Banning Microtargeted Political Ads Act of 2021

To amend the Federal Election Campaign Act of 1971 to prohibit covered online platforms from disseminating political advertisements which are targeted to an individual, a connected device, or to a group of individuals or connected devices on any basis other than the recognized place in which the individual resides or the device is located, and for other purposes. 1. Short title This Act may be cited as the Banning Microtargeted Political Ads Act of 2021 2. Restrictions on dissemination of targeted political advertisements by online platforms (a) Restrictions (1) In general Title III of the Federal Election Campaign Act of 1971 ( 52 U.S.C. 30101 et seq. 325. Restrictions on dissemination of targeted political advertisements by online platforms (a) Restrictions on advertisements targeted at individuals or at specific groups of individuals A covered online platform, a sponsor of a political advertisement, or an agent, affiliate, vendor, or other person acting on behalf of such a platform or sponsor may not— (1) target the dissemination of a political advertisement on a covered online platform to an individual, a connected device, or to a group of individuals or connected devices; or (2) knowingly enable a third party to target the dissemination of a political advertisement, including by providing the third party a list of individuals or connected devices, contact information of individuals, or other personal information that can be used to identify individuals or connected devices. (b) Exceptions (1) Targeting within recognized place Subsection (a) does not apply to the targeting of the dissemination of a political advertisement to an individual residing in, or to connected devices located in, a recognized place. (2) Targeting to individuals giving express consent Subsection (a) does not apply to the targeting of the dissemination of a political advertisement to an individual if— (A) the individual has provided freely given, express, specific, informed, and unambiguous consent directly to the sponsor— (i) to be an individual to whom the dissemination of a political advertisement is targeted by the sponsor; and (ii) to allow the sponsor to disclose personal information pertaining to the individual to another person for the purpose of advertising; (B) such consent is revocable and was not received through or by the aid of the sponsor or the covered online platform; and (C) the sponsor and any agent, affiliate, vendor, or other person disseminating a political advertisement on behalf of the sponsor, does not use personal information generated by or pertaining to the individual except information that was expressly and affirmatively provided by the individual directly to the sponsor. (3) Contextual advertising Subsection (a) does not apply to the targeting of the dissemination of a political advertisement to an individual if the political advertisement— (A) is disseminated based on information— (i) that the individual is viewing or with which the individual is otherwise engaging; or (ii) for which the individual searched; and (B) is displayed or otherwise disseminated in close proximity to information described in subparagraph (A). (4) Targeting on random basis Subsection (a) does not apply to the targeting of the dissemination of a political advertisement to an individual on a random basis, including on a random basis within any of the exceptions described in this subsection. (5) Rule of construction Nothing in this subsection shall be construed to require a covered online platform, a sponsor of a political advertisement, or an agent, affiliate, vendor, or other person acting on behalf of the platform or the sponsor to disseminate a political advertisement to an individual who has opted out of receiving a political advertisement or any other form of communication from the platform, the sponsor, or any agent, affiliate, vendor, or other person acting on behalf of the platform or the sponsor, including opting out of receiving a specific type of advertisement or communication, an advertisement or communication from a particular sponsor, or any other opt-out preference. (c) Private right of action (1) Enforcement by individuals (A) In general Any individual alleging a violation of this section by a covered online platform or an agent, affiliate, vendor, or other person acting on behalf of a covered online platform may bring a civil action in any court of competent jurisdiction, State or Federal. (B) Relief In a civil action brought under paragraph (1) in which the plaintiff prevails, the court may award— (i) an amount— (I) not less than $100 and not greater than $1,000 per violation against any person who negligently violates a provision of this section; and (II) not less than $500 and not greater than $5,000 per violation against any person who recklessly, willfully, or intentionally violates a provision of this section; (ii) disgorgement or compensation for unjust enrichment; (iii) reasonable attorney’s fees and litigation costs; and (iv) any other relief, including equitable or declaratory relief, that the court determines appropriate. (C) Injury in fact A violation of this section constitutes a concrete and particularized injury in fact to an individual. (2) Invalidity of pre-dispute arbitration agreements and pre-dispute joint action waivers (A) In general Notwithstanding any other provision of law, no pre-dispute arbitration agreement or pre-dispute joint action waiver shall be valid or enforceable with respect to a dispute arising under this section. (B) Applicability Any determination as to whether or how this subsection applies to any dispute shall be made by a court, rather than an arbitrator, without regard to whether such agreement purports to delegate such determination to an arbitrator. (3) No effect on enforcement by Commission The authority of an individual to bring a civil action under this subsection shall not be construed to affect any authority of the Commission to take any action under this Act with respect to an allegation of a violation of this section. (d) Definitions In this section, the following definitions apply: (1) Connected device The term connected device (A) primarily designed for or marketed to consumers; (B) capable of connecting to the internet or another communication