II 

108TH CONGRESS 

2D SESSION S. 2160

To regulate interstate commerce by prohibiting the sale of children’s 

personally identifiable information for commercial marketing purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 3, 2004

Mr. WYDEN (for himself, Mr. STEVENS, and Ms. MURKOWSKI) introduced the 

following bill; which was read twice and referred to the Committee on 

Commerce, Science, and Transportation 

A BILL

To regulate interstate commerce by prohibiting the sale of 

children’s personally identifiable information for commercial marketing 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 ‘‘Children’s Listbroker 

5 Privacy Act’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 

8 (1) Commercial list brokers routinely advertise 

9 and sell detailed information on children, including 
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1 names, addresses, ages, and other data, for use in 

2 marketing. This data is commonly available on chil3 dren as young as two years old, enabling marketers 

4 to target specific demographics such as junior high 

5 school, elementary school, or even preschool. 

6 (2) Commercially available marketing databases 

7 can be very large, covering millions of children. 

8 (3) Commercially available marketing databases 

9 can include a variety of information on the children 

10 they cover, from ethnicity to family income to hob11 bies and interests. 

12 (4) Money spent on marketing to children has 

13 been estimated at $12 billion per year. 

14 (5) Several Federal statutes, including section 

15 1061 of the No Child Left Behind Act, the Chil16 dren’s Online Privacy Protection Act, and the Fam17 ily and Educational Rights and Privacy Act, restrict 

18 the collection and disclosure of information about 

19 children or students under specified circumstances. 

20 When data on children is collected in a manner that 

21 is outside the scope of those statutes, however, Fed22 eral law does not significantly restrict the commer23 cial sale or resale of such data. 

24 (6) The ability to sell information about chil25 dren to marketers for a profit creates an economic 
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1 incentive to find new and creative ways to collect 

2 and compile such information, and possibly to cir3 cumvent or subvert the intent of those federal stat4 utes that do govern the collection of information 

5 about children or students. There are a variety of 

6 means and sources that marketers and list brokers 

7 can and do use to compile names, addresses, and 

8 other data about children. 

9 SEC. 3. RESTRICTION ON SALE OR PURCHASE OF CHIL10 DREN’S PERSONAL INFORMATION. 

11 (a) IN GENERAL.—It is unlawful—

12 (1) to sell personal information about an indi13 vidual the seller knows to be a child; 

14 (2) to purchase personal information about an 

15 individual identified by the seller as a child, for the 

16 purpose of marketing to that child; or 

17 (3) for a person who has provided a certifi18 cation pursuant to subsection (b)(2), in connection 

19 with the purchase of personal information about an 

20 individual identified by the seller as a child, to en21 gage in any practice that violates the terms of the 

22 certification. 

23 (b) EXCEPTIONS.—

24 (1) PARENTAL CONSENT.—Subsection (a) does 

25 not apply to any sale, purchase, or use of personal 
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1 information about a child if the parent of the child 

2 has granted express consent to that sale, purchase, 

3 or use of the information. 

4 (2) CERTIFICATION.—Subsection (a)(1) shall 

5 not apply to the sale of personal information about 

6 a child if the purchaser certifies to the seller, elec7 tronically or in writing, before the sale is com8 pleted—

9 (A) the purpose for which the information 

10 will be used by the purchaser; and 

11 (B) that the purchaser will neither—

12 (i) use the information for marketing 

13 that child; nor 

14 (ii) permit the information to be used 

15 by others for the purpose of marketing to 

16 that child. 

17 SEC. 4. ADMINISTRATION AND ENFORCEMENT. 

18 (a) IN GENERAL.—Except as provided in subsection 

19 (b), this Act shall be enforced by the Commission as if 

20 the violation of section 3 of this Act were an unfair or

21 deceptive act or practice proscribed under section 

22 18(a)(1)(B) of the Federal Trade Commission Act (15 

23 U.S.C. 57a(a)(1)(B)). 
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1 (b) ENFORCEMENT BY CERTAIN OTHER AGEN2 CIES.—Compliance with this Act shall be enforced 

3 under— 

4 (1) section 8 of the Federal Deposit Insurance 

5 Act (12 U.S.C. 1818), in the case of—

6 (A) national banks, and Federal branches 

7 and Federal agencies of foreign banks, by the 

8 Office of the Comptroller of the Currency; 

9 (B) member banks of the Federal Reserve 

10 System (other than national banks), branches 

11 and agencies of foreign banks (other than Fed12 eral branches, Federal agencies, and insured 

