I 

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. 

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 ‘‘Banning Surveillance 

5 Advertising Act of 2023’’. 

6 SEC. 2. PROHIBITION ON TARGETED ADVERTISING. 

7 (a) PROHIBITION ON TARGETING BY ADVERTISERS

8 AND ADVERTISING FACILITATORS.— 

9 (1) IN GENERAL.—An advertiser or an adver10 tising facilitator may not— 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
2 

•HR 5534 IH

1 (A) target the dissemination of an adver2 tisement; or 

3 (B) knowingly enable an advertiser (in the 

4 case of an advertising facilitator), advertising 

5 facilitator (in the case of an advertiser), or 

6 third party to target the dissemination of an 

7 advertisement, including by providing the adver8 tiser, advertising facilitator, or third party 

9 with— 

10 (i) a list of individuals or connected 

11 devices; 

12 (ii) contact information of an indi13 vidual; 

14 (iii) a unique identifier that may be 

15 used to identify an individual or a con16 nected device; or 

17 (iv) other personal information that 

18 can be used to identify an individual or a 

19 connected device. 

20 (2) CONTEXTUAL ADVERTISEMENTS.— 

21 (A) IN GENERAL.—For purposes of para22 graph (1), an advertising facilitator shall not be 

23 considered to target the dissemination of an ad24 vertisement, or to knowingly enable an adver25 tiser or third party to target the dissemination 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
3 

•HR 5534 IH

1 of an advertisement, to an individual (or a con2 nected device associated with an individual) if 

3 the advertisement— 

4 (i) is disseminated based on informa5 tion— 

6 (I) that the individual is viewing 

7 or with which the individual is other8 wise engaging; or 

9 (II) for which the individual 

10 searched; and 

11 (ii) is displayed or otherwise dissemi12 nated in close proximity to information de13 scribed in clause (i). 

14 (B) PROHIBITION ON FURTHER USE OF

15 INFORMATION RELATED TO THE DELIVERY OF

16 CONTEXTUAL ADVERTISEMENTS.—Information 

17 collected in connection with the dissemination 

18 of an advertisement as described in subpara19 graph (A) may not be used to target the dis20 semination of additional advertisements or to 

21 knowingly enable an advertiser or third party to 

22 target the dissemination of additional advertise23 ments. 

24 (b) EXCEPTION FOR TARGETING BASED ON RECOG25 NIZED PLACE.—For purposes of this section, the dissemiVerDate Sep 11 2014 22:24 Sep 21, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5534.IH H5534

kjohnson on DSK7ZCZBW3PROD with $$_JOB
4 

•HR 5534 IH

1 nation of an advertisement shall not be considered to be 

2 targeted to an individual, connected device, or group of 

3 individuals or connected devices based on a recognized 

4 place associated with the individual, connected device, or 

5 group of individuals or connected devices. 

6 SEC. 3. ENFORCEMENT. 

7 (a) FEDERAL TRADE COMMISSION.— 

8 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC9 TICES.—A violation of this Act or a regulation pro10 mulgated under this Act shall be treated as a viola11 tion of a rule defining an unfair or deceptive act or 

12 practice under section 18(a)(1)(B) of the Federal 

13 Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). 

14 (2) POWERS OF THE COMMISSION.— 

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

16 subparagraph (B) and paragraph (3)— 

17 (i) the Commission shall enforce this 

18 Act and the regulations promulgated under 

19 this Act in the same manner, by the same 

20 means, and with the same jurisdiction, 

21 powers, and duties as though all applicable 

22 terms and provisions of the Federal Trade 

23 Commission Act (15 U.S.C. 41 et seq.) 

24 were incorporated into and made a part of 

25 this Act; and 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
5 

•HR 5534 IH

1 (ii) any person who violates this Act 

2 or a regulation promulgated under this Act 

3 shall be subject to the penalties and enti4 tled to the privileges and immunities pro5 vided in the Federal Trade Commission 

6 Act. 

7 (B) EXCLUSIVE LITIGATION AUTHORITY.— 

8 Notwithstanding section 16(a) of the Federal 

9 Trade Commission Act (15 U.S.C. 56(a)), the 

10 Commission shall have exclusive authority to 

11 commence or defend, and supervise the litiga12 tion of, any action for a violation of this Act or 

13 a regulation promulgated under this Act, and 

14 any appeal of such action, in its own name by 

15 any of its attorneys designated by it for such 

16 purpose, without first referring the matter to 

17 the Attorney General. 

18 (3) COMMON CARRIERS AND NONPROFIT ORGA19 NIZATIONS.—Notwithstanding section 4, 5(a)(2), or 

20 6 of the Federal Trade Commission Act (15 U.S.C. 

