Banning Surveillance Advertising Act of 2022
Bill: H.R.6416 | Sponsor: Rep. Eshoo, Anna G. (D-CA)
Policy area: Commerce

Summary:
Banning Surveillance Advertising Act of 2022
This bill restricts online advertising that targets an individual, internet-connected device, or group of individuals or devices based on personal information. Personal information includes information that is reasonably linkable to an individual or connected device such as internet browsing history or the content of communications.  The bill generally prohibits (1) online advertisers from using personal information, including personal information that identifies an individual as a member of a specified protected class, to target advertising; and (2) advertising facilitators (i.e., entities that receive compensation for disseminating online advertisements) from using personal information to disseminate targeted advertising or knowingly enabling online advertisers to do so.  The bill allows certain exceptions, including for advertisements disseminated based on (1) content with which an individual is engaging, such as search results, if the advertisement is displayed in close proximity to the individual's engagement with the content; or (2) a state, market area, or other geographic location associated with an individual. Furthermore, an advertising facilitator may use information provided by an advertiser or third party if that advertiser or third party also attests in writing that the information complies with the bill's requirements.  The bill provides for enforcement of these provisions by the Federal Trade Commission, states, and individuals.


To prohibit targeted advertising by advertising facilitators and 
                  advertisers, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Banning Surveillance Advertising Act 
of 2022''.

SEC. 2. PROHIBITION ON TARGETED ADVERTISING.

    (a) Prohibition on Targeting by Advertising Facilitators.--
            (1) In general.--An advertising facilitator may not--
                    (A) target the dissemination of an advertisement; 
                or
                    (B) knowingly enable an advertiser or a third party 
                to target the dissemination of an advertisement, 
                including by providing the advertiser or third party 
                with--
                            (i) a list of individuals or connected 
                        devices;
                            (ii) contact information of an individual;
                            (iii) a unique identifier that may be used 
                        to identify an individual or a connected 
                        device; or
                            (iv) other personal information that can be 
                        used to identify an individual or a connected 
                        device.
            (2) Contextual advertisements.--
                    (A) In general.--For purposes of paragraph (1), an 
                advertising facilitator shall not be considered to 
                target the dissemination of an advertisement, or to 
                knowingly enable an advertiser or third party to target 
                the dissemination of an advertisement, to an individual 
                (or a connected device associated with an individual) 
                if the advertisement--
                            (i) 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
                            (ii) is displayed or otherwise disseminated 
                        in close proximity to information described in 
                        clause (i).
                    (B) Prohibition on further use of information 
                related to the delivery of contextual advertisements.--
                Information collected in connection with the 
                dissemination of an advertisement as described in 
                subparagraph (A) may not be used to target the 
                dissemination of additional advertisements or to 
                knowingly enable an advertiser or third party to target 
                the dissemination of additional advertisements.
            (3) Information provided by or on behalf of advertiser with 
        attestation of compliance.--Paragraph (1) does not apply to the 
        targeting of the dissemination of an advertisement based on 
        information described in clauses (i) through (iv) of 
        subparagraph (B) of such paragraph that is provided to an 
        advertising facilitator by an advertiser or by a third party on 
        behalf of an advertiser, if the advertising facilitator is 
        provided a written attestation that the advertiser is not in 
        violation of subsection (b) with respect to such information.
    (b) Prohibition on Targeting by Advertisers.--An advertiser may not 
target, cause an advertising facilitator to target, or knowingly enable 
a third party to target or cause an advertising facilitator to target, 
the dissemination of an advertisement (including by providing any 
information described in clauses (i) through (iv) of subsection 
(a)(1)(B)) based on personal information--
            (1) that the advertiser has purchased or otherwise obtained 
        from another person (other than an individual to whom the 
        personal information pertains); or
            (2) that--
                    (A) identifies an individual as a member of a 
                protected class; or
                    (B) is known or should reasonably be known by the 
                advertiser to act as a reasonable proxy for identifying 
                an individual as a member of a protected class.
    (c) Exception for Targeting Based on Recognized Place.--For 
purposes of this section, the dissemination of an advertisement shall 
not be considered to be targeted to an individual, connected device, or 
group of individuals or connected devices based on a recognized place 
associated with the individual, connected device, or group of 
individuals or connected devices.