13 State branches of foreign banks), commercial 

14 lending companies owned or controlled by for15 eign banks, and organizations operating under 

16 section 25 or 25A of the Federal Reserve Act 

17 (12 U.S.C. 601 and 611), by the Board; and 

18 (C) banks insured by the Federal Deposit 

19 Insurance Corporation (other than members of 

20 the Federal Reserve System) and insured State 

21 branches of foreign banks, by the Board of Di22 rectors of the Federal Deposit Insurance Cor23 poration; 

24 (2) section 8 of the Federal Deposit Insurance 

25 Act (12 U.S.C. 1818), by the Director of the Office 
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1 of Thrift Supervision, in the case of a savings asso2 ciation the deposits of which are insured by the Fed3 eral Deposit Insurance Corporation; 

4 (3) the Federal Credit Union Act (12 U.S.C. 

5 1751 et seq.) by the National Credit Union Adminis6 tration Board with respect to any Federal credit 

7 union; 

8 (4) part A of subtitle VII of title 49, United 

9 States Code, by the Secretary of Transportation 

10 with respect to any air carrier or foreign air carrier 

11 subject to that part; 

12 (5) the Packers and Stockyards Act, 1921 (7 

13 U.S.C. 181 et seq.) (except as provided in section 

14 406 of that Act (7 U.S.C. 226, 227)), by the Sec15 retary of Agriculture with respect to any activities 

16 subject to that Act; and 

17 (6) the Farm Credit Act of 1971 (12 U.S.C. 

18 2001 et seq.) by the Farm Credit Administration 

19 with respect to any Federal land bank, Federal land 

20 bank association, Federal intermediate credit bank, 

21 or production credit association. 

22 (c) EXERCISE OF CERTAIN POWERS.—For the pur23 pose of the exercise by any agency referred to in sub24 section (b) of its powers under any Act referred to in that 

25 subsection, a violation of section 3 of this Act I is deemed 
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1 to be a violation of a requirement imposed under that Act. 

2 In addition to its powers under any provision of law spe3 cifically referred to in subsection (b), each of the agencies 

4 referred to in that subsection may exercise, for the pur5 pose of enforcing compliance with any requirement im6 posed under section 3 of this Act, any other authority con7 ferred on it by law. 

8 (d) ACTIONS BY THE COMMISSION.—The Commis9 sion shall prevent any person from violating section 3 of 

10 this Act in the same manner, by the same means, and 

11 with the same jurisdiction, powers, and duties as though 

12 all applicable terms and provisions of the Federal Trade 

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

14 into and made a part of this Act. Any entity that violates 

15 any provision of that section is subject to the penalties 

16 and entitled to the privileges and immunities provided in 

17 the Federal Trade Commission Act in the same manner, 

18 by the same means, and with the same jurisdiction, power, 

19 and duties as though all applicable terms and provisions 

20 of the Federal Trade Commission Act were incorporated 

21 into and made a part of that section. 

22 (e) PRESERVATION OF COMMISSION AUTHORITY.—

23 Nothing contained in this section shall be construed to 

24 limit the authority of the Commission under any other 

25 provision of law.
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1 SEC. 5. ACTIONS BY STATES. 

2 (a) IN GENERAL.—

3 (1) CIVIL ACTIONS.—In any case in which the 

4 attorney general of a State has reason to believe 

5 that an interest of the residents of that State has 

6 been or is threatened or adversely affected by the 

7 engagement of any person in a practice that section 

8 3 of this Act, the State, as parens patriae, may 

9 bring a civil action on behalf of the residents of the 

10 State in a district court of the United States of ap11 propriate jurisdiction—

12 (A) to enjoin that practice; 

13 (B) to enforce compliance with the rule; 

14 (C) to obtain damage, restitution, or other 

15 compensation on behalf of residents of the 

16 State; or 

17 (D) to obtain such other relief as the court 

18 may consider to be appropriate. 

19 (2) NOTICE.— 

20 (A) IN GENERAL.—Before filing an action 

21 under paragraph (1), the attorney general of

22 the State involved shall provide to the Commis23 sion—

24 (i) written notice of that action; and 

25 (ii) a copy of the complaint for that 

26 action. 
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1 (B) EXEMPTION.— 

2 (i) IN GENERAL.—Subparagraph (A) 

3 shall not apply with respect to the filing of 

4 an action by an attorney general of a State 

5 under this subsection, if the attorney gen6 eral determines that it is not feasible to 

7 provide the notice described in that sub8 paragraph before the filing of the action. 

