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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5777 Introduced in House (IH)]

111th CONGRESS
  2d Session
                                H. R. 5777

      To foster transparency about the commercial use of personal 
    information, provide consumers with meaningful choice about the 
  collection, use, and disclosure of such information, and for other 
                               purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             July 19, 2010

   Mr. Rush introduced the following bill; which was referred to the 
                    Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL

 
      To foster transparency about the commercial use of personal 
    information, provide consumers with meaningful choice about the 
  collection, use, and disclosure of such information, 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Building Effective 
Strategies To Promote Responsibility Accountability Choice Transparency 
Innovation Consumer Expectations and Safeguards Act'' or the ``BEST 
PRACTICES Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2 Definitions.
          TITLE I--TRANSPARENCY, NOTICE, AND INDIVIDUAL CHOICE

Sec. 101. Information to be made available.
Sec. 102. Provision of notice or notices.
Sec. 103. Opt-out consent required for collection and use of covered 
                            information by a covered entity.
Sec. 104. Express affirmative consent.
Sec. 105. Material changes to privacy practices.
Sec. 106. Exceptions.
           TITLE II--ACCURACY, ACCESS, AND DISPUTE RESOLUTION

Sec. 201. Accuracy.
Sec. 202. Access and dispute resolution.
    TITLE III--DATA SECURITY, DATA MINIMIZATION, AND ACCOUNTABILITY

Sec. 301. Data security.
Sec. 302. Accountability.
Sec. 303. Data minimization obligations.
        TITLE IV--SAFE HARBOR AND SELF-REGULATORY CHOICE PROGRAM

Sec. 401. Safe harbor.
Sec. 402. Approval by the Federal Trade Commission.
Sec. 403. Requirements of self-regulatory program.
Sec. 404. Rulemaking.
                          TITLE V--EXEMPTIONS

Sec. 501. Use of aggregate or deidentified information.
Sec. 502. Activities covered by other Federal privacy laws.
                 TITLE VI--APPLICATION AND ENFORCEMENT

Sec. 601. General application.
Sec. 602. Enforcement by the Federal Trade Commission.
Sec. 603. Enforcement by State attorneys general.
Sec. 604. Private right of action.
Sec. 605. Effect on other laws.
                  TITLE VII--MISCELLANEOUS PROVISIONS

Sec. 701. Review.
Sec. 702. Consumer and business education campaign.
Sec. 703. Effective date.
Sec. 704. Severability.

SEC. 2. DEFINITIONS.

