II 115th CONGRESS 2d Session S. 3639 IN THE SENATE OF THE UNITED STATES November 15, 2018 Mr. Blumenthal (for himself, Mr. Schumer , and Mr. Udall ) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To prohibit the circumvention of control measures used by Internet retailers to ensure equitable consumer access to products, and for other purposes.

1. Unfair and deceptive acts and practices relating to circumvention of online access control measures (a) Conduct prohibited (1) In general Except as provided in paragraph (2), it shall be unlawful for any person— (A) to circumvent a security measure, access control system, or other technological control or measure on an Internet website or online service to enforce posted purchasing limits or to manage inventory; or (B) to sell or offer to sell any product or service in interstate commerce obtained in violation of subparagraph (A) if the person selling or offering to sell the product or service— (i) participated directly in or had the ability to control the conduct in violation of subparagraph (A); or (ii) knew or should have known that the product or service was acquired in violation of subparagraph (A). (2) Exception It shall not be unlawful under this section for a person to create or use any computer software or system— (A) to investigate, or further the enforcement or defense, of any alleged violation of this section or other statute or regulation; or (B) to engage in research necessary to identify and analyze flaws and vulnerabilities of measures, systems, or controls described in paragraph (1)(A), if these research activities are conducted— (i) to advance the state of knowledge in the field of computer system security; or (ii) to assist in the development of computer security product. (b) Enforcement by the Federal Trade Commission (1) Unfair or deceptive acts or practices A violation of subsection (a) shall be treated as a violation of a rule defining an unfair or a deceptive act or practice under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ). (2) Powers of Commission (A) In general The Commission shall enforce this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act ( 15 U.S.C. 41 et seq.) were incorporated into and made a part of this section. (B) Privileges and immunities Any person who violates subsection (a) shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act ( 15 U.S.C. 41 et seq.). (C) Authority preserved Nothing in this Act shall be construed to limit the authority of the Commission under any other provision of law. (c) Enforcement by States (1) In general In any case in which the attorney general of a State has reason to believe that an interest of the residents of the State has been or is threatened or adversely affected by the engagement of any person subject to subsection (a) in a practice that violates such subsection, the attorney general of the State may, as parens patriae, bring a civil action on behalf of the residents of the State in an appropriate district court of the United States— (A) to enjoin further violation of such subsection by such person; (B) to compel compliance with such subsection; and (C) to obtain damages, restitution, or other compensation on behalf of such residents. (2) Rights of Federal Trade Commission (A) Notice to Federal Trade Commission (i) In general Except as provided in clause (iii), the attorney general of a State shall notify the Commission in writing that the attorney general intends to bring a civil action under paragraph (1) not later than 10 days before initiating the civil action. (ii) Contents The notification required by clause (i) with respect to a civil action shall include a copy of the complaint to be filed to initiate the civil action. (iii) Exception If it is not feasible for the attorney general of a State to provide the notification required by clause (i) before initiating a civil action under paragraph (1), the attorney general shall notify the Commission immediately upon instituting the civil action. (B) Intervention by Federal Trade Commission The Commission may— (i) intervene in any civil action brought by the attorney general of a State under paragraph (1); and (ii) upon intervening— (I) be heard on all matters arising in the civil action; and (II) file petitions for appeal of a decision in the civil action. (3) Investigatory powers Nothing in this subsection may be construed to prevent the attorney general of a State from exercising the powers conferred on the attorney general by the laws of the State to conduct investigations, to administer oaths or affirmations, or to compel the attendance of witnesses or the production of documentary or other evidence. (4) Action by Federal Trade Commission If the Commission institutes a civil action or an administrative action with respect to a violation of subsection (a), the attorney general of a State may not, during the pendency of such action, bring a civil action under paragraph (1) against any defendant named in the complaint of the Commission for the violation with respect to which the Commission instituted such action. (5) Venue; service of process (A) Venue Any action brought under paragraph (1) may be brought in— (i) the district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28, United States Code; or (ii) another court of competent jurisdiction. (B) Service of process In an action brought under paragraph (1), process may be served in any district in which the defendant— (i) is an inhabitant; or (ii) may be found. (6) Actions by other State officials (A) In general In addition to civil actions brought by attorneys general under paragraph (1), any other consumer protection officer of a State who is authorized by the State to do so may bring a civil action under paragraph (1), subject to the same requirements and limitations that apply under this subsection to civil actions brought by attorneys general. (B) Savings provision Nothing in this subsection may be construed to prohibit an authorized official of a State from initiating or continuing any proceeding in a court of the State for a violation of any civil or criminal law of the State. 2. Definitions In this Act: (1) Commission The term Commission means the Federal Trade Commission. (2) Posted The term posted means clearly and conspicuously published on an Internet website.