21 44; 45(a)(2); 46) or any jurisdictional limitation of 

22 the Commission, the Commission shall also enforce 

23 this Act and the regulations promulgated under this 

24 Act, in the same manner provided in paragraphs (1) 

25 and (2), with respect to— 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
6 

•HR 5534 IH

1 (A) common carriers subject to the Com2 munications Act of 1934 (47 U.S.C. 151 et 

3 seq.) and all Acts amendatory thereof and sup4 plementary thereto; and 

5 (B) organizations not organized to carry 

6 on business for their own profit or that of their 

7 members. 

8 (4) RULEMAKING AUTHORITY.—The Commis9 sion may promulgate, under section 553 of title 5, 

10 United States Code, any regulations necessary to 

11 implement this Act. 

12 (5) SAVINGS CLAUSE.—Nothing in this Act 

13 shall be construed to limit the authority of the Com14 mission under any other provision of law. 

15 (b) ENFORCEMENT BY STATES.— 

16 (1) IN GENERAL.—In any case in which the at17 torney general of a State has reason to believe that 

18 an interest of the residents of the State has been or 

19 is threatened or adversely affected by an act or prac20 tice in violation of this Act or a regulation promul21 gated under this Act, the attorney general of the 

22 State may, as parens patriae, bring a civil action on 

23 behalf of the residents of the State in an appropriate 

24 district court of the United States or an appropriate 

25 State court to obtain appropriate relief. 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
7 

•HR 5534 IH

1 (2) RIGHTS OF THE COMMISSION.— 

2 (A) NOTICE TO THE COMMISSION.— 

3 (i) IN GENERAL.—Except as provided 

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

5 State shall notify the Commission in writ6 ing that the attorney general intends to 

7 bring a civil action under paragraph (1) 

8 before initiating the civil action. 

9 (ii) CONTENTS.—The notification re10 quired by clause (i) with respect to a civil 

11 action shall include a copy of the complaint 

12 to be filed to initiate the civil action. 

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

14 for the attorney general of a State to pro15 vide the notification required by clause (i) 

16 before initiating a civil action under para17 graph (1), the attorney general shall notify 

18 the Commission immediately upon insti19 tuting the civil action. 

20 (B) INTERVENTION BY THE COMMIS21 SION.—The Commission may— 

22 (i) intervene in any civil action 

23 brought by the attorney general of a State 

24 under paragraph (1); and 

25 (ii) upon intervening— 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
8 

•HR 5534 IH

1 (I) remove the civil action to the 

2 appropriate district court of the 

3 United States, if the action was not 

4 originally brought in such court; 

5 (II) be heard on all matters aris6 ing in the civil action; and 

7 (III) file petitions for appeal of a 

8 decision in the civil action. 

9 (C) INVESTIGATORY POWERS.—Nothing in 

10 this subsection may be construed to prevent the 

11 attorney general of a State from exercising the 

12 powers conferred on the attorney general by the 

13 laws of the State to conduct investigations, to 

14 administer oaths or affirmations, or to compel 

15 the attendance of witnesses or the production of 

16 documentary or other evidence. 

17 (3) ACTION BY THE COMMISSION.—If the Com18 mission institutes a civil action with respect to a vio19 lation of this Act or a regulation promulgated under 

20 this Act, the attorney general of a State may not, 

21 during the pendency of such action, bring a civil ac22 tion under paragraph (1) against any defendant 

23 named in the complaint of the Commission for the 

24 violation with respect to which the Commission insti25 tuted such action. 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
9 

•HR 5534 IH

1 (4) ACTIONS BY OTHER STATE OFFICIALS.— 

2 (A) IN GENERAL.—In addition to civil ac3 tions brought by attorneys general under para4 graph (1), any other officer of a State who is 

5 authorized by the State to do so may bring a 

6 civil action under such paragraph, subject to 

7 the same requirements and limitations that 

8 apply under this subsection to civil actions 

9 brought by attorneys general. 

10 (B) SAVINGS PROVISION.—Nothing in this 

11 subsection may be construed to prohibit an at12 torney general or authorized official of a State 

13 from initiating or continuing any proceeding in 

14 a court of the State for a violation of any civil 

15 or criminal law of the State. 

16 (c) PRIVATE RIGHT OF ACTION.— 

17 (1) ENFORCEMENT BY INDIVIDUALS.— 

18 (A) IN GENERAL.—Any individual alleging 

19 a violation of this Act or a regulation promul20 gated under this Act may bring a civil action in 

21 any Federal or State court of competent juris22 diction. 

23 (B) RELIEF.—In a civil action brought 

24 under subparagraph (A) in which the plaintiff 

25 prevails, the court may award— 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
10 

•HR 5534 IH

1 (i) an amount equal to— 

2 (I) in the case of a negligent vio3 lation, not less than $100 and not 

4 greater than $1,000 per violation; or 

5 (II) in the case of a reckless, 

6 knowing, willful, or intentional viola7 tion, not less than $500 and not 

8 greater than $5,000 per violation; 

9 (ii) reasonable attorney’s fees and liti10 gation costs; and 

11 (iii) any other relief, including equi12 table or declaratory relief, that the court 

13 determines appropriate. 