    As used in this Act, the following definitions apply:
            (1) Aggregate information.--The term ``aggregate 
        information'' means data that relates to a group or category of 
        services or individuals, from which all information identifying 
        an individual has been removed.
            (2) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (3) Covered entity.--The term ``covered entity'' means a 
        person engaged in interstate commerce that collects or stores 
        data containing covered information or sensitive information. 
        Such term does not include--
                    (A) the Federal Government or any instrumentality 
                of the Federal Government, nor the government of any 
                State or political subdivision of a State; or
                    (B) any person that can demonstrate that such 
                person--
                            (i) stores covered information from or 
                        about fewer than 15,000 individuals;
                            (ii) collects covered information from or 
                        about fewer than 10,000 individuals during any 
                        12-month period;
                            (iii) does not collect or store sensitive 
                        information; and
                            (iv) does not use covered information to 
                        study, monitor, or analyze the behavior of 
                        individuals as the person's primary business.
            (4) Covered information.--
                    (A) In general.--The term ``covered information'' 
                means, with respect to an individual, any of the 
                following:
                            (i) the first name or initial and last 
                        name;
                            (ii) a postal address;
                            (iii) an email address;
                            (iv) a telephone or fax number;
                            (v) a tax identification number, passport 
                        number, driver's license number, or any other 
                        unique government-issued identification number;
                            (vi) a financial account number, or credit 
                        card or debit card number, or any required 
                        security code, access code, or password that is 
                        necessary to permit access to an individual's 
                        financial account;
                            (vii) any unique persistent identifier, 
                        such as a customer number, unique pseudonym or 
                        user alias, IP address, or other unique 
                        identifier, where such identifier is used to 
                        collect, store or identify information about a 
                        specific individual or to create or maintain a 
                        preference profile; or
                            (viii) any other information that is 
                        collected, stored, used, or disclosed in 
                        connection with any covered information 
                        described in clauses (i) through (vii).
                    (B) Exclusion.--Such term shall not include--
                            (i) the title, business address, business 
                        email address, business telephone number, or 
                        business fax number associated with an 
                        individual's status as an employee of an 
                        organization, or an individual's name when 
                        collected, stored, used, or disclosed in 
                        connection with such employment status; or
                            (ii) any information collected from or 
                        about an employee by an employer, prospective 
                        employer, or former employer that directly 
                        relates to the employee-employer relationship.
            (5) Operational purpose.--
                    (A) In general.--The term ``operational purpose'' 
                means a purpose reasonably necessary to facilitate, 
                improve, or safeguard the logistical or technical 
                ability of a covered entity to provide goods or 
                services, manage its operations, comply with legal 
                obligations, or protect against risks and threats, 
                including--
                            (i) providing, operating, or improving a 
                        product or service used, requested, or 
                        authorized by an individual, including the 
                        ongoing provision of customer service and 
                        support;
                            (ii) analyzing data related to use of the 
                        product or service for purposes of improving 
                        the covered entity's products, services, or 
                        operations;
                            (iii) basic business functions such as 
                        accounting, inventory and supply chain 
                        management, quality assurance, and internal 
                        auditing;
                            (iv) protecting or defending the rights or 
                        property, including intellectual property, of 
                        the covered entity against actual or potential 
                        security threats, fraud, theft, unauthorized 
                        transactions, or other illegal activities;
                            (v) preventing imminent danger to the 
                        personal safety of an individual or group of 
                        individuals;
                            (vi) complying with a Federal, State, or 
                        local law, rule, or other applicable legal 
                        requirement, including disclosures pursuant to 
                        a court order, subpoena, summons, or other 
                        properly executed compulsory process; and
                            (vii) any other category of operational use 
                        specified by the Commission by regulation that 
                        is consistent with the purposes of this Act.
                    (B) Exclusion.--Such term shall not include--
                            (i) the use of covered information for 
                        marketing or advertising purposes, or any use 
                        of or disclosure of covered information to a 
                        third party for such purposes; or
                            (ii) the use of covered information for a 
                        purpose that an individual acting reasonably 
                        under the circumstances would not expect based 
                        on the product or service used, requested, or 
                        authorized by the individual and, if known to 
                        the individual, would likely affect the 
                        individual's conduct or decisions with respect 
                        to the covered entity's products or services.
            (6) Preference profile.--The term ``preference profile'' 
        means a list of preferences, categories of information, or 
        interests--
                    (A) associated with an individual or with an 
                individual's computer or other device;
                    (B) inferred from the actual behavior of the 
                individual, the actual use of the individual's computer 
                or other device, or information supplied directly by 
                the individual or other user of a computer or other 
                device; and
                    (C) compiled and maintained for the purpose of 
                marketing or purposes related to marketing, 
                advertising, or sales.
            (7) Publicly available information.--
                    (A) In general.--The term ``publicly available 
                information'' means any covered information or 
                sensitive information that a covered entity has a 
                reasonable basis to believe is lawfully made available 
                to the general public from--
                            (i) Federal, State, or local government 
                        records;
                            (ii) widely distributed media; or
                            (iii) disclosures to the general public 
                        that are required to be made by Federal, State, 
                        or local law.
                    (B) Construction.--A covered entity has a 
                reasonable basis to believe that information is 
                lawfully made available to the general public if the 
                covered entity has taken steps to determine--
                            (i) that the information is of a type that 
                        is available to the general public; and
                            (ii) whether an individual can direct that 
                        the information not be made available to the 
                        general public and, if so, that the individual 
                        has not done so.
            (8) Sensitive information.--
                    (A) Definition.--The term ``sensitive information'' 
                means--
                            (i) any information that is associated with 
                        covered information of an individual and 
                        relates directly to that individual's--
                                    (I) medical history, physical or 
                                mental health, or the provision of 
                                health care to the individual;
                                    (II) race or ethnicity;
                                    (III) religious beliefs and 
                                affiliation;
                                    (IV) sexual orientation or sexual 
                                behavior;
                                    (V) income, assets, liabilities, or 
                                financial records, and other financial 
                                information associated with a financial 
                                account, including balances and other 
                                financial information, except when 
                                financial account information is 
                                provided by the individual and is used 
                                only to process an authorized credit or 
                                debit to the account; or
                                    (VI) precise geolocation 
                                information and any information about 
                                the individual's activities and 
                                relationships associated with such 
                                geolocation; or
                            (ii) an individual's--
                                    (I) unique biometric data, 
                                including a fingerprint or retina scan; 
                                or
                                    (II) Social Security number.
                    (B) Modified definition by rulemaking.--The 
                Commission may, by regulations promulgated under 
                section 553 of title 5, United States Code, modify the 
                scope or application of the definition of ``sensitive 
                information'' for purposes of this Act. In promulgating 
                such regulations, the Commission shall consider--
                            (i) the purposes of the collection of the 
                        information and the context of the use of the 
                        information;
                            (ii) how easily the information can be used 
                        to identify a specific individual;
                            (iii) the nature and extent of authorized 
                        access to the information;
                            (iv) an individual's reasonable 
                        expectations under the circumstances; and
                            (v) adverse effects that may be experienced 
                        by an individual if the information is 
                        disclosed to an unauthorized person.
            (9) Service provider.--The term ``service provider'' means 
        an entity that collects, maintains, processes, stores, or 
        otherwise handles covered information or sensitive information 
        on behalf of a covered entity, including, for the purposes of 
        serving as a data processing center, distributing the 
        information, providing customer support, maintaining the 
        covered entity's records, information technology management, 
        website or other hosting service, fraud detection, 
        authentication, and other verification services, or performing 
        other administrative support functions for the covered entity.
            (10) Third party.--
                    (A) In general.--The term ``third party'' means, 
                with respect to any covered entity, a person that--
                            (i) is not related to the covered entity by 
                        common ownership or corporate control; or
                            (ii) is a business unit or corporate entity 
                        that holds itself out to the public as separate 
                        from the covered entity, such that an 
                        individual acting reasonably under the 
                        circumstances would not expect it to be related 
                        to the covered entity or to have access to 
                        covered information the individual provides to 
                        that covered entity.
                    (B) Collection of information by multiple 
                sources.--For the purpose of this definition, where 
                multiple persons collect covered information or 
                sensitive information from or about visitors to an 
                online or mobile service, including a website, all such 
                persons other than the operator or publisher of the 
                online or mobile service or website shall be considered 
                third parties unless--
                            (i) the person meets the requirements of 
                        the service provider exception in section 
                        106(1); or
                            (ii) the person otherwise does not satisfy 
                        the requirements for a third party pursuant to 
                        the regulations implemented pursuant to 
                        subparagraph (C).
                    (C) Rulemaking.--Not later than 18 months after the 
                date of the enactment of this Act, the Commission shall 
                promulgate regulations under section 553 of title 5, 
                United States Code, to clarify or modify the definition 
                of third party for purposes of this Act. In 
                promulgating such regulations, the Commission shall 
                consider--
                            (i) the brand or brands associated with a 
                        covered entity;
                            (ii) the scope and nature of the businesses 
                        engaged in by a covered entity and a third 
                        party, including the nature of the products or 
                        services offered by the covered entity and 
                        third party; and
                            (iii) the relationship between a covered 
                        entity and a third party, taking into account 
                        such factors as ownership and control.

          TITLE I--TRANSPARENCY, NOTICE, AND INDIVIDUAL CHOICE

SEC. 101. INFORMATION TO BE MADE AVAILABLE.

