[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4955 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 4955
To amend the Federal Election Campaign Act of 1971 to prohibit covered
online platforms from disseminating political advertisements which are
targeted to an individual, a connected device, or to a group of
individuals or connected devices on any basis other than the recognized
place in which the individual resides or the device is located, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 6, 2021
Ms. Eshoo introduced the following bill; which was referred to the
Committee on House Administration
_______________________________________________________________________
A BILL
To amend the Federal Election Campaign Act of 1971 to prohibit covered
online platforms from disseminating political advertisements which are
targeted to an individual, a connected device, or to a group of
individuals or connected devices on any basis other than the recognized
place in which the individual resides or the device is located, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Banning Microtargeted Political Ads
Act of 2021''.
SEC. 2. RESTRICTIONS ON DISSEMINATION OF TARGETED POLITICAL
ADVERTISEMENTS BY ONLINE PLATFORMS.
(a) Restrictions.--
(1) In general.--Title III of the Federal Election Campaign
Act of 1971 (52 U.S.C. 30101 et seq.) is amended by adding at
the end the following new section:
``SEC. 325. RESTRICTIONS ON DISSEMINATION OF TARGETED POLITICAL
ADVERTISEMENTS BY ONLINE PLATFORMS.
``(a) Restrictions on Advertisements Targeted at Individuals or at
Specific Groups of Individuals.--A covered online platform, a sponsor
of a political advertisement, or an agent, affiliate, vendor, or other
person acting on behalf of such a platform or sponsor may not--
``(1) target the dissemination of a political advertisement
on a covered online platform to an individual, a connected
device, or to a group of individuals or connected devices; or
``(2) knowingly enable a third party to target the
dissemination of a political advertisement, including by
providing the third party a list of individuals or connected
devices, contact information of individuals, or other personal
information that can be used to identify individuals or
connected devices.
``(b) Exceptions.--
``(1) Targeting within recognized place.--Subsection (a)
does not apply to the targeting of the dissemination of a
political advertisement to an individual residing in, or to
connected devices located in, a recognized place.
``(2) Targeting to individuals giving express consent.--
Subsection (a) does not apply to the targeting of the
dissemination of a political advertisement to an individual
if--
``(A) the individual has provided freely given,
express, specific, informed, and unambiguous consent
directly to the sponsor--
``(i) to be an individual to whom the
dissemination of a political advertisement is
targeted by the sponsor; and
``(ii) to allow the sponsor to disclose
personal information pertaining to the
individual to another person for the purpose of
advertising;
``(B) such consent is revocable and was not
received through or by the aid of the sponsor or the
covered online platform; and
``(C) the sponsor and any agent, affiliate, vendor,
or other person disseminating a political advertisement
on behalf of the sponsor, does not use personal
information generated by or pertaining to the
individual except information that was expressly and
affirmatively provided by the individual directly to
the sponsor.
``(3) Contextual advertising.--Subsection (a) does not
apply to the targeting of the dissemination of a political
advertisement to an individual if the political advertisement--
``(A) is disseminated based on information--
``(i) that the individual is viewing or
with which the individual is otherwise
engaging; or
``(ii) for which the individual searched;
and
``(B) is displayed or otherwise disseminated in
close proximity to information described in
subparagraph (A).
``(4) Targeting on random basis.--Subsection (a) does not
apply to the targeting of the dissemination of a political
advertisement to an individual on a random basis, including on
a random basis within any of the exceptions described in this
subsection.
``(5) Rule of construction.--Nothing in this subsection
shall be construed to require a covered online platform, a
sponsor of a political advertisement, or an agent, affiliate,
vendor, or other person acting on behalf of the platform or the
sponsor to disseminate a political advertisement to an
individual who has opted out of receiving a political
advertisement or any other form of communication from the
platform, the sponsor, or any agent, affiliate, vendor, or
other person acting on behalf of the platform or the sponsor,
including opting out of receiving a specific type of
advertisement or communication, an advertisement or
communication from a particular sponsor, or any other opt-out
preference.
``(c) Private Right of Action.--
``(1) Enforcement by individuals.--
``(A) In general.--Any individual alleging a
violation of this section by a covered online platform
or an agent, affiliate, vendor, or other person acting
on behalf of a covered online platform may bring a
civil action in any court of competent jurisdiction,
State or Federal.