14 (C) INJURY IN FACT.—A violation of this 

15 Act or a regulation promulgated under this Act 

16 with respect to the personal information of an 

17 individual constitutes a concrete and particular18 ized injury in fact to that individual. 

19 (2) INVALIDITY OF PRE-DISPUTE ARBITRATION

20 AGREEMENTS AND PRE-DISPUTE JOINT-ACTION

21 WAIVERS.— 

22 (A) IN GENERAL.—Notwithstanding any 

23 other provision of law, no pre-dispute arbitra24 tion agreement or pre-dispute joint-action waiv25 er shall be valid or enforceable. 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
11 

•HR 5534 IH

1 (B) APPLICABILITY.—Any determination 

2 as to whether or how this paragraph applies to 

3 any dispute shall be made by a court, rather 

4 than an arbitrator, without regard to whether 

5 such agreement purports to delegate such deter6 mination to an arbitrator. 

7 SEC. 4. DEFINITIONS. 

8 In this Act: 

9 (1) ADVERTISEMENT.—The term ‘‘advertise10 ment’’ means information provided by an advertiser 

11 to an advertising facilitator that the advertising 

12 facilitator, in exchange for monetary consideration 

13 or another thing of value, disseminates to an indi14 vidual, connected device, or group of individuals or 

15 connected devices. 

16 (2) ADVERTISER.— 

17 (A) IN GENERAL.—The term ‘‘advertiser’’ 

18 means a person to the extent such person, di19 rectly or indirectly, provides an advertising 

20 facilitator with monetary consideration or an21 other thing of value for the dissemination of an 

22 advertisement to an individual, connected de23 vice, or group of individuals or connected de24 vices. 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
12 

•HR 5534 IH

1 (B) EXCLUSION.—The term ‘‘advertiser’’ 

2 does not include a natural person, except to the 

3 extent such person is engaged in a commercial 

4 activity that is more than de minimis. 

5 (3) ADVERTISING FACILITATOR.— 

6 (A) IN GENERAL.—The term ‘‘advertising 

7 facilitator’’ means a person to the extent such 

8 person— 

9 (i) receives monetary consideration or 

10 another thing of value to disseminate an 

11 advertisement to an individual, connected 

12 device, or group of individuals or connected 

13 devices; and 

14 (ii) collects or processes personal in15 formation with respect to the dissemina16 tion of the advertisement. 

17 (B) EXCLUSION.—The term ‘‘advertising 

18 facilitator’’ does not include a natural person, 

19 except to the extent such person is engaged in 

20 a commercial activity that is more than de 

21 minimis. 

22 (4) COLLECT.—The term ‘‘collect’’ means, with 

23 respect to personal information, to obtain such infor24 mation in any manner, except when solely transmit25 ting, routing, providing intermediate storage for, or 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
13 

•HR 5534 IH

1 providing connections for such information through 

2 a system or network. 

3 (5) COMMISSION.—The term ‘‘Commission’’ 

4 means the Federal Trade Commission. 

5 (6) CONNECTED DEVICE.—The term ‘‘con6 nected device’’ means any electronic equipment that 

7 is— 

8 (A) primarily designed for or marketed to 

9 consumers; 

10 (B) capable of connecting to the internet 

11 or another communication network; and 

12 (C) capable of sending, receiving, or proc13 essing personal information. 

14 (7) CONTENTS.—The term ‘‘contents’’, when 

15 used with respect to any communication, has the 

16 meaning given such term in section 2510 of title 18, 

17 United States Code. 

18 (8) DISPUTE.—The term ‘‘dispute’’ means any 

19 claim by an individual that a person has violated 

20 this Act or the regulations promulgated under this 

21 Act. 

22 (9) DISSEMINATE.—The term ‘‘disseminate’’ 

23 means, with respect to an advertisement, to trans24 mit, display, or otherwise disseminate the advertiseVerDate Sep 11 2014 22:24 Sep 21, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H5534.IH H5534

kjohnson on DSK7ZCZBW3PROD with $$_JOB
14 

•HR 5534 IH

1 ment electronically or through communication by 

2 wire or radio. 

3 (10) DISSEMINATION.—The term ‘‘dissemina4 tion’’ means, with respect to an advertisement, the 

5 transmission, display, or other dissemination of the 

6 advertisement electronically or through communica7 tion by wire or radio. 