    A covered entity shall, in accordance with the regulations issued 
under section 102, make available to individuals whose covered 
information or sensitive information it collects or maintains the 
following information about its information privacy practices and an 
individual's options with regard to such practices:
            (1) The identity of the covered entity.
            (2) A description of any covered information or sensitive 
        information collected or stored by the covered entity.
            (3) The specific purposes for which the covered entity 
        collects and uses the covered information or sensitive 
        information, including disclosure as to whether and how the 
        covered entity customizes products or services or changes the 
        prices of products or services based, in whole or in part, on 
        covered information or sensitive information about individual 
        customers or users.
            (4) The specific purposes for which covered information or 
        sensitive information may be disclosed to a third party and the 
        categories of third parties who may receive such information 
        for each such purpose.
            (5) The choice and means the covered entity offers 
        individuals for limiting the collection, use, and disclosure of 
        covered information or sensitive information, in accordance 
        with sections 103 and 104.
            (6) A description of the information for which an 
        individual may request access and the means to request such 
        access, in accordance with section 202.
            (7) How the covered entity may merge, link, or combine 
        covered information or sensitive information collected from the 
        individual with other information about the individual that the 
        covered entity may acquire from third parties.
            (8) The retention schedule for covered information and 
        sensitive information in days, months, or years, or a statement 
        that the covered entity will retain such information 
        indefinitely or permanently.
            (9) Whether or not an individual has the right to direct 
        the covered entity to delete information collected from or 
        about the individual.
            (10) A reasonable means by which an individual may contact 
        the covered entity with any inquiries or complaints regarding 
        the covered entity's practices concerning the collection, use, 
        disclosure, or handling of the individual's covered information 
        or sensitive information in accordance with section 302(a).
            (11) The process by which the covered entity notifies 
        individuals of material changes to its policies and practices.
            (12) A hyperlink to or a listing of the Commission's online 
        consumer complaint form or the toll-free number for the 
        Commission's Consumer Response Center.
            (13) The effective date of the privacy notice.

SEC. 102. PROVISION OF NOTICE OR NOTICES.

    (a) In General.--It shall be unlawful for a covered entity to 
collect, use, or disclose covered information or sensitive information 
unless it provides the information set forth in section 101 in concise, 
meaningful, timely, prominent, and easy-to-understand notice or 
notices, in accordance with the regulations issued by the Commission 
under subsection (b).
    (b) Rulemaking.--Not later than 18 months after the date of the 
enactment of this Act, the Commission shall promulgate regulations 
under section 553 of title 5, United States Code, to implement this 
section. In promulgating such regulations, the Commission--
            (1) shall determine the means and timing of the notices 
        required under this section, taking into account the different 
        media, devices, or methods through which the covered entity 
        collects covered information or sensitive information;
            (2) shall have the authority to allow for, or require, the 
        provision of short notices or limited disclosures that do not 
        include all of the information set forth in section 101, if the 
        Commission by regulation--
                    (A) requires the information to be otherwise 
                clearly and conspicuously disclosed or available to 
                individuals; and
                    (B) determines that the provision of such short 
                notices or limited disclosures will accomplish the 
                purposes of this Act to enhance transparency and 
                provide individuals with meaningful choice regarding 
                the collection, use, and disclosure of their covered 
                information or sensitive information;
            (3) shall consider--
                    (A) whether the notice or notices provide 
                individuals with timely, effective, and meaningful 
                notice that will enable an individual to understand 
                relevant information and make informed choices;
                    (B) whether providing notice to individuals prior 
                to or contemporaneously with the collection of covered 
                information is practical or reasonable under the 
                circumstances;
                    (C) the costs of implementing the prescribed notice 
                or notices;
                    (D) the different media and context through which 
                covered information is collected;
                    (E) whether it is reasonable and appropriate under 
                the circumstances for a third party or a service 
                provider to be responsible for providing notice and 
                obtaining consent as required by this title in lieu of 
                a covered entity; and
                    (F) the risk to consumers and commerce of over-
                notification; and
            (4) may issue model notices.
    (c) Exclusion From Notice Requirements.--
            (1) Trade secret information.--Nothing in this section 
        shall require a covered entity to reveal confidential, trade 
        secret, or proprietary information.
            (2) In-person transactions.--Notice under this section 
        shall not be required for in-person collection of covered 
        information if--
                    (A) the covered information is collected for an 
                operational purpose; or
                    (B) the covered entity only is collecting the name, 
                address, email address, telephone or fax number of an 
                individual and does not--
                            (i) share the covered information with 
                        third parties; or
                            (ii) use the covered information to acquire 
                        additional information about the individual 
                        from third parties.
    (d) Retention.--A covered entity shall retain copies of the notice 
or notices issued pursuant to this section for a period of 6 years 
after the date on which such notice was issued or the date when it was 
last in effect, whichever is later, unless the Commission determines 
pursuant to the rulemaking required under subsection (b) that such 
retention is not practical under the circumstances.

SEC. 103. OPT-OUT CONSENT REQUIRED FOR COLLECTION AND USE OF COVERED 
              INFORMATION BY A COVERED ENTITY.

    (a) In General.--Except as provided in subsections (e) and (f) and 
section 106, it shall be unlawful for a covered entity to collect or 
use covered information about an individual without the consent of that 
individual, as set forth in this section. A covered entity shall be 
considered to have the consent of an individual for the collection and 
use of covered information about the individual if--
            (1) the covered entity has provided to the individual 
        notice required under section 102 and its implementing 
        regulations;
            (2) the covered entity provides the individual with a 
        reasonable means to exercise an opt-out right and decline 
        consent for such collection and use; and
            (3) the individual either affirmatively grants consent for 
        such collection and use or does not decline consent at the time 
        notice is presented or made available to the individual.
    (b) Duration of Individual's Opt-Out.--An individual's direction to 
opt out under this section is effective permanently, unless otherwise 
directed by the individual.
    (c) Subsequent Opt-Out.--A covered entity shall provide an 
individual with a reasonable means to decline consent or revoke 
previously granted consent at any time.
    (d) More Detailed Options.--A covered entity may comply with this 
section by enabling an individual to decline consent for specific uses 
of his or her covered information, provided the individual has been 
given the opportunity to decline consent for the collection and use of 
covered information for all purposes, other than for an operational 
purpose excepted by subsection (e), for which covered information may 
be collected and used by the covered entity.
    (e) Exception for Operational Purposes.--This section shall not 
apply to the collection or use of covered information for an 
operational purpose.
    (f) Collection and Use as a Condition of Service.--Nothing in this 
section shall prohibit a covered entity from requiring, as a condition 
of an individual's receipt of a service or other benefit, including the 
receipt of an enhanced or premium version of a product or service 
otherwise available, the reasonable collection and use of covered 
information about the individual, provided that--
            (1) the covered entity has a direct relationship with the 
        individual;
            (2) the covered information is not shared with any third 
        party except with the express affirmative consent as set forth 
        in section 104;
            (3) the covered entity provides a clear, prominent, and 
        specific statement describing the specific purpose or purposes 
        for which covered information may be used pursuant to section 
        101;
            (4) the individual provides consent by acknowledging the 
        specific uses set forth in the clear and prominent statement 
        required under paragraph (3) as part of receiving the service 
        or other benefit from the covered entity; and
            (5) the individual is able to later withdraw consent for 
        the use by canceling the service or otherwise indicating that 
        he or she no longer wishes to receive the service or other 
        benefit.

