Allocates enforcement authority among designated Federal agencies and the Federal Trade Commission (FTC). Establishes a civil penalty for violations. Permits similar civil actions by the States.
Directs the FTC to contract with the National Research Council of the National Academy of Sciences for a study of online privacy and response tools and strategies.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2928 Introduced in Senate (IS)]
106th CONGRESS
2d Session
S. 2928
To protect the privacy of consumers who use the Internet.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 26, 2000
Mr. McCain (for himself, Mr. Kerry, Mr. Abraham, and Mrs. Boxer)
introduced the following bill; which was read twice and referred to the
Committee on Commerce, Science, and Transporation
_______________________________________________________________________
A BILL
To protect the privacy of consumers who use the Internet.
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 ``Consumer Internet Privacy
Enhancement Act''.
SEC. 2. COLLECTION OF PERSONALLY IDENTIFIABLE INFORMATION.
(a) In General.--It is unlawful for a commercial website operator
to collect personally identifiable information online from a user of
that website unless the operator provides--
(1) notice to the user on the website in accordance with
the requirements of subsection (b); and
(2) an opportunity to that user to limit the use for
marketing purposes, or disclosure to third parties of
personally identifiable information collected that is--
(A) not related to provision of the products or
services provided by the website; or
(B) not required to be disclosed by law.
(b) Notice.--
(1) In general.--For purposes of subsection (a), notice
consists of a statement that informs a user of a website of the
following:
(A) The identity of the operator of the website and
of any third party the operator knowingly permits to
collect personally identifiable information from users
through the website, including the provision of an
electronic means of going to a website operated by any
such third party.
(B) A list of the types of personally identifiable
information that may be collected online by the
operator and the categories of information the operator
may collect in connection with the user's visit to the
website.
(C) A description of how the operator uses such
information, including a statement as to whether the
information may be sold, distributed, disclosed, or
otherwise made available to third parties for marketing
purposes.
(D) A description of the categories of potential
recipients of any such personally identifiable
information.
(E) Whether the user is required to provide
personally identifiable information in order to use the
website and any other consequences of failure to
provide that information.
(F) A general description of what steps the
operator takes to protect the security of personally
identifiable information collected online by that
operator.
(G) A description of the means by which a user may
elect not to have the user's personally identifiable
information used by the operator for marketing purposes
or sold, distributed, disclosed, or otherwise made
available to a third party, except for--
(i) information related to the provision of
the product or service provided by the website;
or
(ii) information required to be disclosed
by law.
(H) The address or telephone number at which the
user may contact the website operator about its
information practices and also an electronic means of
contacting the operator.
(2) Form of notice.--The notice required by subsection (a)
shall be clear, conspicuous, and easily understood.
(3) Opportunity to limit disclosure.--The opportunity
provided to users to limit use and disclosure of personally
identifiable information shall be easy to use, easily
accessible, and shall be available online.
(c) Inconsistent State Law.--No State or local government may
impose any liability for commercial activities or actions by a
commercial website operator in interstate or foreign commerce in
connection with an activity or action described in this Act that is
inconsistent with, or more restrictive than, the treatment of that
activity or action under this section.
(d) Safe Harbor.--A commercial website operator may not be held to
have violated any provision of this Act if it complies with self-
regulatory guidelines that--
(1) are issued by seal programs or representatives of the
marketing or online industries or by any other person; and
(2) are approved by the Commission as containing all the
requirements set forth in subsection (b).
SEC. 3. ENFORCEMENT.
(a) In General.--The violation of section 2(a) or (b) shall be
treated as a violation of a rule defining an unfair or deceptive act or
practice in or affecting commerce proscribed by section 18(a)(1)(B) of
the Federal Trade Commission Act (15 U.S.C. 57(a)(1)(B)).
(b) Enforcement by Certain Other Agencies.--Compliance with section
2(a) or (b) 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 25(a) of
the Federal Reserve Act (12 U.S.C. 601 et seq. and 611 et seq.), 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 2(a) or (b) 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 2(a) or (b), any other authority
conferred on it by law.
(d) Actions by the Commission.--The Commission shall prevent any
person from violating section 2(a) or (b) 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 title
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
title.
(e) Relationship to Other Laws.--
(1) Commission authority.--Nothing contained in this Act
shall be construed to limit the authority of the Commission
under any other provision of law.
(2) Communications act.--Nothing in section 2(a) or (b)
requires an operator of a website to take any action that is
inconsistent with the requirements of section 222 or 631 of the
Communications Act of 1934 (47 U.S.C. 222 or 551,
respectively).
(3) Other acts.--Nothing in this Act is intended to affect
any provision of, or any amendment made by--
(A) the Children's Online Privacy Protection Act of
1998;
(B) the Gramm-Leach-Bliley Act; or
(C) the Health Insurance Portability and
Accountability Act of 1996.