network; and (C) capable of sending, receiving, or processing personal information. (2) Contents The term contents (3) Covered online platform The term covered online platform (4) Dispute The term dispute (5) Disseminate The term disseminate (6) Dissemination The term dissemination (7) Indian lands The term Indian lands (A) any Indian country of an Indian Tribe, as defined under section 1151 of title 18, United States Code; (B) any land in Alaska owned, pursuant to the Alaska Native Claims Settlement Act ( 43 U.S.C. 1601 et seq. 43 U.S.C. 1602 43 U.S.C. 1602 (C) any land that is part or all of a Tribal designated statistical area associated with an Indian Tribe, or is part or all of an Alaska Native village statistical area associated with an Indian Tribe, as defined by the Bureau of the Census for the purposes of the most recent decennial census. (8) Indian Tribe The term Indian Tribe Indian tribe 25 U.S.C. 5304 (9) Personal information The term personal information (A) data inferred or derived about the individual or connected device from other collected data, if such data is still linked or reasonably linkable to the individual or connected device; (B) contents of communications; (C) internet browsing history and online activity; and (D) an identifier used to assign an individual to a group for the purposes of targeting the dissemination of an advertisement. (10) Political advertisement The term political advertisement (A) an electioneering communication (as defined in section 304(f)(3)); (B) a communication expressly advocating the election or defeat of a clearly identified candidate for election for Federal office, or which is the functional equivalent of express advocacy because, when taken as a whole, it can be susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate for election for Federal office; (C) a paid public communication or a public communication promoted for payment that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate); or (D) any advertisement (including search engine marketing, display advertisements, video advertisements, native advertisements, and sponsorships) that is made by or on behalf of a candidate. (11) Pre-dispute arbitration agreement The term pre-dispute arbitration agreement (12) Pre-dispute joint-action waiver The term pre-dispute joint-action waiver (13) Recognized place The term recognized place (A) A State. (B) Indian lands. (C) A county, municipality, city, town, township, village, borough, or similar unit of general government that is— (i) incorporated pursuant to a State law; or (ii) an incorporated place (D) A census designated place (E) A congressional district. (F) A designated market area (as defined in section 122(j) of title 17, United States Code). (14) State The term State (15) Target The term target (16) Third party The term third party . (2) Effective date The amendment made by paragraph (1) shall take effect 3 months after the date of the enactment of this Act. (b) Expansion of definition of electioneering communication (1) Expansion to online communications (A) Application to qualified Internet and digital communications (i) In general Subparagraph (A) of section 304(f)(3) of the Federal Election Campaign Act of 1971 ( 52 U.S.C. 30104(f)(3)(A) or satellite communication satellite, or qualified internet or digital communication (ii) Qualified Internet or digital communication Paragraph (3) of section 304(f) of such Act ( 52 U.S.C. 30104(f) (D) Qualified Internet or digital communication The term qualified internet or digital communication . (B) Nonapplication of relevant electorate to online communications Section 304(f)(3)(A)(i)(III) of such Act ( 52 U.S.C. 30104(f)(3)(A)(i)(III) any broadcast, cable, or satellite communication (C) News exemption Section 304(f)(3)(B)(i) of such Act ( 52 U.S.C. 30104(f)(3)(B)(i) (i) a communication appearing in a bona fide news story, commentary, or editorial distributed through the facilities of any broadcasting station or any online or digital newspaper, magazine, blog, publication, or periodical, unless such broadcasting, online, or digital facilities are owned or controlled by any political party, political committee, or candidate; . (2) Expansion of definition of public communication Paragraph (22) of section 301 of the Federal Election Campaign Act of 1971 ( 52 U.S.C. 30101(22) or satellite communication satellite, paid internet, or paid digital communication, paid promotion (3) Effective date The amendments made by this subsection shall apply with respect to communications made on or after the expiration of the 3-month period which begins on the date of the enactment of this Act. (c) Severability If any provision of this Act or the amendments made by this Act, or the application thereof, is held unconstitutional or otherwise invalid, the validity of the remainder of the Act, the amendments, and the application of such provision shall not be affected thereby.

Summary: Banning Microtargeted Political Ads Act of 2021 This bill generally prohibits online platforms (e.g., websites, mobile applications, and social networks) from disseminating political advertisements that are targeted to an individual, a connected device, or a group of individuals or connected devices based on personal information that is linked to an individual or device. The prohibition does not apply to a political advertisement that is targeted to (1) an individual or device within a recognized place (e.g., states, Indian lands, and congressional districts), (2) an individual who gives express consent for the political advertisement, (3) an individual who is searching for the information, or (4) an individual on a random basis. Additionally, the bill establishes a private right of action with respect to the prohibition. Further, pre-dispute arbitration agreements and pre-dispute joint-action waivers are unenforceable with respect to a dispute arising from the prohibition. The bill expands the definition of electioneering communication to include certain internet or digital communication that is placed or promoted on an online platform for a fee and also expands the exception to this definition for news. Further, it broadens the definition of public communication to include a communication by means of any paid internet, paid digital communication, or paid promotion.