II 

118TH CONGRESS 

1ST SESSION S. 744 

To establish duties for online service providers with respect to end user 

data that such providers collect and use. 

IN THE SENATE OF THE UNITED STATES 

MARCH 9, 2023 

Mr. SCHATZ (for himself, Ms. CORTEZ MASTO, Mr. MERKLEY, Ms. WARREN, 

Mr. BENNET, Mr. MURPHY, Ms. HIRONO, Ms. KLOBUCHAR, Ms. BALDWIN, Mr. KING, Ms. HASSAN, Mr. SANDERS, Mr. MARKEY, Mr. BOOKER, 

Ms. DUCKWORTH, Ms. SMITH, Mr. LUJA ́N, Mr. HEINRICH, and Mr. DURBIN) introduced the following bill; which was read twice and referred to 

the Committee on Commerce, Science, and Transportation 

A BILL 

To establish duties for online service providers with respect 

to end user data that such providers collect and use. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Data Care Act of 

5 2023’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) COMMISSION.—The term ‘‘Commission’’ 

2 means the Federal Trade Commission. 

3 (2) END USER.—The term ‘‘end user’’ means 

4 an individual who engages with an online service 

5 provider or logs into or uses services provided by the 

6 online service provider over the internet or any other 

7 digital network. 

8 (3) INDIVIDUAL IDENTIFYING DATA.—The term 

9 ‘‘individual identifying data’’ means any data that 

10 is— 

11 (A) collected over the internet or any other 

12 digital network; and 

13 (B) linked, or reasonably linkable, to— 

14 (i) a specific end user; or 

15 (ii) a computing device that is associ16 ated with or routinely used by an end user. 

17 (4) ONLINE SERVICE PROVIDER.—The term 

18 ‘‘online service provider’’ means an entity that— 

19 (A) is engaged in interstate commerce over 

20 the internet or any other digital network; and 

21 (B) in the course of business, collects indi22 vidual identifying data about end users, includ23 ing in a manner that is incidental to the busi24 ness conducted. 


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1 (5) SENSITIVE DATA.—The term ‘‘sensitive 

2 data’’ means any data that includes— 

3 (A) a social security number; 

4 (B) personal information (as defined in 

5 section 1302 of the Children’s Online Privacy 

6 Protection Act of 1998 (15 U.S.C. 6501)) col7 lected from a child (as defined in such section 

8 1302); 

9 (C) a driver’s license number, passport 

10 number, military identification number, or any 

11 other similar number issued on a government 

12 document used to verify identity; 

13 (D) a financial account number, credit or 

14 debit card number, or any required security 

15 code, access code, or password that is necessary 

16 to permit access to a financial account of an in17 dividual; 

18 (E) unique biometric data such as a finger 

19 print, voice print, a retina or iris image, or any 

20 other unique physical representation; 

21 (F) information sufficient to access an ac22 count of an individual, such as user name and 

23 password or email address and password; 


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1 (G) the first and last name of an indi2 vidual, or first initial and last name, or other 

3 unique identifier in combination with— 

4 (i) the month, day, and year of birth 

5 of the individual; 

6 (ii) the maiden name of the mother of 

7 the individual; or 

8 (iii) the past or present precise 

9 geolocation of the individual; 

10 (H) information that relates to— 

11 (i) the past, present, or future phys12 ical or mental health or condition of an in13 dividual; or 

14 (ii) the provision of health care to an 

15 individual; and 

16 (I) the nonpublic communications or other 

17 nonpublic user-created content of an individual. 

18 SEC. 3. PROVIDER DUTIES. 

19 (a) IN GENERAL.—An online service provider shall 

20 fulfill the duties of care, loyalty, and confidentiality under 

21 paragraphs (1), (2), and (3), respectively, of subsection 

22 (b). 

