[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2160 Introduced in Senate (IS)]
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.
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 ``Children's Listbroker Privacy Act''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Commercial list brokers routinely advertise and sell
detailed information on children, including names, addresses,
ages, and other data, for use in marketing. This data is
commonly available on children as young as two years old,
enabling marketers to target specific demographics such as
junior high school, elementary school, or even preschool.
(2) Commercially available marketing databases can be very
large, covering millions of children.
(3) Commercially available marketing databases can include
a variety of information on the children they cover, from
ethnicity to family income to hobbies and interests.
(4) Money spent on marketing to children has been estimated
at $12 billion per year.
(5) Several Federal statutes, including section 1061 of the
No Child Left Behind Act, the Children's Online Privacy
Protection Act, and the Family and Educational Rights and
Privacy Act, restrict the collection and disclosure of
information about children or students under specified
circumstances. When data on children is collected in a manner
that is outside the scope of those statutes, however, Federal
law does not significantly restrict the commercial sale or
resale of such data.
(6) The ability to sell information about children to
marketers for a profit creates an economic incentive to find
new and creative ways to collect and compile such information,
and possibly to circumvent or subvert the intent of those
federal statutes that do govern the collection of information
about children or students. There are a variety of means and
sources that marketers and list brokers can and do use to
compile names, addresses, and other data about children.
SEC. 3. RESTRICTION ON SALE OR PURCHASE OF CHILDREN'S PERSONAL
INFORMATION.
(a) In General.--It is unlawful--
(1) to sell personal information about an individual the
seller knows to be a child;
(2) to purchase personal information about an individual
identified by the seller as a child, for the purpose of
marketing to that child; or
(3) for a person who has provided a certification pursuant
to subsection (b)(2), in connection with the purchase of
personal information about an individual identified by the
seller as a child, to engage in any practice that violates the
terms of the certification.
(b) Exceptions.--
(1) Parental consent.--Subsection (a) does not apply to any
sale, purchase, or use of personal information about a child if
the parent of the child has granted express consent to that
sale, purchase, or use of the information.
(2) Certification.--Subsection (a)(1) shall not apply to
the sale of personal information about a child if the purchaser
certifies to the seller, electronically or in writing, before
the sale is completed--
(A) the purpose for which the information will be
used by the purchaser; and
(B) that the purchaser will neither--
(i) use the information for marketing that
child; nor
(ii) permit the information to be used by
others for the purpose of marketing to that
child.
SEC. 4. ADMINISTRATION AND ENFORCEMENT.
(a) In General.--Except as provided in subsection (b), this Act
shall be enforced by the Commission as if the violation of section 3 of
this Act were an unfair or deceptive act or practice proscribed under
section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C.
57a(a)(1)(B)).
(b) Enforcement by Certain Other Agencies.--Compliance with this
Act shall be enforced under--
(1) section 8 of the Federal Deposit Insurance Act (12
U.S.C. 1818), in the case of--
(A) national banks, and Federal branches and
Federal agencies of foreign banks, by the Office of the
Comptroller of the Currency;
(B) member banks of the Federal Reserve System
(other than national banks), branches and agencies of
foreign banks (other than Federal branches, Federal
agencies, and insured State branches of foreign banks),
commercial lending companies owned or controlled by
foreign banks, and organizations operating under
section 25 or 25A of the Federal Reserve Act (12 U.S.C.
601 and 611), by the Board; and
(C) banks insured by the Federal Deposit Insurance
Corporation (other than members of the Federal Reserve
System) and insured State branches of foreign banks, by
the Board of Directors of the Federal Deposit Insurance
Corporation;
(2) section 8 of the Federal Deposit Insurance Act (12
U.S.C. 1818), by the Director of the Office of Thrift
Supervision, in the case of a savings association the deposits
of which are insured by the Federal Deposit Insurance
Corporation;
(3) the Federal Credit Union Act (12 U.S.C. 1751 et seq.)
by the National Credit Union Administration Board with respect
to any Federal credit union;
(4) part A of subtitle VII of title 49, United States Code,
by the Secretary of Transportation with respect to any air
carrier or foreign air carrier subject to that part;
(5) the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et
seq.) (except as provided in section 406 of that Act (7 U.S.C.
226, 227)), by the Secretary of Agriculture with respect to any
activities subject to that Act; and
(6) the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) by
the Farm Credit Administration with respect to any Federal land
bank, Federal land bank association, Federal intermediate
credit bank, or production credit association.
(c) Exercise of Certain Powers.--For the purpose of the exercise by
any agency referred to in subsection (b) of its powers under any Act
referred to in that subsection, a violation of section 3 of this Act I
is deemed to be a violation of a requirement imposed under that Act. In
addition to its powers under any provision of law specifically referred
to in subsection (b), each of the agencies referred to in that
subsection may exercise, for the purpose of enforcing compliance with
any requirement imposed under section 3 of this Act, any other
authority conferred on it by law.
