I 

108TH CONGRESS 

2D SESSION H. R. 4955

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

personally identifiable information for commercial marketing purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 22, 2004

Ms. HOOLEY of Oregon introduced the following bill; which was referred to 

the Committee on Energy and Commerce 

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 Congress finds the following: 

8 (1) Commercial list brokers routinely advertise 

9 and sell detailed information on children, including 

10 names, addresses, ages, and other data, for use in 
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1 marketing. This data is commonly available on chil2 dren as young as two years old, enabling marketers 

3 to target specific demographics such as junior high 

4 school, elementary school, or even preschool. 

5 (2) Commercially available marketing databases 

6 can be very large, covering millions of children. 

7 (3) Commercially available marketing databases 

8 can include a variety of information on the children 

9 they cover, from ethnicity to family income to hob10 bies and interests. 

11 (4) Money spent on marketing to children has 

12 been estimated at $12 billion per year. 

13 (5) Several Federal statutes, including section 

14 1061 of the No Child Left Behind Act, the Chil15 dren’s Online Privacy Protection Act, and the Fam16 ily and Educational Rights and Privacy Act, restrict 

17 the collection and disclosure of information about 

18 children or students under specified circumstances. 

19 When data on children is collected in a manner that 

20 is outside the scope of those statutes, however, Fed21 eral law does not significantly restrict the commer22 cial sale or resale of such data. 

23 (6) The ability to sell information about chil24 dren to marketers for a profit creates an economic 

25 incentive to find new and creative ways to collect 
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1 and compile such information, and possibly to cir2 cumvent or subvert the intent of those federal stat3 utes that do govern the collection of information 

4 about children or students. There are a variety of 

5 means and sources that marketers and list brokers 

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

7 other data about children. 

8 SEC. 3. RESTRICTION ON SALE OR PURCHASE OF CHIL9 DREN’S PERSONAL INFORMATION. 

10 (a) IN GENERAL.—It is unlawful—

11 (1) to sell personal information about an indi12 vidual the seller knows to be a child; 

13 (2) to purchase personal information about an 

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

15 purpose of marketing to that child; or 

16 (3) for a person who has provided a certifi17 cation pursuant to subsection (b)(2), in connection 

18 with the purchase of personal information about an 

19 individual identified by the seller as a child, to en20 gage in any practice that violates the terms of the 

21 certification. 

22 (b) EXCEPTIONS.—

23 (1) PARENTAL CONSENT.—Subsection (a) shall 

24 not apply to any sale, purchase, or use of personal 

25 information about a child if the parent of the child 
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1 has granted express consent to that sale, purchase, 

2 or use of the information. 

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

4 not apply to the sale of personal information about 

5 a child if the purchaser certifies to the seller, elec6 tronically or in writing, before the sale is com7 pleted—

8 (A) the purpose for which the information 

9 will be used by the purchaser; and 

10 (B) that the purchaser will neither—

11 (i) use the information for marketing 

12 that child; nor 

13 (ii) permit the information to be used 

14 by others for the purpose of marketing to 

15 that child. 

16 SEC. 4. ADMINISTRATION AND ENFORCEMENT. 

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

18 (b), this Act shall be enforced by the Federal Trade Com19 mission as if the violation of section 3 of this Act were 

20 an unfair or deceptive act or practice proscribed under sec21 tion 18(a)(1)(B) of the Federal Trade Commission Act 

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

23 (b) ENFORCEMENT BY CERTAIN OTHER AGEN24 CIES.—Compliance with this Act shall be enforced 

25 under—
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1 (1) section 8 of the Federal Deposit Insurance 

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

3 (A) national banks, and Federal branches 

4 and Federal agencies of foreign banks, by the 

5 Office of the Comptroller of the Currency; 

6 (B) member banks of the Federal Reserve 

7 System (other than national banks), branches 

8 and agencies of foreign banks (other than Fed9 eral branches, Federal agencies, and insured 

10 State branches of foreign banks), commercial 

11 lending companies owned or controlled by for12 eign banks, and organizations operating under 

13 section 25 or 25A of the Federal Reserve Act 

14 (12 U.S.C. 601 and 611), by the Board; and 

15 (C) banks insured by the Federal Deposit 

16 Insurance Corporation (other than members of 

17 the Federal Reserve System) and insured State 

18 branches of foreign banks, by the Board of Di19 rectors of the Federal Deposit Insurance Cor20 poration; 

21 (2) section 8 of the Federal Deposit Insurance 

22 Act (12 U.S.C. 1818), by the Director of the Office 

23 of Thrift Supervision, in the case of a savings asso24 ciation the deposits of which are insured by the Fed25 eral Deposit Insurance Corporation; 
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1 (3) the Federal Credit Union Act (12 U.S.C. 