SEC. 104. EXPRESS AFFIRMATIVE CONSENT.

    (a) Disclosure of Covered Information to Third Parties.--
            (1) Disclosure prohibited.--Except as provided in section 
        106 and subject to title IV of this Act, it shall be unlawful 
        for a covered entity to disclose covered information about an 
        individual to a third party unless the covered entity has 
        received express affirmative consent from the individual prior 
        to the disclosure.
            (2) Exception for joint marketing.--Express affirmative 
        consent shall not be required for any disclosure related to the 
        performance of joint marketing, if the covered entity and the 
        third party enter into a contractual agreement prohibiting the 
        third party from disclosing or using the covered information 
        except as necessary to carry out the joint marketing 
        relationship.
    (b) Collection, Use, or Disclosure of Sensitive Information.--
Except as provided in section 106, a covered entity may not collect, 
use, or disclose sensitive information from or about an individual for 
any purpose unless the covered entity obtains the express affirmative 
consent of the individual.
    (c) Comprehensive Online Data Collection.--A covered entity may not 
use hardware or software to monitor all or substantially all of the 
individual's Internet browsing or other significant class of Internet 
or computer activity and collect, use, or disclose information 
concerning such activity, except--
            (1) with the express affirmative consent of the individual;
            (2) for the purpose of making such information accessible 
        to the individual or for use by the individual; or
            (3) as provided in section 106.
    (d) Limitation.--A third party that receives covered information or 
sensitive information from a covered entity pursuant to this section 
shall only use such information for the specific purposes authorized by 
the individual when the individual granted express affirmative consent 
for the disclosure of the information to a third party.
    (e) Revocation of Consent.--A covered entity that has obtained the 
express affirmative consent of an individual pursuant to this section 
and section 105 shall provide the individual with a reasonable means, 
without charge, to withdraw consent at any time thereafter.

SEC. 105. MATERIAL CHANGES TO PRIVACY PRACTICES.

    (a) Retroactive Application.--A covered entity shall provide the 
notice required by section 102 and obtain the express affirmative 
consent of the individual prior to making a material change in privacy 
practices governing previously collected covered information or 
sensitive information from that individual.
    (b) Prospective Application.--A covered entity shall not make 
material changes to its privacy practices governing the collection, 
use, or disclosure of covered information or sensitive information that 
has not been previously collected unless, 30 days before the effective 
date of the material change--
            (1) the covered entity provides individuals with notice of 
        the material change in accordance with section 102; and
            (2) if required by sections 103 and 104, obtains the 
        individual's consent to the material change or allows the 
        individual to terminate the individual's relationship with the 
        covered entity.

SEC. 106. EXCEPTIONS.

    The consent requirements of sections 103 and 104 shall not apply to 
the following:
            (1) Service providers.--
                    (A) When a covered entity discloses covered 
                information or sensitive information to a service 
                provider performing services or functions on behalf of 
                and under the instruction of the covered entity, 
                provided--
                            (i) the covered entity obtained the 
                        required consent for the initial collection of 
                        such information and provided notice as 
                        required by section 102;
                            (ii) the covered entity enters into a 
                        contractual agreement that prohibits the 
                        service provider from using or disclosing the 
                        information other than to carry out the 
                        purposes for which the information was 
                        disclosed; and
                            (iii) in such cases, the covered entity 
                        remains responsible and liable for the 
                        protection of covered information and sensitive 
                        information that has been transferred to a 
                        service provider for processing.
                    (B) When a service provider subsequently discloses 
                the information to another service provider in order to 
                perform the same services or functions described in 
                paragraph (1) on behalf of the covered entity.
            (2) Fraud detection.--Collection, use, or disclosure 
        necessary to protect or defend the rights or property, 
        including intellectual property, of the covered entity against 
        actual or potential security threats, fraud, theft, 
        unauthorized transactions, or other illegal activities.
            (3) Imminent danger.--Collection, use, or disclosure 
        necessary to prevent imminent danger to the personal safety of 
        an individual or group of individuals.
            (4) Compliance with law.--Collection, use, or disclosure 
        required in order to comply with a Federal, State, or local 
        law, rule, or other applicable legal requirement, including 
        disclosures pursuant to subpoena, summons, or other properly 
        executed compulsory process.
            (5) Publicly available information.--Collection, use, or 
        disclosure of publicly available information, except that a 
        covered entity may not use publicly available information about 
        an individual for marketing purposes if the individual has 
        opted out of the use by such covered entity of covered 
        information or sensitive information for marketing purposes.

           TITLE II--ACCURACY, ACCESS, AND DISPUTE RESOLUTION

SEC. 201. ACCURACY.

    (a) Reasonable Procedures.--Each covered entity shall establish 
reasonable procedures to assure the accuracy of the covered information 
or sensitive information it collects, assembles, or maintains. Not 
later than 18 months after the date of the enactment of this Act, the 
Commission shall promulgate regulations under section 553 of title 5, 
United States Code, to implement this section. In promulgating such 
regulations, the Commission shall consider--
            (1) the costs and benefits of ensuring the accuracy of the 
        information;
            (2) the sensitivity of the information;
            (3) the purposes for which the information will be used; 
        and
            (4) the harms from misuse of the information.
    (b) Limited Exception for Fraud Databases.--The requirement in 
subsection (a) shall not prevent the collection or maintenance of 
information that may be inaccurate with respect to a particular 
individual when that information is being collected or maintained 
solely--
            (1) for the purpose of indicating whether there may be a 
        discrepancy or irregularity in the covered information or 
        sensitive information that is associated with an individual; 
        and
            (2) to help identify, or authenticate the identity of, an 
        individual, or to protect against or investigate fraud or other 
        unlawful conduct.
    (c) Limited Exception for Publicly Available Information.--Subject 
to section 202, a covered entity shall not be required to verify the 
accuracy of publicly available information if the covered entity has 
reasonable procedures to ensure that the publicly available information 
assembled or maintained by the covered entity accurately reflects the 
information available to the general public.