(d) Actions by the Commission.--The Commission shall prevent any
person from violating section 3 of 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. Any entity that violates any provision of that
section is subject to the penalties and entitled to the privileges and
immunities provided in the Federal Trade Commission Act in the same
manner, by the same means, and with the same jurisdiction, power, and
duties as though all applicable terms and provisions of the Federal
Trade Commission Act were incorporated into and made a part of that
section.
(e) Preservation of Commission Authority.--Nothing contained in
this section shall be construed to limit the authority of the
Commission under any other provision of law.
SEC. 5. ACTIONS BY STATES.
(a) In General.--
(1) Civil actions.--In any case in which the attorney
general of a State has reason to believe that an interest of
the residents of that State has been or is threatened or
adversely affected by the engagement of any person in a
practice that section 3 of this Act, the State, as parens
patriae, may bring a civil action on behalf of the residents of
the State in a district court of the United States of
appropriate jurisdiction--
(A) to enjoin that practice;
(B) to enforce compliance with the rule;
(C) to obtain damage, restitution, or other
compensation on behalf of residents of the State; or
(D) to obtain such other relief as the court may
consider to be appropriate.
(2) Notice.--
(A) In general.--Before filing an action under
paragraph (1), the attorney general of the State
involved shall provide to the Commission--
(i) written notice of that action; and
(ii) a copy of the complaint for that
action.
(B) Exemption.--
(i) In general.--Subparagraph (A) shall not
apply with respect to the filing of an action
by an attorney general of a State under this
subsection, if the attorney general determines
that it is not feasible to provide the notice
described in that subparagraph before the
filing of the action.
(ii) Notification.--In an action described
in clause (i), the attorney general of a State
shall provide notice and a copy of the
complaint to the Commission at the same time as
the attorney general files the action.
(b) Intervention.--
(1) In general.--On receiving notice under subsection
(a)(2), the Commission shall have the right to intervene in the
action that is the subject of the notice.
(2) Effect of intervention.--If the Commission intervenes
in an action under subsection (a), it shall have the right--
(A) to be heard with respect to any matter that
arises in that action; and
(B) to file a petition for appeal.
(c) Construction.--For purposes of bringing any civil action under
subsection (a), nothing in this subtitle shall be construed to prevent
an attorney general of a State from exercising the powers conferred on
the attorney general by the laws of that State to--
(1) conduct investigations;
(2) administer oaths or affirmations; or
(3) compel the attendance of witnesses or the production of
documentary and other evidence.
(d) Actions by the Commission.--In any case in which an
action is instituted by or on behalf of the Commission for violation of
section 2 of this Act, no State may, during the pendency of that
action, institute an action under subsection (a) against any defendant
named in the complaint in that action for violation of that section.
(e) Venue; Service of Process.--
(1) Venue.--Any action brought under subsection (a) may be
brought in the district court of the United States that meets
applicable requirements relating to venue under section 1391 of
title 28, United States Code.
(2) Service of process.--In an action brought under
subsection (a), process may be served in any district in which
the defendant--
(A) is an inhabitant; or
(B) may be found.
SEC. 6. DEFINITIONS.
In this Act:
(1) Child.--The term ``child'' means an individual under
the age of 16.
(2) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(3) Express consent.--
(A) In general.--The term ``express consent'' means
an affirmative indication of permission in writing or
electronic form. The term ``express consent'' does not
include consent inferred from a failure to indicate
affirmatively that consent is denied or withheld.
(B) Prerequisites.--Express consent is not valid
unless--
(i) before granting the consent the
individual granting the consent was informed of
the purpose for which the information would be
sold, purchased, or used; and
(ii) consent was not granted as a condition
for making a product, service, or warranty
available to the individual or the child to
which the information pertains.
(4) Marketing.--The term ``marketing'' means making a
communication to encourage the purchase or use of a commercial
product or service. For purposes of this paragraph, a product
or service shall be considered to be commercial if some or all
of the proceeds from the sale inure to the benefit of an
enterprise conducted for profit.
(5) Parent.--The term ``parent'' includes a legal guardian.
(6) Personal information.--The term ``personal
information'' means identifiable information about an
individual, including--
(A) a name;
(B) a home or other physical address including
street name and name of a city or town;
(C) an e-mail address or online username;
(D) a telephone number;
(E) a Social Security number; or
(F) any other information that permits a specific
individual to be identified.
(7) Purchase; sell; sale.--In section 3, the terms
``purchase'', ``sell'', and ``sale'' include the purchase and
sale of the right to use personal information, without regard
to whether--
(A) the right is limited or unlimited;
(B) the transaction is characterized as a purchase,
sale, lease, or otherwise; and
(C) the consideration for the transaction is
monetary, goods, or services.
SEC. 7. EFFECTIVE DATE.
This Act takes effect 6 months after the date of enactment.
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