Algorithmic Justice and Online Platform Transparency Act

I 117TH CONGRESS 1ST SESSION H. R. 3611 To prohibit the discriminatory use of personal information by online platforms in any algorithmic process, to require transparency in the use of algo- rithmic processes and content moderation, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 28, 2021 Ms. MATSUI introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To prohibit the discriminatory use of personal information by online platforms in any algorithmic process, to require transparency in the use of algorithmic processes and content moderation, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Algorithmic Justice 4 and Online Platform Transparency Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 23:49 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 3611 IH (1) Online platforms have become integral to 1 individuals’ full participation in economic, demo- 2 cratic, and societal processes. 3 (2) Online platforms employ manipulative dark 4 patterns, collect large amounts of personal informa- 5 tion from their users, and leverage that personal in- 6 formation for opaque algorithmic processes in ways 7 that create vastly different experiences for different 8 types of users. 9 (3) Algorithmic processes are often used by on- 10 line platforms without adequate testing and in the 11 absence of critical transparency requirements and 12 other legally enforceable safety and efficacy stand- 13 ards, which has resulted in discrimination in hous- 14 ing, lending, job advertising, and other areas of op- 15 portunity. 16 (4) The use of discriminatory algorithmic proc- 17 esses causes disproportionate harm to populations 18 that already experience marginalization. 19 (5) Online platforms constantly engage in con- 20 tent moderation decision making, resulting in highly 21 influential outcomes regarding what content is visi- 22 ble and accessible to users. 23 (6) Online platforms’ content moderation prac- 24 tices have disproportionately significant repercus- 25 VerDate Sep 11 2014 23:49 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 3611 IH sions for members of marginalized communities, who 1 have historically been the target of nefarious online 2 activity, including disinformation campaigns. 3 (7) Users of online platforms should have ac- 4 cess to understandable information about how online 5 platforms moderate content and use algorithmic 6 processes to amplify or recommend content. 7 (8) Users of online platforms should be able to 8 easily move their data to alternative online plat- 9 forms, and the importance of this right is particu- 10 larly significant given certain online platforms’ use 11 of harmful algorithmic processes and engagement in 12 ineffective content moderation. 13 (9) In a variety of sectors, algorithmic proc- 14 esses also facilitate discriminatory outcomes on on- 15 line platforms that individuals may not personally 16 interact with, but which nonetheless process the per- 17 sonal information of such individuals and have sig- 18 nificant, negative consequences. 19 (10) The people of the United States would 20 benefit from the convening of experts from a diverse 21 set of governmental positions to collectively study 22 and report on discriminatory algorithmic processes 23 across the United States economy and society, with 24 particular attention to intersections of harm. 25 VerDate Sep 11 2014 01:35 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 3611 IH SEC. 3. DEFINITIONS. 1 In this Act, the following definitions apply: 2 (1) ALGORITHMIC PROCESS.—The term ‘‘algo- 3 rithmic process’’ means a computational process, in- 4 cluding one derived from machine learning or other 5 artificial intelligence techniques, that processes per- 6 sonal information or other data for the purpose of 7 determining the order or manner that a set of infor- 8 mation is provided, recommended to, or withheld 9 from a user of an online platform, including the pro- 10 vision of commercial content, the display of social 11 media posts, or any other method of automated deci- 12 sion making, content selection, or content amplifi- 13 cation. 14 (2) BIOMETRIC INFORMATION.