23 (b) DUTIES.— 

24 (1) DUTY OF CARE.—An online service provider 

25 shall— 


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1 (A) reasonably secure individual identifying 

2 data from unauthorized access; and 

3 (B) subject to subsection (d), promptly in4 form an end user of any breach of the duty de5 scribed in subparagraph (A) of this paragraph 

6 with respect to sensitive data of that end user. 

7 (2) DUTY OF LOYALTY.—An online service pro8 vider may not use individual identifying data, or 

9 data derived from individual identifying data, in any 

10 way that— 

11 (A) will benefit the online service provider 

12 to the detriment of an end user; and 

13 (B)(i) will result in reasonably foreseeable 

14 and material physical or financial harm to an 

15 end user; or 

16 (ii) would be unexpected and highly offen17 sive to a reasonable end user. 

18 (3) DUTY OF CONFIDENTIALITY.—An online 

19 service provider— 

20 (A) may not disclose or sell individual 

21 identifying data to, or share individual identi22 fying data with, any other person except as con23 sistent with the duties of care and loyalty under 

24 paragraphs (1) and (2), respectively; 


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1 (B) may not disclose or sell individual 

2 identifying data to, or share individual identi3 fying data with, any other person unless that 

4 person enters into a contract with the online 

5 service provider that imposes on the person the 

6 same duties of care, loyalty, and confidentiality 

7 toward the applicable end user as are imposed 

8 on the online service provider under this sub9 section; and 

10 (C) shall take reasonable steps to ensure 

11 that the practices of any person to whom the 

12 online service provider discloses or sells, or with 

13 whom the online service provider shares, indi14 vidual identifying data fulfill the duties of care, 

15 loyalty, and confidentiality assumed by the per16 son under the contract described in subpara17 graph (B), including by auditing, on a regular 

18 basis, the data security and data information 

19 practices of any such person. 

20 (c) APPLICATION OF DUTIES TO THIRD PARTIES.— 

21 If an online service provider transfers or otherwise pro22 vides access to individual identifying data to another per23 son, the requirements of paragraphs (1), (2), and (3) of 

24 subsection (b) shall apply to such person with respect to 


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1 such data in the same manner that such requirements 

2 apply to the online service provider. 

3 (d) EXPANSION OF DUTY TO INFORM REGARDING

4 BREACHES.—The Commission may promulgate regula5 tions under section 553 of title 5, United States Code, 

6 to apply the breach notification requirement under sub7 section (b)(1)(B) with respect to specific categories of in8 dividual identifying data other than sensitive data, as the 

9 Commission determines necessary. 

10 (e) EXCEPTIONS.— 

11 (1) REGULATIONS.—The Commission may pro12 mulgate regulations under section 553 of title 5, 

13 United States Code, to exempt categories of online 

14 service providers or persons described in subsection 

15 (c) from the requirement under subsection (a) or 

16 subsection (c) (as applicable). 

17 (2) CONSIDERATIONS.—In promulgating regu18 lations under paragraph (1), the Commission shall 

19 consider, among other factors— 

20 (A) the privacy risks posed by the use of 

21 individual identifying data by an online service 

22 provider or person described in subsection (c) 

23 based on— 

24 (i) the size of the provider or person; 


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1 (ii) the complexity of the offerings of 

2 the provider; 

3 (iii) the nature and scope of the ac4 tivities of the provider or person; and 

5 (iv) the sensitivity of the consumer in6 formation handled by the provider or per7 son; and 

8 (B) the costs and benefits of applying the 

9 requirement under subsection (a) or subsection 

10 (c) (as applicable) to online service providers or 

11 persons with particular combinations of charac12 teristics considered under subparagraph (A) of 

13 this paragraph. 

14 SEC. 4. ENFORCEMENT. 

15 (a) ENFORCEMENT BY COMMISSION.— 

16 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC17 TICES.—A violation of section 3 by an online service 

18 provider or a person described in section 3(c) shall 

19 be treated as a violation of a rule defining an unfair 

20 or deceptive act or practice prescribed under section 

21 18(a)(1)(B) of the Federal Trade Commission Act 

22 (15 U.S.C. 57a(a)(1)(B)). 