SEC. 202. ACCESS AND DISPUTE RESOLUTION.

    (a) Access and Correction.--A covered entity shall, upon request, 
provide an individual with reasonable access to, and the ability to 
dispute the accuracy or completeness of, covered information or 
sensitive information about that individual if such information may be 
used for purposes that could result in an adverse decision against the 
individual, including the denial of a right, benefit, or privilege.
    (b) Access to Personal Profiles.--
            (1) In general.--Subject to title IV, a covered entity 
        shall, upon request, provide an individual with reasonable 
        access to any personal profile about that individual that the 
        entity stores in a manner that makes it accessible in the 
        normal course of business.
            (2) Special rule for preference profiles.--With respect to 
        a preference profile, the obligation to provide access and 
        correction under this section is met if the covered entity 
        provides the ability to review and change the preference 
        information associated with a unique persistent identifier.
            (3) Participation in choice program.--This subsection shall 
        not apply to a covered entity that participates in a Choice 
        Program under title IV.
    (c) Notice in Lieu of Access.--Subject to subsection (b), in those 
instances in which covered information or sensitive information is used 
only for purposes that could not reasonably result in an adverse 
decision against an individual, including the denial of a right, 
benefit, or privilege, a covered entity shall, upon request by an 
individual, provide the individual with a general notice or 
representative sample of the type or types of information the covered 
entity typically collects or stores for such purposes.
    (d) Exceptions.--
            (1) A covered entity may decline to provide an individual 
        with access to covered information or sensitive information if 
        the covered entity reasonably believes--
                    (A) the individual requesting access cannot 
                reasonably verify his or her identity as the person to 
                which the information relates;
                    (B) access by the individual to the information is 
                limited by law or legally recognized privilege;
                    (C) the information is used for a legitimate 
                governmental or fraud prevention purpose that would be 
                compromised by such access;
                    (D) such request for access is frivolous or 
                vexatious;
                    (E) the privacy or other rights of persons other 
                than the individual would be violated; or
                    (F) proprietary or confidential information, 
                technology, or business processes would be revealed as 
                a result.
            (2) Where an exception described in paragraph (1) applies 
        only to a portion of the covered information or sensitive 
        information maintained by the covered entity, the covered 
        entity shall provide access required under subsections (a) and 
        (b) to the information to which the exception does not apply.
            (3) A covered entity may decline an individual's request to 
        correct or amend covered information or sensitive information 
        pertaining to that individual where--
                    (A) a reason for denying access to the information 
                under paragraph (1) would also apply to the request to 
                correct or amend the information; or
                    (B) doing so would be incompatible with a legal 
                obligation, such as a requirement to retain certain 
                information.
    (e) Fees.--A covered entity may charge a reasonable fee, as 
determined by the Commission, for providing access in accordance with 
subsection (a) or (b).
    (f) Time Limit.--A covered entity shall respond to any access, 
correction, or amendment request within 30 days of the receipt of the 
request. Such response must consist of one or more of the following:
            (1) The requested information in accordance with subsection 
        (a) or (b).
            (2) The general notice in accordance with subsection (c).
            (3) Instructions for accessing, correcting, or amending the 
        requested information through an automated mechanism.
            (4) A confirmation that the requested corrections or 
        amendments have been made.
            (5) A notification that the covered entity is declining to 
        correct or amend information pursuant to one of the exceptions 
        described in subsection (d). Such notification shall include 
        the reason or reasons for not making the suggested correction 
        or amendment, unless one or more of such exceptions would also 
        apply to the disclosure of the reason or reasons.
            (6) A request to resubmit the access request and an 
        explanation of why the original access request was deficient in 
        cases where--
                    (A) the scope or nature of the request is unclear 
                or the entity needs more information in order to 
                respond to the request;
                    (B) the entity charges a fee as permitted under 
                subsection (e), and the fee has not been paid; or
                    (C) the entity provides interested members of the 
                public other reasonable and accessible instructions for 
                submitting an access request and such instructions were 
                not followed.
            (7) A notification that additional time is needed where--
                    (A) the entity cannot reasonably provide a full 
                response within 30 days of the receipt of the access; 
                and
                    (B) the time extension needed for a full response 
                is no greater than an additional 30 days.
    (g) Rule of Construction.--Nothing in this Act creates an 
obligation on a covered entity to provide an individual with the right 
to delete information.
    (h) Additional Requirements Where Correction or Amendment Is 
Declined.--If the covered entity declines to correct or amend the 
information described in subsection (a), the covered entity shall--
            (1) note that the information is disputed, including the 
        individual's statement disputing such information, and take 
        reasonable steps to verify such information under the 
        procedures outlined in section 201 if such information can be 
        independently verified; and
            (2) where the information was obtained from a third party 
        or is publicly available information, inform the individual of 
        the source of the information, and if reasonably available, 
        where a request for correction may be directed, and, if the 
        individual provides proof that the information is incorrect, 
        correct the inaccuracy in the covered entity's records.
    (i) Other Limitations.--The obligations under this section do not, 
by themselves, create any obligation on the covered entity to retain, 
maintain, reorganize, or restructure covered information or sensitive 
information.
    (j) Data Retention Exception.--Covered information or sensitive 
information retained by the covered entity for under 30 days, or such 
other period of time as the Commission may determine, shall not be 
subject to this section.
    (k) Rulemaking.--Not later than 18 months after the date of the 
enactment of this Act, the Commission shall promulgate regulations 
under section 553 of title 5, United States Code, to implement this 
section. In addition, the Commission shall promulgate regulations, as 
necessary, on the application of the exceptions and limitations in 
subsection (d), including any additional circumstances in which a 
covered entity may limit access to information under such subsection 
that the Commission determines to be appropriate.

    TITLE III--DATA SECURITY, DATA MINIMIZATION, AND ACCOUNTABILITY

SEC. 301. DATA SECURITY.

