I 

117TH CONGRESS 

2D SESSION H. R. 6416 

To prohibit targeted advertising by advertising facilitators and advertisers, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 18, 2022 

Ms. ESHOO (for herself, Ms. SCHAKOWSKY, and Mr. RUSH) introduced the 

following bill; which was referred to the Committee on Energy and Commerce 

A BILL 

To prohibit targeted advertising by advertising facilitators 

and advertisers, 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 2022’’. 

6 SEC. 2. PROHIBITION ON TARGETED ADVERTISING. 

7 (a) PROHIBITION ON TARGETING BY ADVERTISING

8 FACILITATORS.— 

9 (1) IN GENERAL.—An advertising facilitator 

10 may not— 


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

3 (B) knowingly enable an advertiser or a 

4 third party to target the dissemination of an 

5 advertisement, including by providing the adver6 tiser or third party with— 

7 (i) a list of individuals or connected 

8 devices; 

9 (ii) contact information of an indi10 vidual; 

11 (iii) a unique identifier that may be 

12 used to identify an individual or a con13 nected device; or 

14 (iv) other personal information that 

15 can be used to identify an individual or a 

16 connected device. 

17 (2) CONTEXTUAL ADVERTISEMENTS.— 

18 (A) IN GENERAL.—For purposes of para19 graph (1), an advertising facilitator shall not be 

20 considered to target the dissemination of an ad21 vertisement, or to knowingly enable an adver22 tiser or third party to target the dissemination 

23 of an advertisement, to an individual (or a con24 nected device associated with an individual) if 

25 the advertisement— 


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1 (i) is disseminated based on informa2 tion— 

3 (I) that the individual is viewing 

4 or with which the individual is other5 wise engaging; or 

6 (II) for which the individual 

7 searched; and 

8 (ii) is displayed or otherwise dissemi9 nated in close proximity to information de10 scribed in clause (i). 

11 (B) PROHIBITION ON FURTHER USE OF

12 INFORMATION RELATED TO THE DELIVERY OF

13 CONTEXTUAL ADVERTISEMENTS.—Information 

14 collected in connection with the dissemination 

15 of an advertisement as described in subpara16 graph (A) may not be used to target the dis17 semination of additional advertisements or to 

18 knowingly enable an advertiser or third party to 

19 target the dissemination of additional advertise20 ments. 

21 (3) INFORMATION PROVIDED BY OR ON BEHALF

22 OF ADVERTISER WITH ATTESTATION OF COMPLI23 ANCE.—Paragraph (1) does not apply to the tar24 geting of the dissemination of an advertisement 

25 based on information described in clauses (i) 


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1 through (iv) of subparagraph (B) of such paragraph 

2 that is provided to an advertising facilitator by an 

3 advertiser or by a third party on behalf of an adver4 tiser, if the advertising facilitator is provided a writ5 ten attestation that the advertiser is not in violation 

6 of subsection (b) with respect to such information. 

7 (b) PROHIBITION ON TARGETING BY ADVER8 TISERS.—An advertiser may not target, cause an adver9 tising facilitator to target, or knowingly enable a third 

10 party to target or cause an advertising facilitator to tar11 get, the dissemination of an advertisement (including by 

12 providing any information described in clauses (i) through 

13 (iv) of subsection (a)(1)(B)) based on personal informa14 tion— 

15 (1) that the advertiser has purchased or other16 wise obtained from another person (other than an 

17 individual to whom the personal information per18 tains); or 

19 (2) that— 

20 (A) identifies an individual as a member of 

21 a protected class; or 

22 (B) is known or should reasonably be 

23 known by the advertiser to act as a reasonable 

24 proxy for identifying an individual as a member 

25 of a protected class. 


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1 (c) EXCEPTION FOR TARGETING BASED ON RECOG2 NIZED PLACE.—For purposes of this section, the dissemi3 nation of an advertisement shall not be considered to be 

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

5 individuals or connected devices based on a recognized 

6 place associated with the individual, connected device, or 

7 group of individuals or connected devices. 

