[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5534 Introduced in House (IH)]
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118th CONGRESS
1st Session
H. R. 5534
To prohibit targeted advertising by advertisers and advertising
facilitators, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 18, 2023
Ms. Eshoo (for herself and Ms. Schakowsky) introduced the following
bill; which was referred to the Committee on Energy and Commerce
_______________________________________________________________________
A BILL
To prohibit targeted advertising by advertisers and advertising
facilitators, 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 Surveillance Advertising Act
of 2023''.
SEC. 2. PROHIBITION ON TARGETED ADVERTISING.
(a) Prohibition on Targeting by Advertisers and Advertising
Facilitators.--
(1) In general.--An advertiser or an advertising
facilitator may not--
(A) target the dissemination of an advertisement;
or
(B) knowingly enable an advertiser (in the case of
an advertising facilitator), advertising facilitator
(in the case of an advertiser), or third party to
target the dissemination of an advertisement, including
by providing the advertiser, advertising facilitator,
or third party with--
(i) a list of individuals or connected
devices;
(ii) contact information of an individual;
(iii) a unique identifier that may be used
to identify an individual or a connected
device; or
(iv) other personal information that can be
used to identify an individual or a connected
device.
(2) Contextual advertisements.--
(A) In general.--For purposes of paragraph (1), an
advertising facilitator shall not be considered to
target the dissemination of an advertisement, or to
knowingly enable an advertiser or third party to target
the dissemination of an advertisement, to an individual
(or a connected device associated with an individual)
if the advertisement--
(i) 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
(ii) is displayed or otherwise disseminated
in close proximity to information described in
clause (i).
(B) Prohibition on further use of information
related to the delivery of contextual advertisements.--
Information collected in connection with the
dissemination of an advertisement as described in
subparagraph (A) may not be used to target the
dissemination of additional advertisements or to
knowingly enable an advertiser or third party to target
the dissemination of additional advertisements.
(b) Exception for Targeting Based on Recognized Place.--For
purposes of this section, the dissemination of an advertisement shall
not be considered to be targeted to an individual, connected device, or
group of individuals or connected devices based on a recognized place
associated with the individual, connected device, or group of
individuals or connected devices.
SEC. 3. ENFORCEMENT.
(a) Federal Trade Commission.--
(1) Unfair or deceptive acts or practices.--A violation of
this Act or a regulation promulgated under this Act shall be
treated as a violation of a rule defining an unfair or
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 the commission.--
(A) In general.--Except as provided in subparagraph
(B) and paragraph (3)--
(i) the Commission shall enforce this Act
and the regulations promulgated under this Act
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; and
(ii) any person who violates this Act or a
regulation promulgated under this Act shall be
subject to the penalties and entitled to the
privileges and immunities provided in the
Federal Trade Commission Act.
(B) Exclusive litigation authority.--
Notwithstanding section 16(a) of the Federal Trade
Commission Act (15 U.S.C. 56(a)), the Commission shall
have exclusive authority to commence or defend, and
supervise the litigation of, any action for a violation
of this Act or a regulation promulgated under this Act,
and any appeal of such action, in its own name by any
of its attorneys designated by it for such purpose,
without first referring the matter to the Attorney
General.
(3) Common carriers and nonprofit organizations.--
Notwithstanding section 4, 5(a)(2), or 6 of the Federal Trade
Commission Act (15 U.S.C. 44; 45(a)(2); 46) or any
jurisdictional limitation of the Commission, the Commission
shall also enforce this Act and the regulations promulgated
under this Act, in the same manner provided in paragraphs (1)
and (2), with respect to--
(A) common carriers subject to the Communications
Act of 1934 (47 U.S.C. 151 et seq.) and all Acts
amendatory thereof and supplementary thereto; and
(B) organizations not organized to carry on
business for their own profit or that of their members.
(4) Rulemaking authority.--The Commission may promulgate,
under section 553 of title 5, United States Code, any
regulations necessary to implement this Act.
(5) Savings clause.--Nothing in this Act shall be construed
to limit the authority of the Commission under any other
provision of law.
(b) 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 an act or practice in violation of this Act or a
regulation promulgated under this Act, 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 or an appropriate State court to
obtain appropriate relief.
(2) Rights of the commission.--
(A) Notice to the 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) 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 the 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) remove the civil action to the
appropriate district court of the
United States, if the action was not
originally brought in such court;
(II) be heard on all matters
arising in the civil action; and
(III) file petitions for appeal of
a decision in the civil action.
(C) 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.
(3) Action by the commission.--If the Commission institutes
a civil action with respect to a violation of this Act or a
regulation promulgated under this Act, 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.
(4) Actions by other state officials.--
(A) In general.--In addition to civil actions
brought by attorneys general under paragraph (1), any
other officer of a State who is authorized by the State
to do so may bring a civil action under such paragraph,
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 attorney general or
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.