2 1751 et seq.) by the National Credit Union Adminis3 tration Board with respect to any Federal credit 

4 union; 

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

6 States Code, by the Secretary of Transportation 

7 with respect to any air carrier or foreign air carrier 

8 subject to that part; 

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

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

11 406 of that Act (7 U.S.C. 226, 227)), by the Sec12 retary of Agriculture with respect to any activities 

13 subject to that Act; and 

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

15 2001 et seq.) by the Farm Credit Administration 

16 with respect to any Federal land bank, Federal land 

17 bank association, Federal intermediate credit bank, 

18 or production credit association. 

19 (c) EXERCISE OF CERTAIN POWERS.—For the pur20 pose of the exercise by any agency referred to in sub21 section (b) of its powers under any Act referred to in that 

22 subsection, a violation of section 3 of this Act is deemed 

23 to be a violation of a requirement imposed under that Act. 

24 In addition to its powers under any provision of law spe25 cifically referred to in subsection (b), each of the agencies 
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1 referred to in that subsection may exercise, for the pur2 pose of enforcing compliance with any requirement im3 posed under section 3 of this Act, any other authority con4 ferred on it by law. 

5 (d) ACTIONS BY THE COMMISSION.—The Commis6 sion shall prevent any person from violating section 3 of 

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

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

9 all applicable terms and provisions of the Federal Trade 

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

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

12 any provision of that section is subject to the penalties 

13 and entitled to the privileges and immunities provided in 

14 the Federal Trade Commission Act in the same manner, 

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

16 and duties as though all applicable terms and provisions 

17 of the Federal Trade Commission Act were incorporated 

18 into and made a part of that section. 

19 (e) PRESERVATION OF COMMISSION AUTHORITY.—

20 Nothing contained in this section shall be construed to 

21 limit the authority of the Commission under any other 

22 provision of law. 

23 SEC. 5. ACTIONS BY STATES. 

24 (a) IN GENERAL.—
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1 (1) CIVIL ACTIONS.—In any case in which the 

2 attorney general of a State has reason to believe 

3 that an interest of the residents of that State has 

4 been or is threatened or adversely affected by the 

5 engagement of any person in a practice that section 

6 3 of this Act, the State, as parens patriae, may 

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

8 State in a district court of the United States of ap9 propriate jurisdiction—

10 (A) to enjoin that practice; 

11 (B) to enforce compliance with the rule; 

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

13 compensation on behalf of residents of the 

14 State; or 

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

16 may consider to be appropriate. 

17 (2) NOTICE.—

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

19 under paragraph (1), the attorney general of 

20 the State involved shall provide to the Commis21 sion—

22 (i) written notice of that action; and 

23 (ii) a copy of the complaint for that 

24 action. 

25 (B) EXEMPTION.—
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1 (i) IN GENERAL.—Subparagraph (A) 

2 shall not apply with respect to the filing of 

3 an action by an attorney general of a State 

4 under this subsection, if the attorney gen5 eral determines that it is not feasible to 

6 provide the notice described in that sub7 paragraph before the filing of the action. 

8 (ii) NOTIFICATION.—In an action de9 scribed in clause (i), the attorney general 

10 of a State shall provide notice and a copy 

11 of the complaint to the Commission at the 

12 same time as the attorney general files the 

13 action. 

14 (b) INTERVENTION.—

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

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

17 right to intervene in the action that is the subject 

18 of the notice. 

19 (2) EFFECT OF INTERVENTION.—If the Com20 mission intervenes in an action under subsection (a), 

21 it shall have the right—

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

23 that arises in that action; and 

24 (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 in 

11 which an action is instituted by or on behalf of the Com12 mission for violation of section 2 of this Act, no State may, 

13 during the pendency of that action, institute an action 

14 under subsection (a) against any defendant named in the 

15 complaint in that action for violation of that section. 

16 (e) VENUE; SERVICE OF PROCESS.—

17 (1) VENUE.—Any action brought under sub18 section (a) may be brought in the district court of 

19 the United States that meets applicable require20 ments relating to venue under section 1391 of title 

21 28, United States Code. 

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

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

24 in any district in which the defendant—

25 (A) is an inhabitant; or 
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1 (B) may be found. 

2 SEC. 6. DEFINITIONS. 

3 In this Act: 

4 (1) CHILD.—The term ‘‘child’’ means an indi5 vidual under the age of 16. 

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

7 means the Federal Trade Commission. 

8 (3) EXPRESS CONSENT.—

9 (A) IN GENERAL.—The term ‘‘express con10 sent’’ means an affirmative indication of per11 mission in writing or electronic form. The term 

12 ‘‘express consent’’ does not include consent in13 ferred from a failure to indicate affirmatively 

14 that consent is denied or withheld. 

15 (B) PREREQUISITES.—Express consent is 

16 not valid unless—

17 (i) before granting the consent the in18 dividual granting the consent was informed 

19 of the purpose for which the information 

20 would be sold, purchased, or used; and 

21 (ii) consent was not granted as a con22 dition for making a product, service, or 

23 warranty available to the individual or the 

24 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 shall take effect 6 months after the date 

7 of enactment.

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