    (a) In General.--Each covered entity and service provider shall 
establish, implement, and maintain reasonable and appropriate 
administrative, technical, and physical safeguards to--
            (1) ensure the security, integrity, and confidentiality of 
        the covered information or sensitive information it collects, 
        assembles, or maintains;
            (2) protect against any anticipated threats, reasonably 
        foreseeable vulnerabilities, or hazards to the security or 
        integrity of such information; and
            (3) protect against unauthorized access to or use of such 
        information and loss, misuse, alteration, or destruction of 
        such information.
    (b) Factors for Appropriate Safeguards.--Not later than 18 months 
after the date of the enactment of this Act, the Commission shall 
promulgate regulations under section 553 of title 5, United States 
Code, to implement this section. In promulgating such regulations, the 
Commission shall consider--
            (1) the size and complexity of an entity;
            (2) the nature and scope of the activities of an entity;
            (3) the sensitivity of the information;
            (4) the current state of the art in administrative, 
        technical, and physical safeguards for protecting information; 
        and
            (5) the cost of implementing such safeguards.

SEC. 302. ACCOUNTABILITY.

    (a) Complaints to the Covered Entity.--A covered entity shall 
provide a process for individuals to make complaints concerning the 
covered entity's policies and procedures required by this Act.
    (b) Privacy Risk Assessment.--A covered entity shall conduct an 
assessment of the risks to individuals raised by the collection, use, 
and disclosure of covered information or sensitive information prior to 
the implementation of commercial projects, marketing initiatives, 
business models, applications, and other products or services in which 
the covered entity intends to collect, or believes there is a 
reasonable likelihood it will collect, covered information or sensitive 
information from or about more than 1,000,000 individuals.
    (c) Periodic Evaluation of Practices.--A covered entity shall 
conduct periodic assessments to evaluate--
            (1) whether the covered information or sensitive 
        information the covered entity has collected is and remains 
        necessary for the purposes disclosed at the time of collection 
        pursuant to section 101 (c) and (d); and
            (2) whether the covered entity's ongoing collection 
        practices are and remain necessary for a legitimate business 
        purpose.

SEC. 303. DATA MINIMIZATION OBLIGATIONS.

    A covered entity that uses covered information or sensitive 
information for any purpose shall retain such data only as long as 
necessary to fulfill a legitimate business purpose or comply with a 
legal requirement.

        TITLE IV--SAFE HARBOR AND SELF-REGULATORY CHOICE PROGRAM

SEC. 401. SAFE HARBOR.

    A covered entity that participates in, and is in compliance with, 1 
or more self-regulatory programs approved by the Commission under 
section 402 (in this title referred to as a ``Choice Program'') shall 
not be subject to--
            (1) the requirements for express affirmative consent 
        required under subsection 104(a) for the specified uses of 
        covered information addressed by the Choice Program as 
        described in section 403(1)(A);
            (2) the requirement of access to information under section 
        202(b); or
            (3) liability in a private right of action brought under 
        section 604.

SEC. 402. APPROVAL BY THE FEDERAL TRADE COMMISSION.

    (a) Initial Approval.--Not later than 270 days after the submission 
of an application for approval of a Choice Program under this section, 
the Commission shall approve or decline to approve such program. The 
Commission shall only approve such program if the Commission finds, 
after notice and comment, that the program complies with the 
requirements of section 403.
    (b) Approval of Modifications.--The Commission shall approve or 
decline to approve any material change in a Choice Program previously 
approved by the Commission within 120 days after submission of an 
application for approval by such program. The Commission shall only 
approve such material change if the Commission finds, after notice and 
comment, that the proposed change complies with the requirements of 
section 403.
    (c) Duration.--A Choice Program approved by the Commission under 
this section shall be approved for a period of 5 years.
    (d) Appeals.--Final action by the Commission on a request for 
approval, or the failure to act within 270 days on a request for 
approval, submitted under this section may be appealed to a district 
court of the United States of appropriate jurisdiction as provided for 
in section 706 of title 5, United States Code.

SEC. 403. REQUIREMENTS OF SELF-REGULATORY PROGRAM.

    To be approved as a Choice Program under this section, a program 
shall--
            (1) provide individuals with--
                    (A) a clear and conspicuous opt-out mechanism that, 
                when selected by the individual, prohibits all covered 
                entities participating in the Choice Program from 
                disclosing covered information to a third party for 1 
                or more specified uses, and may offer individuals a 
                preference management tool that will enable an 
                individual to make more detailed choices about the 
                transfer of covered information to a third party; and
                    (B) a clear and conspicuous mechanism to set 
                communication preferences, online behavioral 
                advertising preferences, and such other preferences as 
                the Choice Program may determine, subject to the 
                approval of the Commission, that when selected by the 
                individual, applies the individual's selected 
                preferences to all covered entities participating in 
                the Choice Program; and
            (2) establish--
                    (A) guidelines and procedures requiring a 
                participating covered entity to provide equivalent or 
                greater protections for individuals and their covered 
                information and sensitive information as are provided 
                under titles I and II;
                    (B) procedures for reviewing applications by 
                covered entities to participate in the Choice Program;
                    (C) procedures for periodic assessment of its 
                procedures and for conducting periodic random 
                compliance testing of covered entities participating in 
                such Choice Program; and
                    (D) consequences for failure to comply with program 
                requirements, such as public notice of the covered 
                entity's noncompliance, suspension, or expulsion from 
                the program, or referral to the Commission for 
                enforcement.

SEC. 404. RULEMAKING.

    Not later than 18 months after the date of enactment of this Act, 
the Commission shall promulgate regulations under section 553 of title 
5, United States Code, to implement this section and to provide 
compliance guidance for entities seeking to be approved under this 
title, including regulations--
            (1) establishing criteria for the submission of the 
        application, including evidence of how the Choice Program will 
        comply with the requirements of section 403;
            (2) establishing criteria for opt-out mechanisms and 
        communication preferences, online behavioral advertising 
        preferences, or other preferences meeting the requirements of 
        this title;
            (3) establishing consequences for failure to comply with 
        the requirements of section 403, such as public notice of the 
        Choice Program's noncompliance and suspension or revocation of 
        the Commission's approval of such Program as described in 
        section 402;
            (4) allowing for and promoting continued evolution and 
        innovation in privacy protection, meaningful consumer control, 
        simplified approaches to disclosure, and transparency; and
            (5) providing additional incentives for self-regulation by 
        covered entities to implement the protections afforded 
        individuals under titles I and II of this Act, including 
        provisions for ensuring that a covered entity will be 
        considered to be in compliance with the requirements of titles 
        I and II and the regulations issued under such titles if that 
        covered entity complies with guidelines or requirements of a 
        Choice Program approved under section 402.