9 (ii) NOTIFICATION.—In an action de10 scribed in clause (i), the attorney general 

11 of a State shall provide notice and a copy 

12 of the complaint to the Commission at the 

13 same time as the attorney general files the 

14 action. 

15 (b) INTERVENTION.— 

16 (1) IN GENERAL.—On receiving notice under 

17 subsection (a)(2), the Commission shall have the 

18 right to intervene in the action that is the subject 

19 of the notice. 

20 (2) EFFECT OF INTERVENTION.—If the Com21 mission intervenes in an action under subsection (a), 

22 it shall have the right—

23 (A) to be heard with respect to any matter 

24 that arises in that action; and 

25 (B) to file a petition for appeal. 
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1 (c) CONSTRUCTION.—For purposes of bringing any 

2 civil action under subsection (a), nothing in this subtitle 

3 shall be construed to prevent an attorney general of a 

4 State from exercising the powers conferred on the attorney 

5 general by the laws of that State to— 

6 (1) conduct investigations; 

7 (2) administer oaths or affirmations; or 

8 (3) compel the attendance of witnesses or the 

9 production of documentary and other evidence. 

10 (d) ACTIONS BY THE COMMISSION.—In any case 

11 in which an action is instituted by or on behalf of the 

12 Commission for violation of section 2 of this Act, no 

13 State may, during the pendency of that action, institute 

14 an action under subsection (a) against any defendant 

15 named in the complaint in that action for violation of 

16 that section. 

17 (e) VENUE; SERVICE OF PROCESS.— 

18 (1) VENUE.—Any action brought under sub19 section (a) may be brought in the district court of 

20 the United States that meets applicable require21 ments relating to venue under section 1391 of title 

22 28, United States Code. 

23 (2) SERVICE OF PROCESS.—In an action 

24 brought under subsection (a), process may be served 

25 in any district in which the defendant—
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1 (A) is an inhabitant; or 

2 (B) may be found. 

3 SEC. 6. DEFINITIONS. 

4 In this Act: 

5 (1) CHILD.—The term ‘‘child’’ means an indi6 vidual under the age of 16. 

7 (2) COMMISSION.—The term ‘‘Commission’’ 

8 means the Federal Trade Commission. 

9 (3) EXPRESS CONSENT.—

10 (A) IN GENERAL.—The term ‘‘express con11 sent’’ means an affirmative indication of per12 mission in writing or electronic form. The term 

13 ‘‘express consent’’ does not include consent in14 ferred from a failure to indicate affirmatively 

15 that consent is denied or withheld. 

16 (B) PREREQUISITES.—Express consent is 

17 not valid unless—

18 (i) before granting the consent the in19 dividual granting the consent was informed 

20 of the purpose for which the information 

21 would be sold, purchased, or used; and 

22 (ii) consent was not granted as a con23 dition for making a product, service, or 

24 warranty available to the individual or the 

25 child to which the information pertains. 
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1 (4) MARKETING.—The term ‘‘marketing’’ 

2 means making a communication to encourage the 

3 purchase or use of a commercial product or service. 

4 For purposes of this paragraph, a product or service 

5 shall be considered to be commercial if some or all 

6 of the proceeds from the sale inure to the benefit of 

7 an enterprise conducted for profit. 

8 (5) PARENT.—The term ‘‘parent’’ includes a 

9 legal guardian. 

10 (6) PERSONAL INFORMATION.—The term ‘‘per11 sonal information’’ means identifiable information 

12 about an individual, including—

13 (A) a name; 

14 (B) a home or other physical address in15 cluding street name and name of a city or town; 

16 (C) an e-mail address or online username; 

17 (D) a telephone number; 

18 (E) a Social Security number; or 

19 (F) any other information that permits a 

20 specific individual to be identified. 

21 (7) PURCHASE; SELL; SALE.—In section 3, the 

22 terms ‘‘purchase’’, ‘‘sell’’, and ‘‘sale’’ include the 

23 purchase and sale of the right to use personal infor24 mation, without regard to whether—

25 (A) the right is limited or unlimited; 
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1 (B) the transaction is characterized as a 

2 purchase, sale, lease, or otherwise; and 

3 (C) the consideration for the transaction is 

4 monetary, goods, or services. 

5 SEC. 7. EFFECTIVE DATE. 

6 This Act takes effect 6 months after the date of en7 actment.

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