SEC. 3. ENFORCEMENT.

    (a) Federal Trade Commission.--
            (1) Unfair or deceptive acts or practices.--A violation of 
        this Act or a regulation promulgated under this Act shall be 
        treated as a violation of a rule defining an unfair or 
        deceptive act or practice under section 18(a)(1)(B) of the 
        Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
            (2) Powers of the commission.--
                    (A) In general.--Except as provided in subparagraph 
                (B) and paragraph (3)--
                            (i) the Commission shall enforce this Act 
                        and the regulations promulgated under this Act 
                        in the same manner, by the same means, and with 
                        the same jurisdiction, powers, and duties as 
                        though all applicable terms and provisions of 
                        the Federal Trade Commission Act (15 U.S.C. 41 
                        et seq.) were incorporated into and made a part 
                        of this Act; and
                            (ii) any person who violates this Act or a 
                        regulation promulgated under this Act shall be 
                        subject to the penalties and entitled to the 
                        privileges and immunities provided in the 
                        Federal Trade Commission Act.
                    (B) Exclusive litigation authority.--
                Notwithstanding section 16(a) of the Federal Trade 
                Commission Act (15 U.S.C. 56(a)), the Commission shall 
                have exclusive authority to commence or defend, and 
                supervise the litigation of, any action for a violation 
                of this Act or a regulation promulgated under this Act, 
                and any appeal of such action, in its own name by any 
                of its attorneys designated by it for such purpose, 
                without first referring the matter to the Attorney 
                General.
            (3) Common carriers and nonprofit organizations.--
        Notwithstanding section 4, 5(a)(2), or 6 of the Federal Trade 
        Commission Act (15 U.S.C. 44; 45(a)(2); 46) or any 
        jurisdictional limitation of the Commission, the Commission 
        shall also enforce this Act and the regulations promulgated 
        under this Act, in the same manner provided in paragraphs (1) 
        and (2), with respect to--
                    (A) common carriers subject to the Communications 
                Act of 1934 (47 U.S.C. 151 et seq.) and all Acts 
                amendatory thereof and supplementary thereto; and
                    (B) organizations not organized to carry on 
                business for their own profit or that of their members.
            (4) Rulemaking authority.--The Commission may promulgate, 
        under section 553 of title 5, United States Code, any 
        regulations necessary to implement this Act.
            (5) Savings clause.--Nothing in this Act shall be construed 
        to limit the authority of the Commission under any other 
        provision of law.
    (b) Enforcement by States.--
            (1) In general.--In any case in which the attorney general 
        of a State has reason to believe that an interest of the 
        residents of the State has been or is threatened or adversely 
        affected by an act or practice in violation of this Act or a 
        regulation promulgated under this Act, the attorney general of 
        the State may, as parens patriae, bring a civil action on 
        behalf of the residents of the State in an appropriate district 
        court of the United States or an appropriate State court to 
        obtain appropriate relief.
            (2) Rights of the commission.--
                    (A) Notice to the commission.--
                            (i) In general.--Except as provided in 
                        clause (iii), the attorney general of a State 
                        shall notify the Commission in writing that the 
                        attorney general intends to bring a civil 
                        action under paragraph (1) before initiating 
                        the civil action.
                            (ii) Contents.--The notification required 
                        by clause (i) with respect to a civil action 
                        shall include a copy of the complaint to be 
                        filed to initiate the civil action.
                            (iii) Exception.--If it is not feasible for 
                        the attorney general of a State to provide the 
                        notification required by clause (i) before 
                        initiating a civil action under paragraph (1), 
                        the attorney general shall notify the 
                        Commission immediately upon instituting the 
                        civil action.
                    (B) Intervention by the commission.--The Commission 
                may--
                            (i) intervene in any civil action brought 
                        by the attorney general of a State under 
                        paragraph (1); and
                            (ii) upon intervening--
                                    (I) remove the civil action to the 
                                appropriate district court of the 
                                United States, if the action was not 
                                originally brought in such court;
                                    (II) be heard on all matters 
                                arising in the civil action; and
                                    (III) file petitions for appeal of 
                                a decision in the civil action.