                          TITLE V--EXEMPTIONS

SEC. 501. USE OF AGGREGATE OR DEIDENTIFIED INFORMATION.

    (a) General Exclusion.--Subject to subsections (b) and (c), nothing 
in this Act shall preclude a covered entity from collecting, using, or 
disclosing--
            (1) aggregate information; or
            (2) covered information or sensitive information from which 
        identifying information has been obscured or removed using 
        reasonable and appropriate methods such that the remaining 
        information does not identify, and there is no reasonable basis 
        to believe that the information can be used to identify--
                    (A) the specific individual to whom such covered 
                information relates; or
                    (B) a computer or device owned or used by a 
                specific individual.
    (b) Reasonable Procedures for Disclosure.--If a covered entity 
discloses the information described in paragraphs (1) and (2) of 
subsection (a) to a third party, the covered entity shall take 
reasonable steps to protect such information, including, in the case of 
the information described in such paragraph (2), not disclosing the 
algorithm or other mechanism used to obscure or remove the identifying 
information, and obtaining satisfactory written assurance that the 
third party will not attempt to reconstruct the identifying 
information.
    (c) Prohibition on Reconstructing or Revealing Identifying 
Information.--
            (1) In general.--It shall be unlawful for any person to 
        reconstruct or reveal the identifying information that has been 
        removed or obscured (as described in subsection (a)(2)) and for 
        which a covered entity claims or has claimed the benefit of the 
        general exemption in subsection (a).
            (2) Rulemaking.--Not later than 18 months after the date of 
        the enactment of this Act, the Commission shall promulgate 
        regulations under section 553 of title 5, United States Code, 
        to establish exemptions to this subsection. In promulgating 
        such regulations, the Commission shall consider--
                    (A) the purposes for which such identifying 
                information may need to be reconstructed or revealed;
                    (B) the size and sensitivity of the data set; and
                    (C) public policy issues such as health, safety, 
                and national security.

SEC. 502. ACTIVITIES COVERED BY OTHER FEDERAL PRIVACY LAWS.

    Except as provided expressly in this Act, this Act shall have no 
effect on activities covered by any of the following:
            (1) Title V of the Gramm-Leach-Bliley Act (15 U.S.C. 6801 
        et seq.).
            (2) The Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).
            (3) The Health Insurance Portability and Accountability Act 
        of 1996 (Public Law 104-191).
            (4) Part C of title XI of the Social Security Act (42 
        U.S.C. 1320d et seq.).
            (5) Sections 222 and 631 of the Communications Act of 1934 
        (47 U.S.C. 222 and 47 U.S.C. 551).
            (6) The Children's Online Privacy Protection Act of 1998 
        (15 U.S.C. 6501 et seq.).
            (7) The CAN-SPAM Act of 2003 (15 U.S.C. 7701 et seq.).
            (8) The Electronic Communications Privacy Act of 1986 (18 
        U.S.C. 2510 et seq.).
            (9) The Video Privacy Protection Act (18 U.S.C. 2710 et 
        seq.).

                 TITLE VI--APPLICATION AND ENFORCEMENT

SEC. 601. GENERAL APPLICATION.

    The requirements of this Act shall only apply to those persons over 
which the Commission has authority pursuant to section 5(a)(2) of the 
Federal Trade Commission Act. Notwithstanding any provision of such Act 
or any other provision of law, common carriers subject to the 
Communications Act of 1934 (47 U.S.C. 151 et seq.) and any amendment 
thereto shall be subject to the jurisdiction of the Commission for 
purposes of this Act.

SEC. 602. ENFORCEMENT BY THE FEDERAL TRADE COMMISSION.

    (a) Unfair or Deceptive Acts or Practices.--A violation of titles 
I, II, or III shall be treated as an unfair and deceptive act or 
practice in 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.
    (b) Powers of Commission.--The Commission shall enforce 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. Any person who violates this Act or 
the regulations issued under this Act shall be subject to the penalties 
and entitled to the privileges and immunities provided in that Act.
    (c) Rulemaking Authority.--
            (1) Rulemaking.--The Commission may, in accordance with 
        section 553 of title 5, United States Code, issue such 
        regulations it determines to be necessary to carry out this 
        Act.
            (2) Authority to grant exceptions.--The regulations 
        prescribed under paragraph (1) may include such additional 
        exceptions to titles I, II, III, IV, and V of this Act as the 
        Commission considers consistent with the purposes of this Act.
            (3) Limitation.--In promulgating rules under this Act, the 
        Commission shall not require the deployment or use of any 
        specific products or technologies, including any specific 
        computer software or hardware.

SEC. 603. ENFORCEMENT BY STATE ATTORNEYS GENERAL.

