration in such form as the Commis10 sion, by rule, may prescribe containing the rules of 

11 the association and such other information and doc12 uments as the Commission, by rule, may prescribe 

13 as necessary or appropriate in the public interest or 

14 for protecting the welfare of users of large online op15 erators. 

16 (2) PROFESSIONAL STANDARDS BODY.—An as17 sociation of large online operators may not register 

18 as a professional standards body unless the Commis19 sion determines that— 

20 (A) the association is so organized and has 

21 the capacity to enforce compliance by its mem22 bers and persons associated with its members, 

23 with the provisions of this Act; 


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1 (B) the rules of the association provide 

2 that any large online operator may become a 

3 member of such association; 

4 (C) the rules of the association assure a 

5 fair representation of its members in the selec6 tion of its directors and administration of its 

7 affairs and provide that one or more directors 

8 shall be representative of users and not be asso9 ciated with, or receive any direct or indirect 

10 funding from, a member of the association or 

11 any large online operator; 

12 (D) the rules of the association are de13 signed to prevent exploitative and manipulative 

14 acts or practices, to promote transparent and 

15 fair principles of technology development and 

16 design, to promote research in keeping with 

17 best practices of study design and informed 

18 consent, and to continually evaluate industry 

19 practices and issue binding guidance consistent 

20 with the objectives of this Act; 

21 (E) the rules of the association provide 

22 that its members and persons associated with 

23 its members shall be appropriately disciplined 

24 for violation of any provision of this Act, the 

25 rules or regulations thereunder, or the rules of 


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1 the association, by expulsion, suspension, limi2 tation of activities, functions, fine, censure, 

3 being suspended or barred from being associ4 ated with a member, or any other appropriate 

5 sanction; and 

6 (F) the rules of the association are in ac7 cordance with the provisions of this Act, and, in 

8 general, provide a fair procedure for the dis9 ciplining of members and persons associated 

10 with members, the denial of membership to any 

11 person seeking membership therein, the barring 

12 of any person from becoming associated with a 

13 member thereof, and the prohibition or limita14 tion by the association of any person with re15 spect to access to services offered by the asso16 ciation or a member thereof. 

17 (3) RESPONSIBILITIES AND ACTIVITIES.— 

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

19 shall develop, on a continuing basis, guidance 

20 and bright-line rules for the development and 

21 design of technology products of large online 

22 operators consistent with subparagraph (B). 

23 (B) SAFE HARBORS.—In formulating guid24 ance under subparagraph (A), the association 

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1 pose or substantial effect of subverting or im2 pairing user autonomy, decision-making, or 

3 choice, or of cultivating compulsive usage for 

4 children such as— 

5 (i) de minimis user interface changes 

6 derived from testing consumer preferences, 

7 including different styles, layouts, or text, 

8 where such changes are not done with the 

9 purpose of obtaining user consent or user 

10 data; 

11 (ii) algorithms or data outputs outside 

12 the control of a large online operator or its 

13 affiliates; and 

14 (iii) establishing default settings that 

15 provide enhanced privacy protection to 

16 users or otherwise enhance their autonomy 

17 and decision-making ability. 

18 (d) ENFORCEMENT BY THE COMMISSION.— 

19 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC20 TICE.—A violation of subsection (a) or (b) shall be 

21 treated as a violation of a rule defining an unfair or 

22 deceptive act or practice under section 18(a)(1)(B) 

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

24 57a(a)(1)(B)). 


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1 (2) DETERMINATION.—For purposes of en2 forcement of this Act, the Commission shall deter3 mine an act or practice is unfair or deceptive if the 

4 act or practice— 

5 (A) has the purpose, or substantial effect, 

6 of subverting or impairing user autonomy, deci7 sion-making, or choice to obtain consent or user 

8 data; or 

9 (B) has the purpose, or substantial effect, 

10 of cultivating compulsive usage by a child under 

11 13. 

12 (3) REGULATIONS.—Not later than 1 year after 

13 the date of enactment of this Act, the Commission 

14 shall promulgate regulations under section 553 of 

15 title 5, United States Code, that— 

16 (A) establish rules and procedures for ob17 taining the informed consent of users; 

18 (B) establish rules for the registration, for19 mation, oversight, and management of the inde20 pendent review boards, including standards that 

21 ensure effective independence of such entities 

22 from improper or undue influence by a large 

23 online operator; 

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1 sional standards bodies, including procedures 

2 for the regular oversight of such bodies and rev3 ocation of their designation; and 

4 (D) in consultation with a professional 

5 standards body established under subsection 

6 (c), define conduct that does not have the pur7 pose or substantial effect of subverting or im8 pairing user autonomy, decision-making, or 

9 choice, or of cultivating compulsive usage for 

10 children such as— 

11 (i) de minimis user interface changes 

12 derived from testing consumer preferences, 

13 including different styles, layouts, or text, 

14 where such changes are not done with the 

15 purpose of obtaining user consent or user 

16 data; 

17 (ii) algorithms or data outputs outside 

18 the control of a large online operator or its 

19 affiliates; and 

20 (iii) establishing default settings that 

21 provide enhanced privacy protection to 

22 users or otherwise enhance their autonomy 

23 and decision-making ability. 

24 (4) SAFE HARBOR.—The Commission may not 

25 bring an enforcement action under this Act against 


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1 any large online operator that relied in good faith on 

2 the guidance of a professional standards body. 

Æ 


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