—The term ‘‘bio- 15 metric information’’— 16 (A) means information regarding the phys- 17 iological or biological characteristics of an indi- 18 vidual that may be used, singly or in combina- 19 tion with each other or with other identifying 20 data, to establish the identity of an individual; 21 and 22 (B) includes— 23 (i) genetic information; 24 (ii) imagery of the iris, retina, finger- 25 print, face, hand, palm, vein patterns, and 26 VerDate Sep 11 2014 23:49 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 3611 IH voice recordings, from which an identifier 1 template, such as a faceprint, a minutiae 2 template, or a voiceprint, can be extracted; 3 (iii) keystroke patterns or rhythms, 4 gait patterns or rhythms, and sleep, 5 health, or exercise data that contain identi- 6 fying information; and 7 (iv) any mathematical code, profile, or 8 algorithmic model derived from informa- 9 tion regarding the physiological or biologi- 10 cal characteristics of an individual. 11 (3) COMMISSION.—The term ‘‘Commission’’ 12 means the Federal Trade Commission. 13 (4) CONTENT MODERATION.—The term ‘‘con- 14 tent moderation’’ means— 15 (A) the intentional deletion, labeling, or ed- 16 iting of user generated content or a process of 17 purposefully decreasing access to such content 18 through the human labor of any individual that 19 is financially compensated by an online plat- 20 form, an automated process, or some combina- 21 tion thereof, pursuant to the online platform’s 22 terms of service or stated community standards; 23 and 24 VerDate Sep 11 2014 23:49 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 3611 IH (B) such other practices as the Commis- 1 sion may identify under regulations promul- 2 gated under section 553 of title 5, United 3 States Code. 4 (5) DE-IDENTIFIED.—The term ‘‘de-identified’’, 5 with respect to personal information, means infor- 6 mation that has been altered, anonymized, or aggre- 7 gated so that it cannot reasonably identify, relate to, 8 describe, or be capable of being associated with or 9 linked to, directly or indirectly, a particular indi- 10 vidual or device. 11 (6) DEMOGRAPHIC INFORMATION.—The term 12 ‘‘demographic information’’ means information re- 13 garding an individual’s or class of individuals’ race, 14 color, ethnicity, sex, religion, national origin, age, 15 gender, gender identity, sexual orientation, disability 16 status, familial status, immigration status, edu- 17 cational attainment, income, source of income, occu- 18 pation, employment status, biometric information, 19 criminal record, credit rating, or any categorization 20 used by the online platform derived from such infor- 21 mation. 22 (7) GROUP.—The term ‘‘group’’ means a page 23 or other subdivision of an online platform that func- 24 tions as a forum for users to post or otherwise dis- 25 VerDate Sep 11 2014 23:49 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 3611 IH tribute content to, or communicate with, other users 1 of such page or other subdivision. 2 (8) NON-PRECISE GEOLOCATION INFORMA- 3 TION.—The term ‘‘non-precise geolocation informa- 4 tion’’ means information regarding a country, State, 5 county, city, or ZIP code. 6 (9) ONLINE PLATFORM.—The term ‘‘online 7 platform’’ means any public-facing website, online 8 service, online application, or mobile application 9 which is operated for commercial purposes and pro- 10 vides a community forum for user generated content, 11 including a social network site, content aggregation 12 service, or service for sharing videos, images, games, 13 audio files, or other content. 14 (10) PERSONAL INFORMATION.— 15 (A) IN GENERAL.—The term ‘‘personal in- 16 formation’’ means information that directly or 17 indirectly identifies, or could be reasonably 18 linked to, a particular individual or device. 19 (B) REASONABLY LINKED.—For purposes 20 of subparagraph (A), information could be rea- 21 sonably linked to an individual or device if such 22 information can be used on its own or in com- 23 bination with other information held by, or 24 VerDate Sep 11 2014 01:35 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 3611 IH readily accessible to, a person to identify an in- 1 dividual or device. 2 (11) PLACE OF PUBLIC ACCOMMODATION.—The 3 term ‘‘place of public accommodation’’ means— 4 (A) any entity considered a place of public 5 accommodation under section 201(b) of the 6 Civil Rights Act of 1964 (42 U.S.C. 2000a(b)) 7 or section 301 of the Americans with Disabil- 8 ities Act of 1990 (42 U.S.C. 12181); or 9 (B) any commercial entity that offers 10 goods or services through the internet to the 11 general public. 12 (12) SMALL BUSINESS.— 13 (A) IN GENERAL.