I 117th CONGRESS 1st Session H. R. 1090 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. Short title This Act may be cited as the Online Consumer Protection Act of 2021 . 2. Consumer warning and acknowledgment for download of covered foreign software (a) In general A software marketplace operator or developer of covered foreign software may not— (1) permit a consumer to download covered foreign software unless, before the download begins— (A) a warning that meets the requirements of subsection (b) is displayed to the consumer, separately from any privacy policy, terms of service, or other notice; and (B) the consumer is required to choose (by taking an affirmative step such as clicking on a button) between the options of— (i) acknowledging such warning and proceeding with the download; or (ii) cancelling the download; or (2) make available covered foreign software for download by consumers unless the operator or developer has in place procedures to ensure compliance with paragraph (1). (b) Requirements for warning (1) In general A warning meets the requirements of this subsection if such warning reads as follows (with the italicized language being replaced and the other bracketed language being included or deleted, as appropriate for the covered foreign software regarding which the warning is being given, and the brackets removed): Warning: [ Name of Covered Foreign Software ] is developed by [ Name of Developer of Covered Foreign Software ], which [is controlled by a company that] [is organized under the laws of]/[conducts its principal operations in]/[is organized under the laws of and conducts its principal operations in] [ Name of Covered Country ]. Please either [ insert description of how to acknowledge the warning and proceed with the download ] if you wish to proceed with the download or [ insert description of how to cancel the download ] if you wish to cancel the download. . (2) Alternative warnings The Commission may by regulation specify that a warning other than the warning provided in paragraph (1) meets the requirements of this subsection, as the Commission considers appropriate. (c) Liability of software developer In the case of a violation of subsection (a) by a software marketplace operator, if the developer of the covered foreign software with respect to which the violation was committed did not inform the software marketplace operator that the software is covered foreign software, the developer (as well as the software marketplace operator) shall be considered to have committed the violation. (d) Enforcement by Federal Trade Commission (1) Unfair or deceptive acts or practices A violation of this section or a regulation promulgated under this section shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ) regarding unfair or deceptive acts or practices. (2) Powers of Commission The Commission shall enforce this section and the regulations promulgated under the 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 Act. Any person who violates this section or a regulation promulgated under this section shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act. (3) Regulations The Commission may promulgate regulations under section 553 of title 5, United States Code, to carry out this section. (e) Criminal offense (1) Corporate offense Whoever, being a software marketplace operator or developer of covered foreign software, knowingly violates subsection (a) shall be fined $50,000 for each violation. (2) Individual offense Whoever, being an officer of a software marketplace operator or developer of covered foreign software, causes a violation of subsection (a) with the intent to conceal the country in which software is developed, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both. (3) Application This subsection shall apply with respect to conduct occurring during the period beginning on the date of enactment of this Act and ending on the date on which this section ceases to have any force or effect under subsection (g). (f) Report to Congress Not later than 8 years after the date of the enactment of this Act, the Commission, in consultation with the Attorney General, shall submit to Congress a report on the implementation and enforcement of this section. (g) Sunset This section shall cease to have any force or effect on the date that is 10 years after the date of the enactment of this Act. (h) Definitions In this section: (1) Commission The term Commission means the Federal Trade Commission. (2) Covered country (A) In general The term covered country means— (i) China, Russia, North Korea, Iran, Syria, and Cuba; (ii) any other country the government of which the Secretary of State determines has repeatedly provided support for international terrorism pursuant to— (I) section 1754(c)(1)(A) of the Export Control Reform Act of 2018 ( 50 U.S.C. 4318(c)(1)(A) ); (II) section 620A of the Foreign Assistance Act of 1961 ( 22 U.S.C. 2371 ); (III) section 40 of the Arms Export Control Act ( 22 U.S.C. 2780 ); or (IV) any other provision of law; and (iii) subject to subparagraph (B), any other country designated by the Attorney General or the Commission based on expert knowledge of the sources of dangerous software. (B) Process (i) Designation Upon designating a country under subparagraph (A)(iii), the Attorney General or the Commission (in this clause referred to as the notifying party ) shall transmit a notification of the designation to the Commission or the Attorney General, as the case may be (in this clause referred to as the notified party ). Such designation shall become effective on the day that is 30 days after the date on which such notification is transmitted, unless, before such day, the notified party transmits to the notifying party and the Secretary of State an objection. The Secretary shall, not later than 30 days after the date on which the Secretary receives such objection, determine whether to designate such country under such subparagraph. (ii) Revocation of designation (I) Joint action required Except as provided in subclause (II), the designation of a country under subparagraph (A)(iii) may only be revoked by the Attorney General and the Commission, acting jointly. (II) Dispute resolution In the case of a dispute between the Attorney General and the Commission regarding whether to revoke the designation of a country under subparagraph (A)(iii), the Attorney General or the Commission may transmit to the Secretary of State a notification of such dispute. The Secretary shall, not later than 30 days after the date on which the Secretary receives such notification, determine whether to revoke such designation. (3) Covered foreign software The term covered foreign software means software that is developed by— (A) a person (other than an individual)— (i) who is organized under the laws of a covered country; or (ii) whose principal operations are conducted in a covered country; or (B) a person (other than an individual) that is, directly or indirectly, controlled by a person described in subparagraph (A). (4) Mobile application The term mobile application means a software program that runs on the operating system of a smartphone, tablet computer, or similar mobile electronic device. (5) Software The term software means any computer software program, including a mobile application. (6) Software marketplace operator The term software marketplace operator means a person who, for a commercial purpose, operates an online store or marketplace through which software is made available for download by consumers.