23 (2) POWERS OF COMMISSION.— 

24 (A) IN GENERAL.—Except as provided in 

25 subparagraph (C), the Commission shall enforce 


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1 this Act in the same manner, by the same 

2 means, and with the same jurisdiction, powers, 

3 and duties as though all applicable terms and 

4 provisions of the Federal Trade Commission 

5 Act (15 U.S.C. 41 et seq.) were incorporated 

6 into and made a part of this Act. 

7 (B) PRIVILEGES AND IMMUNITIES.—Ex8 cept as provided in subparagraph (C), any per9 son who violates section 3 shall be subject to 

10 the penalties and entitled to the privileges and 

11 immunities provided in the Federal Trade Com12 mission Act (15 U.S.C. 41 et seq.). 

13 (C) NONPROFIT ORGANIZATIONS AND COM14 MON CARRIERS.—Notwithstanding section 4 or 

15 5(a)(2) of the Federal Trade Commission Act 

16 (15 U.S.C. 44, 45(a)(2)) or any jurisdictional 

17 limitation of the Commission, the Commission 

18 shall also enforce this Act, in the same manner 

19 provided in subparagraphs (A) and (B) of this 

20 paragraph, with respect to— 

21 (i) organizations not organized to 

22 carry on business for their own profit or 

23 that of their members; and 


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1 (ii) common carriers subject to the 

2 Communications Act of 1934 (47 U.S.C. 

3 151 et seq.). 

4 (3) RULEMAKING AUTHORITY.—The Commis5 sion shall promulgate regulations under this Act in 

6 accordance with section 553 of title 5, United States 

7 Code. 

8 (b) ENFORCEMENT BY STATES.— 

9 (1) AUTHORIZATION.—Subject to paragraph 

10 (3), in any case in which the attorney general of a 

11 State has reason to believe that an interest of the 

12 residents of the State has been or is threatened or 

13 adversely affected by the engagement of an online 

14 service provider or a person described in section 3(c) 

15 in a practice that violates section 3, the attorney 

16 general of the State may, as parens patriae, bring 

17 a civil action against the online service provider or 

18 person on behalf of the residents of the State in an 

19 appropriate district court of the United States to ob20 tain appropriate relief, including civil penalties in 

21 the amount determined under paragraph (2). 

22 (2) CIVIL PENALTIES.—An online service pro23 vider or person described in section 3(c) that is 

24 found, in an action brought under paragraph (1), to 

25 have knowingly or repeatedly violated section 3 shall, 


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1 in addition to any other penalty otherwise applicable 

2 to a violation of section 3, be liable for a civil pen3 alty equal to the amount calculated by multiplying— 

4 (A) the greater of— 

5 (i) the number of days during which 

6 the online service provider or person was 

7 not in compliance with that section; or 

8 (ii) the number of end users who were 

9 harmed as a result of the violation, by 

10 (B) an amount not to exceed the maximum 

11 civil penalty for which a person, partnership, or 

12 corporation may be liable under section 

13 5(m)(1)(A) of the Federal Trade Commission 

14 Act (15 U.S.C. 45(m)(1)(A)) (including any ad15 justments for inflation). 

16 (3) RIGHTS OF FEDERAL TRADE COMMIS17 SION.— 

18 (A) NOTICE TO FEDERAL TRADE COMMIS19 SION.— 

20 (i) IN GENERAL.—Except as provided 

21 in clause (iii), the attorney general of a 

22 State shall notify the Commission in writ23 ing that the attorney general intends to 

24 bring a civil action under paragraph (1) 

25 before initiating the civil action. 


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1 (ii) CONTENTS.—The notification re2 quired under clause (i) with respect to a 

3 civil action shall include a copy of the com4 plaint to be filed to initiate the civil action. 