8 SEC. 3. ENFORCEMENT. 

9 (a) FEDERAL TRADE COMMISSION.— 

10 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC11 TICES.—A violation of this Act or a regulation pro12 mulgated under this Act shall be treated as a viola13 tion of a rule defining an unfair or deceptive act or 

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

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

16 (2) POWERS OF THE COMMISSION.— 

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

18 subparagraph (B) and paragraph (3)— 

19 (i) the Commission shall enforce this 

20 Act and the regulations promulgated under 

21 this Act in the same manner, by the same 

22 means, and with the same jurisdiction, 

23 powers, and duties as though all applicable 

24 terms and provisions of the Federal Trade 

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


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1 were incorporated into and made a part of 

2 this Act; and 

3 (ii) any person who violates this Act 

4 or a regulation promulgated under this Act 

5 shall be subject to the penalties and enti6 tled to the privileges and immunities pro7 vided in the Federal Trade Commission 

8 Act. 

9 (B) EXCLUSIVE LITIGATION AUTHORITY.— 

10 Notwithstanding section 16(a) of the Federal 

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

12 Commission shall have exclusive authority to 

13 commence or defend, and supervise the litiga14 tion of, any action for a violation of this Act or 

15 a regulation promulgated under this Act, and 

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

17 any of its attorneys designated by it for such 

18 purpose, without first referring the matter to 

19 the Attorney General. 

20 (3) COMMON CARRIERS AND NONPROFIT ORGA21 NIZATIONS.—Notwithstanding section 4, 5(a)(2), or 

22 6 of the Federal Trade Commission Act (15 U.S.C. 

23 44; 45(a)(2); 46) or any jurisdictional limitation of 

24 the Commission, the Commission shall also enforce 

25 this Act and the regulations promulgated under this 


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

2 and (2), with respect to— 

3 (A) common carriers subject to the Com4 munications Act of 1934 (47 U.S.C. 151 et 

5 seq.) and all Acts amendatory thereof and sup6 plementary thereto; and 

7 (B) organizations not organized to carry 

8 on business for their own profit or that of their 

9 members. 

10 (4) RULEMAKING AUTHORITY.—The Commis11 sion may promulgate, under section 553 of title 5, 

12 United States Code, any regulations necessary to 

13 implement this Act. 

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

15 shall be construed to limit the authority of the Com16 mission under any other provision of law. 

17 (b) ENFORCEMENT BY STATES.— 

18 (1) IN GENERAL.—In any case in which the at19 torney general of a State has reason to believe that 

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

21 is threatened or adversely affected by an act or prac22 tice in violation of this Act or a regulation promul23 gated under this Act, the attorney general of the 

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

25 behalf of the residents of the State in an appropriate 


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1 district court of the United States or an appropriate 

2 State court to obtain appropriate relief. 

3 (2) RIGHTS OF THE COMMISSION.— 

4 (A) NOTICE TO THE COMMISSION.— 

5 (i) IN GENERAL.—Except as provided 

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

7 State shall notify the Commission in writ8 ing that the attorney general intends to 

9 bring a civil action under paragraph (1) 

10 before initiating the civil action. 

11 (ii) CONTENTS.—The notification re12 quired by clause (i) with respect to a civil 

13 action shall include a copy of the complaint 

14 to be filed to initiate the civil action. 

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

16 for the attorney general of a State to pro17 vide the notification required by clause (i) 

18 before initiating a civil action under para19 graph (1), the attorney general shall notify 

20 the Commission immediately upon insti21 tuting the civil action. 

22 (B) INTERVENTION BY THE COMMIS23 SION.—The Commission may— 


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1 (i) intervene in any civil action 

2 brought by the attorney general of a State 

3 under paragraph (1); and 

4 (ii) upon intervening— 

5 (I) remove the civil action to the 

6 appropriate district court of the 

7 United States, if the action was not 

8 originally brought in such court; 

9 (II) be heard on all matters aris10 ing in the civil action; and 

11 (III) file petitions for appeal of a 

12 decision in the civil action. 

13 (C) INVESTIGATORY POWERS.—Nothing in 

14 this subsection may be construed to prevent the 

15 attorney general of a State from exercising the 

16 powers conferred on the attorney general by the 

17 laws of the State to conduct investigations, to 

18 administer oaths or affirmations, or to compel 

19 the attendance of witnesses or the production of 

20 documentary or other evidence. 

21 (3) ACTION BY THE COMMISSION.—If the Com22 mission institutes a civil action with respect to a vio23 lation of this Act or a regulation promulgated under 

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

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1 tion under paragraph (1) against any defendant 

2 named in the complaint of the Commission for the 

3 violation with respect to which the Commission insti4 tuted such action. 