``(B) Relief.--In a civil action brought under
paragraph (1) in which the plaintiff prevails, the
court may award--
``(i) an amount--
``(I) not less than $100 and not
greater than $1,000 per violation
against any person who negligently
violates a provision of this section;
and
``(II) not less than $500 and not
greater than $5,000 per violation
against any person who recklessly,
willfully, or intentionally violates a
provision of this section;
``(ii) disgorgement or compensation for
unjust enrichment;
``(iii) reasonable attorney's fees and
litigation costs; and
``(iv) any other relief, including
equitable or declaratory relief, that the court
determines appropriate.
``(C) Injury in fact.--A violation of this section
constitutes a concrete and particularized injury in
fact to an individual.
``(2) Invalidity of pre-dispute arbitration agreements and
pre-dispute joint action waivers.--
``(A) In general.--Notwithstanding any other
provision of law, no pre-dispute arbitration agreement
or pre-dispute joint action waiver shall be valid or
enforceable with respect to a dispute arising under
this section.
``(B) Applicability.--Any determination as to
whether or how this subsection applies to any dispute
shall be made by a court, rather than an arbitrator,
without regard to whether such agreement purports to
delegate such determination to an arbitrator.
``(3) No effect on enforcement by commission.--The
authority of an individual to bring a civil action under this
subsection shall not be construed to affect any authority of
the Commission to take any action under this Act with respect
to an allegation of a violation of this section.
``(d) Definitions.--In this section, the following definitions
apply:
``(1) Connected device.--The term `connected device' means
any electronic equipment that is--
``(A) primarily designed for or marketed to
consumers;
``(B) capable of connecting to the internet or
another communication network; and
``(C) capable of sending, receiving, or processing
personal information.
``(2) Contents.--The term `contents', when used with
respect to any communication, has the meaning given such term
in section 2510(8) of title 18, United States Code.
``(3) Covered online platform.--The term `covered online
platform' means any website, web application, mobile
application, connected device application, digital application
(including a social network, or search engine), or advertising
network (including a network disseminating advertisements on
another website, web application, mobile application, connected
device application, or digital application) that disseminates
political advertisements, except that such term does not
include a website, application, or network (or a subsidiary or
affiliate of such a website, application, or network) that,
during the 12-month period ending on the date of the
dissemination of the political advertisement involved,
collected or processed personal information relating to fewer
than 50,000,000 individuals.
``(4) Dispute.--The term `dispute' means any claim related
to an alleged violation of this section and between an
individual and a covered online platform.
``(5) Disseminate.--The term `disseminate' means, with
respect to a political advertisement, to transmit, display, or
otherwise disseminate the political advertisement.
``(6) Dissemination.--The term `dissemination' means, with
respect to a political advertisement, the transmission,
display, or other dissemination of the political advertisement.
``(7) Indian lands.--The term `Indian lands' includes--
``(A) any Indian country of an Indian Tribe, as
defined under section 1151 of title 18, United States
Code;
``(B) any land in Alaska owned, pursuant to the
Alaska Native Claims Settlement Act (43 U.S.C. 1601 et
seq.), by an Indian Tribe that is a Native village (as
such term is defined in section 3 of that Act (43
U.S.C. 1602)) or by a Village Corporation (as such term
is defined in section 3 of that Act (43 U.S.C. 1602))
that is associated with an Indian Tribe; and
``(C) any land that is part or all of a Tribal
designated statistical area associated with an Indian
Tribe, or is part or all of an Alaska Native village
statistical area associated with an Indian Tribe, as
defined by the Bureau of the Census for the purposes of
the most recent decennial census.
``(8) Indian tribe.--The term `Indian Tribe' has the
meaning given the term `Indian tribe' in section 4 of the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 5304).
``(9) Personal information.--The term `personal
information' means data that is linked or reasonably linkable
to an individual or a connected device, including--
``(A) data inferred or derived about the individual
or connected device from other collected data, if such
data is still linked or reasonably linkable to the
individual or connected device;
``(B) contents of communications;
``(C) internet browsing history and online
activity; and
``(D) an identifier used to assign an individual to
a group for the purposes of targeting the dissemination
of an advertisement.
``(10) Political advertisement.--The term `political
advertisement' means--
``(A) an electioneering communication (as defined
in section 304(f)(3));
``(B) a communication expressly advocating the
election or defeat of a clearly identified candidate
for election for Federal office, or which is the
functional equivalent of express advocacy because, when
taken as a whole, it can be susceptible of no
reasonable interpretation other than as an appeal to
vote for or against a candidate for election for
Federal office;
``(C) a paid public communication or a public
communication promoted for payment that refers to a
clearly identified candidate for Federal office
(regardless of whether a candidate for State or local
office is also mentioned or identified) and that
promotes or supports a candidate for that office, or
attacks or opposes a candidate for that office
(regardless of whether the communication expressly
advocates a vote for or against a candidate); or
``(D) any advertisement (including search engine
marketing, display advertisements, video
advertisements, native advertisements, and
sponsorships) that is made by or on behalf of a
candidate.