                    (C) Investigatory powers.--Nothing in this 
                subsection may be construed to prevent the attorney 
                general of a State from exercising the powers conferred 
                on the attorney general by the laws of the State to 
                conduct investigations, to administer oaths or 
                affirmations, or to compel the attendance of witnesses 
                or the production of documentary or other evidence.
            (3) Action by the commission.--If the Commission institutes 
        a civil action with respect to a violation of this Act or a 
        regulation promulgated under this Act, the attorney general of 
        a State may not, during the pendency of such action, bring a 
        civil action under paragraph (1) against any defendant named in 
        the complaint of the Commission for the violation with respect 
        to which the Commission instituted such action.
            (4) Actions by other state officials.--
                    (A) In general.--In addition to civil actions 
                brought by attorneys general under paragraph (1), any 
                other officer of a State who is authorized by the State 
                to do so may bring a civil action under such paragraph, 
                subject to the same requirements and limitations that 
                apply under this subsection to civil actions brought by 
                attorneys general.
                    (B) Savings provision.--Nothing in this subsection 
                may be construed to prohibit an attorney general or 
                authorized official of a State from initiating or 
                continuing any proceeding in a court of the State for a 
                violation of any civil or criminal law of the State.
    (c) Private Right of Action.--
            (1) Enforcement by individuals.--
                    (A) In general.--Any individual alleging a 
                violation of this Act or a regulation promulgated under 
                this Act may bring a civil action in any Federal or 
                State court of competent jurisdiction.
                    (B) Relief.--In a civil action brought under 
                subparagraph (A) in which the plaintiff prevails, the 
                court may award--
                            (i) an amount equal to--
                                    (I) in the case of a negligent 
                                violation, not less than $100 and not 
                                greater than $1,000 per violation; or
                                    (II) in the case of a reckless, 
                                knowing, willful, or intentional 
                                violation, not less than $500 and not 
                                greater than $5,000 per violation;
                            (ii) reasonable attorney's fees and 
                        litigation costs; and
                            (iii) any other relief, including equitable 
                        or declaratory relief, that the court 
                        determines appropriate.
                    (C) Injury in fact.--A violation of this Act or a 
                regulation promulgated under this Act with respect to 
                the personal information of an individual constitutes a 
                concrete and particularized injury in fact to that 
                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.
                    (B) Applicability.--Any determination as to whether 
                or how this paragraph 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.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Advertisement.--The term ``advertisement'' means 
        information provided by an advertiser to an advertising 
        facilitator that the advertising facilitator, in exchange for 
        monetary consideration or another thing of value, disseminates 
        to an individual, connected device, or group of individuals or 
        connected devices.
            (2) Advertiser.--
                    (A) In general.--The term ``advertiser'' means a 
                person to the extent such person, directly or 
                indirectly, provides an advertising facilitator with 
                monetary consideration or another thing of value for 
                the dissemination of an advertisement to an individual, 
                connected device, or group of individuals or connected 
                devices.
                    (B) Exclusion.--The term ``advertiser'' does not 
                include a natural person, except to the extent such 
                person is engaged in a commercial activity that is more 
                than de minimis.
            (3) Advertising facilitator.--
                    (A) In general.--The term ``advertising 
                facilitator'' means a person to the extent such 
                person--
                            (i) receives monetary consideration or 
                        another thing of value to disseminate an 
                        advertisement to an individual, connected 
                        device, or group of individuals or connected 
                        devices; and
                            (ii) collects or processes personal 
                        information with respect to the dissemination 
                        of the advertisement.
                    (B) Exclusion.--The term ``advertising 
                facilitator'' does not include a natural person, except 
                to the extent such person is engaged in a commercial 
                activity that is more than de minimis.
            (4) Collect.--The term ``collect'' means, with respect to 
        personal information, to obtain such information in any manner, 
        except when solely transmitting, routing, providing 
        intermediate storage for, or providing connections for such 
        information through a system or network.
            (5) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (6) Connected device.--The term ``connected device'' means 
        any electronic equipment that is--
                    (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.
            (7) Contents.--The term ``contents'', when used with 
        respect to any communication, has the meaning given such term 
        in section 2510 of title 18, United States Code.