    (a) Civil Action.--In any case in which the Attorney General of a 
State, or an official or agency of a State, has reason to believe that 
an interest of the residents of that State has been or is threatened or 
adversely affected by any person who violates this Act, the attorney 
general, official, or agency of the State, as parens patriae, may bring 
a civil action on behalf of the residents of the State in an 
appropriate district court of the United States--
            (1) to enjoin further violation of this Act by the 
        defendant;
            (2) to compel compliance with this Act; or
            (3) for violations of titles I, II, or III of this Act, to 
        obtain civil penalties in the amount determined under 
        subsection (b).
    (b) Civil Penalties.--
            (1) Calculation.--For purposes of calculating the civil 
        penalties that may be obtained under subsection (a)(3)--
                    (A) with regard to a violation of title I, the 
                amount determined under this paragraph is the amount 
                calculated by multiplying the number of days that a 
                covered entity is not in compliance with such title, or 
                the number of individuals for whom the covered entity 
                failed to obtain consent as required by such title, 
                whichever is greater, by an amount not to exceed 
                $11,000; and
                    (B) with regard to a violation of title II or III, 
                the amount determined under this paragraph is the 
                amount calculated by multiplying the number of days 
                that a covered entity is not in compliance with such 
                title or titles by an amount not to exceed $11,000.
            (2) Adjustment for inflation.--Beginning on the date that 
        the Consumer Price Index for All Urban Consumers is first 
        published by the Bureau of Labor Statistics that is after 1 
        year after the date of enactment of this Act, and each year 
        thereafter, the amounts specified in subparagraphs (A) and (B) 
        of paragraph (1) shall be increased by the percentage increase 
        in the Consumer Price Index published on that date from the 
        Consumer Price Index published the previous year.
            (3) Maximum total liability.--Notwithstanding the number of 
        actions which may be brought against a person under this 
        section the maximum civil penalty for which any person may be 
        liable under this section shall not exceed--
                    (A) $5,000,000 for any related series of violations 
                of title I; and
                    (B) $5,000,000 for any related series of violations 
                of title II and title III.
            (4) Effect of participation in choice program.--If a 
        covered entity participates in a Choice Program established 
        under title IV and cures the alleged violation of title I or II 
        in a reasonable period of time after receiving notice of the 
        alleged violation, such conduct shall be taken into 
        consideration by a State or a court in determining the amount 
        of civil penalties under this subsection.
    (c) Intervention by the FTC.--
            (1) Notice and intervention.--The State shall provide prior 
        written notice of any action under subsection (a) to the 
        Commission and provide the Commission with a copy of its 
        complaint, except in any case in which such prior notice is not 
        feasible, in which case the State shall serve such notice 
        immediately upon instituting such action. The Commission shall 
        have the right--
                    (A) to intervene in the action;
                    (B) upon so intervening, to be heard on all matters 
                arising therein; and
                    (C) to file petitions for appeal.
            (2) Limitation on state action while federal action is 
        pending.--If the Commission has instituted a civil action for 
        violation of this Act, no attorney general of a State, or 
        official, or agency of a State, may bring an action under this 
        section during the pendency of that action against any 
        defendant named in the complaint of the Commission for any 
        violation of this Act alleged in the complaint.
    (d) Construction.--For purposes of bringing any civil action under 
subsection (a), nothing in this Act shall be construed to prevent an 
attorney general of a State from exercising the powers conferred on the 
attorney general by the laws of that State to--
            (1) conduct investigations;
            (2) administer oaths or affirmations; or
            (3) compel the attendance of witnesses or the production of 
        documentary and other evidence.

SEC. 604. PRIVATE RIGHT OF ACTION.

    (a) In General.--A covered entity, other than a covered entity that 
participates in and is in compliance with a Choice Program established 
under title IV, who willfully fails to comply with sections 103 or 104 
of this Act with respect to any individual is liable to that individual 
in a civil action brought in a district court of the United States of 
appropriate jurisdiction in an amount equal to the sum of--
            (1) the greater of any actual damages of not less than $100 
        and not more than $1,000;
            (2) such amount of punitive damages as the court may allow; 
        and
            (3) in the case of any successful action under this 
        section, the costs of the action together with reasonable 
        attorney's fees as determined by the court.
    (b) Limitation.--A civil action under this section may not be 
commenced later than 2 years after the date upon which the claimant 
first discovered or had a reasonable opportunity to discover the 
violation.

SEC. 605. EFFECT ON OTHER LAWS.

    (a) Preemption of State Laws.--This Act supersedes any provision of 
a statute, regulation, or rule of a State or political subdivision of a 
State, with respect to those entities covered by the regulations issued 
pursuant to this Act, that expressly requires covered entities to 
implement requirements with respect to the collection, use, or 
disclosure of covered information addressed in this Act.
    (b) Additional Preemption.--
            (1) In general.--No person other than a person specified in 
        section 603 or 604 may bring a civil action under the laws of 
        any State if such action is premised in whole or in part upon 
        the defendant violating any provision of this Act.
            (2) Protection of state consumer protection laws.--This 
        subsection shall not be construed to limit the enforcement of 
        any State consumer protection law by an attorney general or 
        other official of a State.
    (c) Protection of Certain State Laws.--This Act shall not be 
construed to preempt the applicability of--
            (1) State laws that address the collection, use, or 
        disclosure of health information or financial information;
            (2) State laws that address notification requirements in 
        the event of a data breach;
            (3) State trespass, contract, or tort law; or
            (4) other State laws to the extent that those laws relate 
        to acts of fraud.
    (d) Preservation of FTC Authority.--Nothing in this Act may be 
construed in any way to limit or affect the Commission's authority 
under any provision of law.
    (e) Rule of Construction Relating to Required Disclosures to 
Government Entities.--This Act shall not be construed to expand or 
limit the duty or authority of a covered entity, service provider, or 
third party to disclose covered information or sensitive information to 
a government entity under any provision of law.

                  TITLE VII--MISCELLANEOUS PROVISIONS

SEC. 701. REVIEW.

    Not later than 5 years after the effective date of the regulations 
initially issued under this Act, the Commission shall--
            (1) review the implementation of this Act, including the 
        effect of the implementation of this Act on practices relating 
        to the collection, use, and disclosure of covered information 
        and sensitive information; and
            (2) prepare and submit to Congress a report on the results 
        of the review under paragraph (1).

SEC. 702. CONSUMER AND BUSINESS EDUCATION CAMPAIGN.

    Beginning on the effective date of this Act as set forth in section 
703, the Commission shall--
            (1) conduct a consumer education campaign to inform 
        individuals of the rights and protections afforded by this Act 
        and the steps that individuals can take to affirmatively 
        consent or decline consent to the collection, use, and 
        disclosure of information under this Act and the regulations 
        issued pursuant to this Act; and
            (2) provide guidance to businesses regarding their 
        obligations under this Act, including guidance on how to 
        participate in a Choice Program approved under title IV.

SEC. 703. EFFECTIVE DATE.

    This Act shall take effect 2 years after the date of the enactment 
of this Act. The Commission may stay enforcement of this Act for such 
period of time as the Commission determines necessary to allow for the 
establishment and Commission approval of a Choice Program under title 
IV and for covered entities to commence participation in such a 
program.

SEC. 704. SEVERABILITY.

    If any provision of this Act, or the application thereof to any 
person or circumstance, is held unconstitutional or otherwise invalid, 
the validity of the remainder of the Act and the application of such 
provision to other persons and circumstances shall not be affected 
thereby.
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