5 (4) ACTIONS BY OTHER STATE OFFICIALS.— 

6 (A) IN GENERAL.—In addition to civil ac7 tions brought by attorneys general under para8 graph (1), any other officer of a State who is 

9 authorized by the State to do so may bring a 

10 civil action under such paragraph, subject to 

11 the same requirements and limitations that 

12 apply under this subsection to civil actions 

13 brought by attorneys general. 

14 (B) SAVINGS PROVISION.—Nothing in this 

15 subsection may be construed to prohibit an at16 torney general or authorized official of a State 

17 from initiating or continuing any proceeding in 

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

19 or criminal law of the State. 

20 (c) PRIVATE RIGHT OF ACTION.— 

21 (1) ENFORCEMENT BY INDIVIDUALS.— 

22 (A) IN GENERAL.—Any individual alleging 

23 a violation of this Act or a regulation promul24 gated under this Act may bring a civil action in 


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1 any Federal or State court of competent juris2 diction. 

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

4 under subparagraph (A) in which the plaintiff 

5 prevails, the court may award— 

6 (i) an amount equal to— 

7 (I) in the case of a negligent vio8 lation, not less than $100 and not 

9 greater than $1,000 per violation; or 

10 (II) in the case of a reckless, 

11 knowing, willful, or intentional viola12 tion, not less than $500 and not 

13 greater than $5,000 per violation; 

14 (ii) reasonable attorney’s fees and liti15 gation costs; and 

16 (iii) any other relief, including equi17 table or declaratory relief, that the court 

18 determines appropriate. 

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

20 Act or a regulation promulgated under this Act 

21 with respect to the personal information of an 

22 individual constitutes a concrete and particular23 ized injury in fact to that individual. 


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1 (2) INVALIDITY OF PRE-DISPUTE ARBITRATION

2 AGREEMENTS AND PRE-DISPUTE JOINT-ACTION

3 WAIVERS.— 

4 (A) IN GENERAL.—Notwithstanding any 

5 other provision of law, no pre-dispute arbitra6 tion agreement or pre-dispute joint-action waiv7 er shall be valid or enforceable. 

8 (B) APPLICABILITY.—Any determination 

9 as to whether or how this paragraph applies to 

10 any dispute shall be made by a court, rather 

11 than an arbitrator, without regard to whether 

12 such agreement purports to delegate such deter13 mination to an arbitrator. 

14 SEC. 4. DEFINITIONS. 

15 In this Act: 

16 (1) ADVERTISEMENT.—The term ‘‘advertise17 ment’’ means information provided by an advertiser 

18 to an advertising facilitator that the advertising 

19 facilitator, in exchange for monetary consideration 

20 or another thing of value, disseminates to an indi21 vidual, connected device, or group of individuals or 

22 connected devices. 

23 (2) ADVERTISER.— 

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

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1 rectly or indirectly, provides an advertising 

2 facilitator with monetary consideration or an3 other thing of value for the dissemination of an 

4 advertisement to an individual, connected de5 vice, or group of individuals or connected de6 vices. 

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

8 does not include a natural person, except to the 

9 extent such person is engaged in a commercial 

10 activity that is more than de minimis. 

11 (3) ADVERTISING FACILITATOR.— 

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

13 facilitator’’ means a person to the extent such 

14 person— 

15 (i) receives monetary consideration or 

16 another thing of value to disseminate an 

17 advertisement to an individual, connected 

18 device, or group of individuals or connected 

19 devices; and 

20 (ii) collects or processes personal in21 formation with respect to the dissemina22 tion of the advertisement. 

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

24 facilitator’’ does not include a natural person, 

25 except to the extent such person is engaged in 


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1 a commercial activity that is more than de 

2 minimis. 

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

4 respect to personal information, to obtain such infor5 mation in any manner, except when solely transmit6 ting, routing, providing intermediate storage for, or 

7 providing connections for such information through 

8 a system or network. 

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

10 means the Federal Trade Commission. 

11 (6) CONNECTED DEVICE.—The term ‘‘con12 nected device’’ means any electronic equipment that 

13 is— 

14 (A) primarily designed for or marketed to 

15 consumers; 

16 (B) capable of connecting to the internet 

17 or another communication network; and 

18 (C) capable of sending, receiving, or proc19 essing personal information. 

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

21 used with respect to any communication, has the 

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

23 United States Code. 

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

25 claim by an individual that a person has violated 


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1 this Act or the regulations promulgated under this 

2 Act. 

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

4 means, with respect to an advertisement, to trans5 mit, display, or otherwise disseminate the advertise6 ment electronically or through communication by 

7 wire or radio. 