``(11) Pre-dispute arbitration agreement.--The term `pre-
dispute arbitration agreement' means any agreement to arbitrate
a dispute that has not arisen at the time of making the
agreement.
``(12) Pre-dispute joint-action waiver.--The term `pre-
dispute joint-action waiver' means an agreement, whether or not
part of a pre-dispute arbitration agreement, that would
prohibit, or waive the right of, one of the parties to the
agreement to participate in a joint, class, or collective
action in a judicial, arbitral, administration, or other forum,
concerning a dispute that has not yet arisen at the time of
making the agreement.
``(13) Recognized place.--The term `recognized place' means
any of the following:
``(A) A State.
``(B) Indian lands.
``(C) A county, municipality, city, town, township,
village, borough, or similar unit of general government
that is--
``(i) incorporated pursuant to a State law;
or
``(ii) an `incorporated place' (as such
term is defined in the most recent glossary of
the Bureau of the Census).
``(D) A `census designated place' (as such term is
defined in the most recent glossary of the Bureau of
the Census).
``(E) A congressional district.
``(F) A designated market area (as defined in
section 122(j) of title 17, United States Code).
``(14) State.--The term `State' means any State of the
United States, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands of the United States, Guam,
American Samoa, the Commonwealth of the Northern Mariana
Islands, and any possession of the United States.
``(15) Target.--The term `target' means, with respect to
the dissemination of a political advertisement, to perform or
cause to be performed any computational process designed to
select an individual, connected device, or group of individuals
or connected devices to which to disseminate the political
advertisement based on personal information pertaining to the
individual or connected device or to the individuals or
connected devices that make up the group.
``(16) Third party.--The term `third party' includes, with
respect to a covered platform, a corporate affiliate or other
related party of the covered platform.''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect 3 months after the date of the enactment of
this Act.
(b) Expansion of Definition of Electioneering Communication.--
(1) Expansion to online communications.--
(A) Application to qualified internet and digital
communications.--
(i) In general.--Subparagraph (A) of
section 304(f)(3) of the Federal Election
Campaign Act of 1971 (52 U.S.C. 30104(f)(3)(A))
is amended by striking ``or satellite
communication'' each place it appears in
clauses (i) and (ii) and inserting ``satellite,
or qualified internet or digital
communication''.
(ii) Qualified internet or digital
communication.--Paragraph (3) of section 304(f)
of such Act (52 U.S.C. 30104(f)) is amended by
adding at the end the following new
subparagraph:
``(D) Qualified internet or digital
communication.--The term `qualified internet or digital
communication' means any communication which is placed
or promoted for a fee on a covered online platform (as
defined in section 325(d)(3)).''.
(B) Nonapplication of relevant electorate to online
communications.--Section 304(f)(3)(A)(i)(III) of such
Act (52 U.S.C. 30104(f)(3)(A)(i)(III)) is amended by
inserting ``any broadcast, cable, or satellite'' before
``communication''.
(C) News exemption.--Section 304(f)(3)(B)(i) of
such Act (52 U.S.C. 30104(f)(3)(B)(i)) is amended to
read as follows:
``(i) a communication appearing in a bona
fide news story, commentary, or editorial
distributed through the facilities of any
broadcasting station or any online or digital
newspaper, magazine, blog, publication, or
periodical, unless such broadcasting, online,
or digital facilities are owned or controlled
by any political party, political committee, or
candidate;''.
(2) Expansion of definition of public communication.--
Paragraph (22) of section 301 of the Federal Election Campaign
Act of 1971 (52 U.S.C. 30101(22)) is amended by striking ``or
satellite communication'' and inserting ``satellite, paid
internet, or paid digital communication, paid promotion''.
(3) Effective date.--The amendments made by this subsection
shall apply with respect to communications made on or after the
expiration of the 3-month period which begins on the date of
the enactment of this Act.
(c) Severability.--If any provision of this Act or the amendments
made by this Act, or the application thereof, is held unconstitutional
or otherwise invalid, the validity of the remainder of the Act, the
amendments, and the application of such provision shall not be affected
thereby.
<all>