8 (11) INDIAN LANDS.—The term ‘‘Indian lands’’ 

9 includes— 

10 (A) any Indian country of an Indian Tribe 

11 (as such term is defined in section 1151 of title 

12 18, United States Code); 

13 (B) any land in Alaska owned, pursuant to 

14 the Alaska Native Claims Settlement Act (43 

15 U.S.C. 1601 et seq.), by an Indian Tribe that 

16 is a Native village (as such term is defined in 

17 section 3 of that Act (43 U.S.C. 1602)) or by 

18 a Village Corporation (as such term is defined 

19 in section 3 of that Act (43 U.S.C. 1602)) that 

20 is associated with an Indian Tribe; and 

21 (C) any land that is part or all of a Tribal 

22 designated statistical area associated with an 

23 Indian Tribe, or is part or all of an Alaska Na24 tive village statistical area associated with an 

25 Indian Tribe, as defined by the Bureau of the 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
15 

•HR 5534 IH

1 Census for the purposes of the most recent de2 cennial census. 

3 (12) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 

4 has the meaning given such term in section 4 of the 

5 Indian Self-Determination and Education Assistance 

6 Act (25 U.S.C. 5304). 

7 (13) PERSONAL INFORMATION.—The term 

8 ‘‘personal information’’ means data linked or reason9 ably linkable to an individual or connected device, in10 cluding— 

11 (A) data inferred or derived about the indi12 vidual or connected device from other collected 

13 data, if such data is still linked or reasonably 

14 linkable to the individual or connected device; 

15 (B) contents of communications; 

16 (C) internet browsing history and online 

17 activity; and 

18 (D) a unique identifier used for the pur19 poses of targeting the dissemination of an ad20 vertisement. 

21 (14) PRE-DISPUTE ARBITRATION AGREE22 MENT.—The term ‘‘pre-dispute arbitration agree23 ment’’ means any agreement to arbitrate a dispute 

24 that has not arisen at the time of making the agree25 ment. 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
16 

•HR 5534 IH

1 (15) PRE-DISPUTE JOINT-ACTION WAIVER.— 

2 The term ‘‘pre-dispute joint-action waiver’’ means 

3 an agreement, whether or not part of a pre-dispute 

4 arbitration agreement, that would prohibit, or waive 

5 the right of, one of the parties to the agreement to 

6 participate in a joint, class, or collective action in a 

7 judicial, arbitral, administrative, or other forum, 

8 concerning a dispute that has not yet arisen at the 

9 time of making the agreement. 

10 (16) RECOGNIZED PLACE.— 

11 (A) IN GENERAL.—The term ‘‘recognized 

12 place’’ means any of the following: 

13 (i) A State. 

14 (ii) Indian lands. 

15 (iii) A county, municipality, city, 

16 town, township, village, borough, or similar 

17 unit of general government that is incor18 porated pursuant to a State law. 

19 (iv) A census designated place (as de20 fined in the most recent glossary of the 

21 Bureau of the Census). 

22 (v) A designated market area (as de23 fined in section 122(j) of title 17, United 

24 States Code). 

25 (vi) A congressional district. 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
17 

•HR 5534 IH

1 (B) EXCLUSIONS.—The term ‘‘recognized 

2 place’’ does not include— 

3 (i) a subdivision of any item listed in 

4 subparagraph (A) that is not itself listed in 

5 such subparagraph; or 

6 (ii) a ZIP Code. 

7 (17) STATE.—The term ‘‘State’’ means any 

8 State of the United States, the District of Columbia, 

9 the Commonwealth of Puerto Rico, the Virgin Is10 lands of the United States, Guam, American Samoa, 

11 the Commonwealth of the Northern Mariana Is12 lands, and any possession of the United States. 

13 (18) TARGET.— 

14 (A) IN GENERAL.—The term ‘‘target’’ 

15 means, with respect to the dissemination of an 

16 advertisement, to perform or cause to be per17 formed any computational process designed to 

18 select an individual, connected device, or group 

19 of individuals or connected devices to which to 

20 disseminate the advertisement based on per21 sonal information pertaining to the individual 

22 or connected device or to the individuals or con23 nected devices that make up the group. 

24 (B) EXCLUSIONS.—The term ‘‘target’’ 

25 does not include, with respect to the disseminaVerDate Sep 11 2014 22:24 Sep 21, 2023 Jkt 039200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H5534.IH H5534

kjohnson on DSK7ZCZBW3PROD with $$_JOB
18 

•HR 5534 IH

1 tion of an advertisement, the performance or 

2 causing the performance of any computational 

3 process undertaken solely for transmitting, 

4 routing, providing intermediate storage for, or 

5 providing connections for the advertisement 

6 through a system or network. 

7 (19) THIRD PARTY.—The term ‘‘third party’’ 

8 includes, with respect to an advertiser or an adver9 tising facilitator, a subsidiary, a corporate affiliate, 

10 or other related party of the advertiser or adver11 tising facilitator. 

Æ 


kjohnson on DSK7ZCZBW3PROD with $$_JOB