Banning Microtargeted Political Ads Act of 2021
Bill: H.R.4955 | Sponsor: Rep. Eshoo, Anna G. (D-CA)
Policy area: Government Operations and Politics

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.

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.

    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 Microtargeted Political Ads 
Act of 2021''.

SEC. 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.) is amended by adding at 
        the end the following new section:

``SEC. 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' 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.
            ``(2) Contents.--The term `contents', when used with 
        respect to any communication, has the meaning given such term 
        in section 2510(8) of title 18, United States Code.
            ``(3) Covered online platform.--The term `covered online 
        platform' means any website, web application, mobile 
        application, connected device application, digital application 
        (including a social network, or search engine), or advertising 
        network (including a network disseminating advertisements on 
        another website, web application, mobile application, connected 
        device application, or digital application) that disseminates 
        political advertisements, except that such term does not 
        include a website, application, or network (or a subsidiary or 
        affiliate of such a website, application, or network) that, 
        during the 12-month period ending on the date of the 
        dissemination of the political advertisement involved, 
        collected or processed personal information relating to fewer 
        than 50,000,000 individuals.
            ``(4) Dispute.--The term `dispute' means any claim related 
        to an alleged violation of this section and between an 
        individual and a covered online platform.
            ``(5) Disseminate.--The term `disseminate' means, with 
        respect to a political advertisement, to transmit, display, or 
        otherwise disseminate the political advertisement.
            ``(6) Dissemination.--The term `dissemination' means, with 
        respect to a political advertisement, the transmission, 
        display, or other dissemination of the political advertisement.
            ``(7) Indian lands.--The term `Indian lands' includes--
                    ``(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.), 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.
            ``(8) 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).
            ``(9) Personal information.--The term `personal 
        information' means data that is linked or reasonably linkable 
        to an individual or a 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) 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' means--
                    ``(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' means any agreement to arbitrate 
        a dispute that has not arisen at the time of making the 
        agreement.
            ``(12) 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, administration, or other forum, 
        concerning a dispute that has not yet arisen at the time of 
        making the agreement.
            ``(13) Recognized place.--The term `recognized place' means 
        any of the following:
                    ``(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' (as such 
                        term is defined in the most recent glossary of 
                        the Bureau of the Census).
                    ``(D) A `census designated place' (as such term is 
                defined in the most recent glossary of the Bureau of 
                the Census).
                    ``(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' 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.
            ``(15) Target.--The term `target' means, with respect to 
        the dissemination of a political 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 political 
        advertisement based on personal information pertaining to the 
        individual or connected device or to the individuals or 
        connected devices that make up the group.
            ``(16) Third party.--The term `third party' includes, with 
        respect to a covered platform, a corporate affiliate or other 
        related party of the covered platform.''.
            (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)) 
                        is amended by striking ``or satellite 
                        communication'' each place it appears in 
                        clauses (i) and (ii) and inserting ``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)) is amended by 
                        adding at the end the following new 
                        subparagraph:
                    ``(D) Qualified internet or digital 
                communication.--The term `qualified internet or digital 
                communication' means any communication which is placed 
                or promoted for a fee on a covered online platform (as 
                defined in section 325(d)(3)).''.
                    (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)) is amended by 
                inserting ``any broadcast, cable, or satellite'' before 
                ``communication''.
                    (C) News exemption.--Section 304(f)(3)(B)(i) of 
                such Act (52 U.S.C. 30104(f)(3)(B)(i)) is amended to 
                read as follows:
                            ``(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)) is amended by striking ``or 
        satellite communication'' and inserting ``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.
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