            (8) Dispute.--The term ``dispute'' means any claim by an 
        individual that a person has violated this Act or the 
        regulations promulgated under this Act.
            (9) Disseminate.--The term ``disseminate'' means, with 
        respect to an advertisement, to transmit, display, or otherwise 
        disseminate the advertisement electronically or through 
        communication by wire or radio.
            (10) Dissemination.--The term ``dissemination'' means, with 
        respect to an advertisement, the transmission, display, or 
        other dissemination of the advertisement electronically or 
        through communication by wire or radio.
            (11) Indian lands.--The term ``Indian lands'' includes--
                    (A) any Indian country of an Indian Tribe (as such 
                term is defined in 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.), by an Indian Tribe that is a Native village (as 
                such term is defined in section 3 of that Act (43 
                U.S.C. 1602)) or by a Village Corporation (as such term 
                is defined in section 3 of that Act (43 U.S.C. 1602)) 
                that is associated with an Indian Tribe; and
                    (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.
            (12) Indian tribe.--The term ``Indian Tribe'' has the 
        meaning given the term ``Indian tribe'' in section 4 of the 
        Indian Self-Determination and Education Assistance Act (25 
        U.S.C. 5304).
            (13) Personal information.--The term ``personal 
        information'' means data linked or reasonably linkable to an 
        individual or connected device, including--
                    (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) a unique identifier used for the purposes of 
                targeting the dissemination of an advertisement.
            (14) Pre-dispute arbitration agreement.--The term ``pre-
        dispute arbitration agreement'' means any agreement to 
        arbitrate a dispute that has not arisen at the time of making 
        the agreement.
            (15) Pre-dispute joint-action waiver.--The term ``pre-
        dispute joint-action waiver'' means an agreement, whether or 
        not part of a pre-dispute arbitration agreement, that would 
        prohibit, or waive the right of, one of the parties to the 
        agreement to participate in a joint, class, or collective 
        action in a judicial, arbitral, administrative, or other forum, 
        concerning a dispute that has not yet arisen at the time of 
        making the agreement.
            (16) Protected class.--The term ``protected class'' means 
        the actual or perceived race, color, ethnicity, national 
        origin, religion, sex (including sexual orientation and gender 
        identity or gender expression), familial status, or disability 
        of an individual or group of individuals.
            (17) Recognized place.--
                    (A) In general.--The term ``recognized place'' 
                means any of the following:
                            (i) A State.
                            (ii) Indian lands.
                            (iii) 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 (as 
                                defined in the most recent glossary of 
                                the Bureau of the Census).
                            (iv) A census designated place (as defined 
                        in the most recent glossary of the Bureau of 
                        the Census).
                            (v) A designated market area (as defined in 
                        section 122(j) of title 17, United States 
                        Code).
                            (vi) A congressional district.
                    (B) Exclusions.--The term ``recognized place'' does 
                not include--
                            (i) a subdivision of any item listed in 
                        subparagraph (A) that is not itself listed in 
                        such subparagraph; or
                            (ii) a ZIP Code.
            (18) State.--The term ``State'' means any State of the 
        United States, the District of Columbia, the Commonwealth of 
        Puerto Rico, the Virgin Islands of the United States, Guam, 
        American Samoa, the Commonwealth of the Northern Mariana 
        Islands, and any possession of the United States.
            (19) Target.--
                    (A) In general.--The term ``target'' means, with 
                respect to the dissemination of an advertisement, to 
                perform or cause to be performed any computational 
                process designed to select an individual, connected 
                device, or group of individuals or connected devices to 
                which to disseminate the advertisement based on 
                personal information pertaining to the individual or 
                connected device or to the individuals or connected 
                devices that make up the group.
                    (B) Exclusions.--The term ``target'' does not 
                include, with respect to the dissemination of an 
                advertisement, the performance or causing the 
                performance of any computational process undertaken 
                solely for transmitting, routing, providing 
                intermediate storage for, or providing connections for 
                the advertisement through a system or network.
            (20) Third party.--The term ``third party'' includes, with 
        respect to an advertiser or an advertising facilitator, a 
        subsidiary, a corporate affiliate, or other related party of 
        the advertiser or advertising facilitator.
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