8 (10) DISSEMINATION.—The term ‘‘dissemina9 tion’’ means, with respect to an advertisement, the 

10 transmission, display, or other dissemination of the 

11 advertisement electronically or through communica12 tion by wire or radio. 

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

14 includes— 

15 (A) any Indian country of an Indian Tribe 

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

17 18, United States Code); 

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

19 the Alaska Native Claims Settlement Act (43 

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

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

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

23 a Village Corporation (as such term is defined 

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

25 is associated with an Indian Tribe; and 


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

2 designated statistical area associated with an 

3 Indian Tribe, or is part or all of an Alaska Na4 tive village statistical area associated with an 

5 Indian Tribe, as defined by the Bureau of the 

6 Census for the purposes of the most recent de7 cennial census. 

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

9 has the meaning given the term ‘‘Indian tribe’’ in 

10 section 4 of the Indian Self-Determination and Edu11 cation Assistance Act (25 U.S.C. 5304). 

12 (13) PERSONAL INFORMATION.—The term 

13 ‘‘personal information’’ means data linked or reason14 ably linkable to an individual or connected device, in15 cluding— 

16 (A) data inferred or derived about the indi17 vidual or connected device from other collected 

18 data, if such data is still linked or reasonably 

19 linkable to the individual or connected device; 

20 (B) contents of communications; 

21 (C) internet browsing history and online 

22 activity; and 

23 (D) a unique identifier used for the pur24 poses of targeting the dissemination of an ad25 vertisement. 


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1 (14) PRE-DISPUTE ARBITRATION AGREE2 MENT.—The term ‘‘pre-dispute arbitration agree3 ment’’ means any agreement to arbitrate a dispute 

4 that has not arisen at the time of making the agree5 ment. 

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

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

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

9 arbitration agreement, that would prohibit, or waive 

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

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

12 judicial, arbitral, administrative, or other forum, 

13 concerning a dispute that has not yet arisen at the 

14 time of making the agreement. 

15 (16) PROTECTED CLASS.—The term ‘‘protected 

16 class’’ means the actual or perceived race, color, eth17 nicity, national origin, religion, sex (including sexual 

18 orientation and gender identity or gender expres19 sion), familial status, or disability of an individual or 

20 group of individuals. 

21 (17) RECOGNIZED PLACE.— 

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

23 place’’ means any of the following: 

24 (i) A State. 

25 (ii) Indian lands. 


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1 (iii) A county, municipality, city, 

2 town, township, village, borough, or similar 

3 unit of general government that is— 

4 (I) incorporated pursuant to a 

5 State law; or 

6 (II) an incorporated place (as de7 fined in the most recent glossary of 

8 the Bureau of the Census). 

9 (iv) A census designated place (as de10 fined in the most recent glossary of the 

11 Bureau of the Census). 

12 (v) A designated market area (as de13 fined in section 122(j) of title 17, United 

14 States Code). 

15 (vi) A congressional district. 

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

17 place’’ does not include— 

18 (i) a subdivision of any item listed in 

19 subparagraph (A) that is not itself listed in 

20 such subparagraph; or 

21 (ii) a ZIP Code. 

22 (18) STATE.—The term ‘‘State’’ means any 

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

24 the Commonwealth of Puerto Rico, the Virgin Is25 lands of the United States, Guam, American Samoa, 


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1 the Commonwealth of the Northern Mariana Is2 lands, and any possession of the United States. 

3 (19) TARGET.— 

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

5 means, with respect to the dissemination of an 

6 advertisement, to perform or cause to be per7 formed any computational process designed to 

8 select an individual, connected device, or group 

9 of individuals or connected devices to which to 

10 disseminate the advertisement based on per11 sonal information pertaining to the individual 

12 or connected device or to the individuals or con13 nected devices that make up the group. 

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

15 does not include, with respect to the dissemina16 tion of an advertisement, the performance or 

17 causing the performance of any computational 

18 process undertaken solely for transmitting, 

19 routing, providing intermediate storage for, or 

20 providing connections for the advertisement 

21 through a system or network. 

22 (20) THIRD PARTY.—The term ‘‘third party’’ 

23 includes, with respect to an advertiser or an adver24 tising facilitator, a subsidiary, a corporate affiliate, 


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1 or other related party of the advertiser or adver2 tising facilitator. 

Æ 


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