—The term ‘‘small busi- 14 ness’’ means a commercial entity that estab- 15 lishes, with respect to the 3 preceding calendar 16 years (or since the inception of such entity if 17 such period is less than 3 calendar years), that 18 the entity— 19 (i) maintains an average annual gross 20 revenue of less than $25,000,000; 21 (ii) on average, annually processes the 22 personal information of less than 100,000 23 individuals, households, or devices used by 24 individuals or households; 25 VerDate Sep 11 2014 23:49 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 3611 IH (iii) on average, derives 50 percent or 1 less of its annual revenue from transfer- 2 ring the personal information of individ- 3 uals; and 4 (iv) has less than 50 workers at any 5 time during such period. 6 (B) COMMON CONTROL OR BRANDING.— 7 For purposes of subparagraph (A), the amounts 8 at issue shall include the activity of any person 9 that controls, is controlled by, is under common 10 control with, or shares common branding with 11 such commercial entity. 12 (13) USER GENERATED CONTENT.—The term 13 ‘‘user generated content’’ means any content, includ- 14 ing text, images, videos, reviews, profiles, games, or 15 audio content, that is made or created (including 16 through a form, template, or other process provided 17 by the online platform) and posted on an online plat- 18 form by a user of the online platform. 19 SEC. 4. TRANSPARENCY. 20 (a) NOTICE AND REVIEW OF ALGORITHMIC PROC- 21 ESS.—Beginning 1 year after the date of enactment of this 22 Act, any online platform that employs, operates, or other- 23 wise utilizes an algorithmic process to withhold, amplify, 24 recommend, or promote content (including a group) to a 25 VerDate Sep 11 2014 23:49 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 3611 IH user of the online platform shall comply with the following 1 requirements: 2 (1) REQUIRED NOTICE.— 3 (A) IN GENERAL.—With respect to each 4 type of algorithmic process utilized by an online 5 platform, such online platform shall disclose the 6 following information to users of the online 7 platform in conspicuous, accessible, and plain 8 language that is not misleading: 9 (i) The categories of personal infor- 10 mation the online platform collects or cre- 11 ates for purposes of the type of algorithmic 12 process. 13 (ii) The manner in which the online 14 platform collects or creates such personal 15 information. 16 (iii) How the online platform uses 17 such personal information in the type of 18 algorithmic process. 19 (iv) The method by which the type of 20 algorithmic process prioritizes, assigns 21 weight to, or ranks different categories of 22 personal information to withhold, amplify, 23 recommend, or promote content (including 24 a group) to a user. 25 VerDate Sep 11 2014 23:49 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 3611 IH (B) LANGUAGE OF REQUIRED NOTICE.— 1 Such online platform shall make available the 2 notice described in subparagraph (A) in each 3 language in which the online platform provides 4 services. 5 (C) RULEMAKING.—The Commission shall 6 conduct a rulemaking to identify each type of 7 algorithmic process for which an online plat- 8 form is required to disclose the information de- 9 scribed in subparagraph (A). 10 (2) REVIEW OF ALGORITHMIC PROCESS.— 11 (A) RECORD OF ALGORITHMIC PROCESS.— 12 Subject to subparagraph (B), such online plat- 13 form shall, for 5 years, retain a record that de- 14 scribes— 15 (i) the categories of personal informa- 16 tion used by the type of algorithmic proc- 17 ess; 18 (ii) the method by which the type of 19 algorithmic process weighs or ranks certain 20 categories of personal information; 21 (iii) the method by which the online 22 platform develops its type of algorithmic 23 process, including— 24 VerDate Sep 11 2014 23:49 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3611.IH H3611 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 3611 IH (I) a description of any personal 1 information or other data used in 2 such development; 3 (II) an explanation of any per- 4 sonal information or other data used 5 to train the type of algorithmic proc- 6 ess on an ongoing basis; and 7 (III) a description of how the 8 type of algorithmic process was tested 9 for accuracy, fairness, bias, and dis- 10 crimination; and 11 (iv) if the online platform (except for 12 a small business) utilizes an algorithmic 13 process that relates to opportunities for 14 housing, education, employment, insurance, 15 credit, or the access to or terms of use of 16 any place of public accommodations, an as- 17 sessment of whether the type of algo- 18 rithmic process produces disparate out- 19 comes on the basis of an individual’s or 20 class of individuals’ actual or perceived 21 race, color, ethnicity, sex, religion, national 22 origin, gender, gender identity, sexual ori- 23 entation, familial status, biometric infor- 24 mation [Text truncated for display. 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