(c) Private Right of Action.--
(1) Enforcement by individuals.--
(A) In general.--Any individual alleging a
violation of this Act or a regulation promulgated under
this Act may bring a civil action in any Federal or
State court of competent jurisdiction.
(B) Relief.--In a civil action brought under
subparagraph (A) in which the plaintiff prevails, the
court may award--
(i) an amount equal to--
(I) in the case of a negligent
violation, not less than $100 and not
greater than $1,000 per violation; or
(II) in the case of a reckless,
knowing, willful, or intentional
violation, not less than $500 and not
greater than $5,000 per violation;
(ii) reasonable attorney's fees and
litigation costs; and
(iii) any other relief, including equitable
or declaratory relief, that the court
determines appropriate.
(C) Injury in fact.--A violation of this Act or a
regulation promulgated under this Act with respect to
the personal information of an individual constitutes a
concrete and particularized injury in fact to that
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.
(B) Applicability.--Any determination as to whether
or how this paragraph 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.
SEC. 4. DEFINITIONS.
In this Act:
(1) Advertisement.--The term ``advertisement'' means
information provided by an advertiser to an advertising
facilitator that the advertising facilitator, in exchange for
monetary consideration or another thing of value, disseminates
to an individual, connected device, or group of individuals or
connected devices.
(2) Advertiser.--
(A) In general.--The term ``advertiser'' means a
person to the extent such person, directly or
indirectly, provides an advertising facilitator with
monetary consideration or another thing of value for
the dissemination of an advertisement to an individual,
connected device, or group of individuals or connected
devices.
(B) Exclusion.--The term ``advertiser'' does not
include a natural person, except to the extent such
person is engaged in a commercial activity that is more
than de minimis.
(3) Advertising facilitator.--
(A) In general.--The term ``advertising
facilitator'' means a person to the extent such
person--
(i) receives monetary consideration or
another thing of value to disseminate an
advertisement to an individual, connected
device, or group of individuals or connected
devices; and
(ii) collects or processes personal
information with respect to the dissemination
of the advertisement.
(B) Exclusion.--The term ``advertising
facilitator'' does not include a natural person, except
to the extent such person is engaged in a commercial
activity that is more than de minimis.
(4) Collect.--The term ``collect'' means, with respect to
personal information, to obtain such information in any manner,
except when solely transmitting, routing, providing
intermediate storage for, or providing connections for such
information through a system or network.
(5) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(6) 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.
(7) Contents.--The term ``contents'', when used with
respect to any communication, has the meaning given such term
in section 2510 of title 18, United States Code.
(8) Dispute.--The term ``dispute'' means any claim by an
individual that a person has violated this Act or the
regulations promulgated under this Act.
(9) Disseminate.--The term ``disseminate'' means, with
respect to an advertisement, to transmit, display, or otherwise
disseminate the advertisement electronically or through
communication by wire or radio.
(10) Dissemination.--The term ``dissemination'' means, with
respect to an advertisement, the transmission, display, or
other dissemination of the advertisement electronically or
through communication by wire or radio.
(11) Indian lands.--The term ``Indian lands'' includes--
(A) any Indian country of an Indian Tribe (as such
term is defined in 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.
(12) Indian tribe.--The term ``Indian Tribe'' has the
meaning given such term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304).
(13) Personal information.--The term ``personal
information'' means data linked or reasonably linkable to an
individual or 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) a unique identifier used for the purposes of
targeting the dissemination of an advertisement.
(14) 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.
(15) 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, administrative, or other forum,
concerning a dispute that has not yet arisen at the time of
making the agreement.
(16) Recognized place.--
(A) In general.--The term ``recognized place''
means any of the following:
(i) A State.
(ii) Indian lands.
(iii) A county, municipality, city, town,
township, village, borough, or similar unit of
general government that is incorporated
pursuant to a State law.
(iv) A census designated place (as defined
in the most recent glossary of the Bureau of
the Census).
(v) A designated market area (as defined in
section 122(j) of title 17, United States
Code).
(vi) A congressional district.
(B) Exclusions.--The term ``recognized place'' does
not include--
(i) a subdivision of any item listed in
subparagraph (A) that is not itself listed in
such subparagraph; or
(ii) a ZIP Code.
(17) 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.
(18) Target.--
(A) In general.--The term ``target'' means, with
respect to the dissemination of an 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 advertisement based on
personal information pertaining to the individual or
connected device or to the individuals or connected
devices that make up the group.
(B) Exclusions.--The term ``target'' does not
include, with respect to the dissemination of an
advertisement, the performance or causing the
performance of any computational process undertaken
solely for transmitting, routing, providing
intermediate storage for, or providing connections for
the advertisement through a system or network.
(19) Third party.--The term ``third party'' includes, with
respect to an advertiser or an advertising facilitator, a
subsidiary, a corporate affiliate, or other related party of
the advertiser or advertising facilitator.
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