5 (iii) EXCEPTION.—If it is not feasible 

6 for the attorney general of a State to pro7 vide the notification required under clause 

8 (i) before initiating a civil action under 

9 paragraph (1), the attorney general shall 

10 notify the Commission immediately upon 

11 instituting the civil action. 

12 (B) INTERVENTION BY FEDERAL TRADE

13 COMMISSION.—The Commission may— 

14 (i) intervene in any civil action 

15 brought by the attorney general of a State 

16 under paragraph (1); and 

17 (ii) upon intervening— 

18 (I) be heard on all matters aris19 ing in the civil action; and 

20 (II) file petitions for appeal of a 

21 decision in the civil action. 

22 (4) INVESTIGATORY POWERS.—Nothing in this 

23 subsection may be construed to prevent the attorney 

24 general of a State from exercising the powers conVerDate Sep 11 2014 01:11 Mar 18, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S744.IS S744

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1 ferred on the attorney general by the laws of the 

2 State to— 

3 (A) conduct investigations; 

4 (B) administer oaths or affirmations; or 

5 (C) compel the attendance of witnesses or 

6 the production of documentary or other evi7 dence. 

8 (5) PREEMPTIVE ACTION BY FEDERAL TRADE

9 COMMISSION.—If the Commission institutes a civil 

10 action or an administrative action with respect to a 

11 violation of section 3, the attorney general of a State 

12 may not, during the pendency of the action, bring a 

13 civil action under paragraph (1) against any defend14 ant named in the complaint of the Commission 

15 based on the same set of facts giving rise to the al16 leged violation with respect to which the Commission 

17 instituted the action. 

18 (6) VENUE; SERVICE OF PROCESS.— 

19 (A) VENUE.—Any action brought under 

20 paragraph (1) may be brought in— 

21 (i) the district court of the United 

22 States that meets applicable requirements 

23 relating to venue under section 1391 of 

24 title 28, United States Code; or 


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1 (ii) another court of competent juris2 diction. 

3 (B) SERVICE OF PROCESS.—In an action 

4 brought under paragraph (1), process may be 

5 served in any district in which the defendant— 

6 (i) is an inhabitant; or 

7 (ii) may be found. 

8 (7) ACTIONS BY OTHER STATE OFFICIALS.— 

9 (A) IN GENERAL.—In addition to civil ac10 tions brought by attorneys general under para11 graph (1), any other consumer protection offi12 cer of a State who is authorized by the State 

13 to do so may bring a civil action under para14 graph (1), subject to the same requirements 

15 and limitations that apply under this subsection 

16 to civil actions brought by attorneys general. 

17 (B) SAVINGS PROVISION.—Nothing in this 

18 subsection may be construed to prohibit an au19 thorized official of a State from initiating or 

20 continuing any proceeding in a court of the 

21 State for a violation of any civil or criminal law 

22 of the State. 


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1 SEC. 5. NONENFORCEABILITY OF CERTAIN PROVISIONS 

2 WAIVING RIGHTS AND REMEDIES. 

3 The rights and remedies provided under this Act may 

4 not be waived or limited by contract or otherwise. 

5 SEC. 6. RELATION TO OTHER PRIVACY AND SECURITY 

6 LAWS. 

7 Nothing in this Act may be construed to— 

8 (1) modify, limit, or supersede the operation of 

9 any privacy or security provision in any other Fed10 eral or State statute or regulation; or 

11 (2) limit the authority of the Commission under 

12 any other provision of law. 

13 SEC. 7. EFFECTIVE DATE. 

14 (a) IN GENERAL.—This Act shall take effect on the 

15 date of enactment of this Act. 

16 (b) APPLICABILITY.—Section 3 shall apply with re17 spect to an online service provider or person described in 

18 section 3(c) on and after the date that is 180 days after 

19 the date of enactment of this Act. 

Æ 


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