(f) Civil Penalty.--In addition to any other penalty applicable to
a violation of section 2(a), there is hereby imposed a civil penalty of
$22,000 for each such violation. In the event of a continuing
violation, each day on which the violation continues shall be
considered as a separate violation for purposes of this subsection. The
maximum penalty under this subsection for a related series of
violations is $500,000. For purposes of this subsection, the violation
of an order issued by the Commission under this Act shall not be
considered to be a violation of section 2(a) of this Act.
SEC. 4. 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 violates section 2(a) or (b), 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 to--
(A) enjoin that practice;
(B) obtain damage, restitution, or other
compensation on behalf of residents of the State; or
(C) 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.
(3) Amicus curiae.--Upon application to the court, a person
whose self-regulatory guidelines have been approved by the
Commission and are relied upon as a defense by any defendant to
a proceeding under this section may file amicus curiae in that
proceeding.
(c) Construction.--For purposes of bringing any civil action under
subsection (a), nothing in this Act 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(a) or (b) 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 rule.
(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. 5. STUDY OF ONLINE PRIVACY.
(a) In General.--Within 90 days after the date of enactment of this
Act, the Commission shall execute a contract with the National Research
Council of the National Academy of Sciences for a study of privacy that
will examine causes for concern about privacy in the information age
and tools and strategies for responding to those concerns.
(b) Scope.--The study required by subsection (a) shall--
(1) survey the risks to, and benefits associated with the
use of, personal information associated with information
technology, including actual and potential issues related to
trends in technology;
(2) examine the costs and benefits involved in the
collection and use of personal information;
(3) examine the differences, if any, between the collection
and use of personal information by the online industry and the
collection and use of personal information by other businesses;
(4) examine the costs, risks, and benefits of providing
consumer access to information collected online, and examine
approaches to providing such access;
(5) examine the security of personal information collected
online;
(6) examine such other matters relating to the collection,
use, and protection of personal information online as the
Council and the Commission consider appropriate; and
(7) examine efforts being made by industry to provide
notice, choice, access, and security.
(c) Recommendations.--Within 12 months after the Commission's
request under subsection (a), the Council shall complete the study and
submit a report to the Congress, including recommendations for private
and public sector actions including self-regulation, laws, regulations,
or special agreements.
(d) Agency Cooperation.--The head of each Federal department or
agency shall, at the request of the Commission or the Council,
cooperate as fully as possible with the Council in its activities in
carrying out the study.
(e) Funding.--The Commission is authorized to be obligate not more
than $1,000,000 to carry out this section from funds appropriated to
the Commission.
SEC. 6. DEFINITIONS.
In this Act:
(1) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(2) Commercial website operator.--The term ``operator of a
commercial website''--
(A) means any person who operates a website located
on the Internet or an online service and who collects
or maintains personal information from or about the users of or
visitors to such website or online service, or on whose behalf such
information is collected or maintained, where such website or online
service is operated for commercial purposes, including any person
offering products or services for sale through that website or online
service, involving commerce--
(i) among the several States or with 1 or
more foreign nations;
(ii) in any territory of the United States
or in the District of Columbia, or between any
such territory and--
(I) another such territory; or
(II) any State or foreign nation;
or
(iii) between the District of Columbia and
any State, territory, or foreign nation; but
(B) does not include any nonprofit entity that
would otherwise be exempt from coverage under section 5
of the Federal Trade Commission Act (15 U.S.C. 45).
(3) Collect.--The term ``collect'' means the gathering of
personally identifiable information about a user of an Internet
service, online service, or commercial website by or on behalf
of the provider or operator of that service or website by any
means, direct or indirect, active or passive, including--
(A) an online request for such information by the
provider or operator, regardless of how the information
is transmitted to the provider or operator;
(B) the use of an online service to gather the
information; or
(C) tracking or use of any identifying code linked
to a user of such a service or website, including the
use of cookies.
(4) Internet.--The term ``Internet'' means collectively the
myriad of computer and telecommunications facilities, including
equipment and operating software, which comprise the
interconnected world-wide network of networks that employ the
Transmission Control Protocol/Internet Protocol, or any
predecessor or successor protocols to such protocol, to
communicate information of all kinds by wire or radio.
(5) Personally identifiable information.--The term
``personally identifiable information'' means individually
identifiable information about an individual collected online,
including--
(A) a first and last name, whether given at birth
or adoption, assumed, or legally changed;
(B) a home or other physical address including
street name and name of a city or town;
(C) an e-mail address;
(D) a telephone number;
(E) a Social Security number; or
(F) unique identifying information that an Internet
service provider or operator of a commercial website
collects and combines with any information described in
the preceding subparagraphs of this paragraph.
(6) Online.--The term ``online'' refers to any activity
regulated by this Act or by section 2710 of title 18, United
States Code, that is effected by active or passive use of an
Internet connection, regardless of the medium by or through
which that connection is established.
(7) Third party.--The term ``third party'', when used in
reference to a commercial website operator, means any person
other than the operator.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S7668-7669)
Read twice and referred to the Committee on Commerce, Science, and Transportation. (text of measure as introduced: CR S7669-7670)
Committee on Commerce, Science, and Transportation. Hearings held. Hearings printed: S.Hrg. 106-1147.
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