Do-Not-Track Online Act of 2011 - Requires the Federal Trade Commission (FTC) to promulgate: (1) regulations that establish standards for the implementation of a mechanism by which an individual can indicate whether he or she prefers to have personal information collected by providers of online services, including by providers of mobile applications and services; and (2) rules that prohibit such providers from collecting personal information on individuals who have expressed a preference not to have such information collected.
Requires such rules to allow for the collection and use of personal information if: (1) the information is necessary to provide a service requested by the individual so long as identifying particulars are removed or the information is deleted upon the provision of such service; or (2) the individual receives clear, conspicuous, and accurate notice on, and consents to, such collection and use.
Provides for FTC and state enforcement of such rules and regulations.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 913 Introduced in Senate (IS)]
112th CONGRESS
1st Session
S. 913
To require the Federal Trade Commission to prescribe regulations
regarding the collection and use of personal information obtained by
tracking the online activity of an individual, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 9, 2011
Mr. Rockefeller introduced the following bill; which was read twice and
referred to the Committee on Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To require the Federal Trade Commission to prescribe regulations
regarding the collection and use of personal information obtained by
tracking the online activity of an individual, 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 ``Do-Not-Track Online Act of 2011''.
SEC. 2. REGULATIONS RELATING TO ``DO-NOT-TRACK'' MECHANISMS.
(a) In General.--Not later than 1 year after the date of the
enactment of this Act, the Federal Trade Commission shall promulgate--
(1) regulations that establish standards for the
implementation of a mechanism by which an individual can simply
and easily indicate whether the individual prefers to have
personal information collected by providers of online services,
including by providers of mobile applications and services; and
(2) rules that prohibit, except as provided in subsection
(b), such providers from collecting personal information on
individuals who have expressed, via a mechanism that meets the
standards promulgated under paragraph (1), a preference not to
have such information collected.
(b) Exception.--The rules promulgated under paragraph (2) of
subsection (a) shall allow for the collection and use of personal
information on an individual described in such paragraph,
notwithstanding the expressed preference of the individual via a
mechanism that meets the standards promulgated under paragraph (1) of
such subsection, to the extent--
(1) necessary to provide a service requested by the
individual, including with respect to such service, basic
functionality and effectiveness, so long as such information is
anonymized or deleted upon the provision of such service; or
(2) the individual--
(A) receives clear, conspicuous, and accurate
notice on the collection and use of such information;
and
(B) affirmatively consents to such collection and
use.
(c) Factors.--In promulgating standards and rules under subsection
(a), the Federal Trade Commission shall consider and take into account
the following:
(1) The appropriate scope of such standards and rules,
including the conduct to which such rules shall apply and the
persons required to comply with such rules.
(2) The technical feasibility and costs of--
(A) implementing mechanisms that would meet such
standards; and
(B) complying with such rules.
(3) Mechanisms that--
(A) have been developed or used before the date of
the enactment of this Act; and
(B) are for individuals to indicate simply and
easily whether the individuals prefer to have personal
information collected by providers of online services,
including by providers of mobile applications and
services.
(4) How mechanisms that meet such standards should be
publicized and offered to individuals.
(5) Whether and how information can be collected and used
on an anonymous basis so that the information--
(A) cannot be reasonably linked or identified with
a person or device, both on its own and in combination
with other information; and
(B) does not qualify as personal information
subject to the rules promulgated under subsection
(a)(2).
(6) The standards under which personal information may be
collected and used, subject to the anonymization or deletion
requirements of subsection (b)(1)--
(A) to fulfill the basic functionality and
effectiveness of an online service, including a mobile
application or service;
(B) to provide the content or services requested by
individuals who have otherwise expressed, via a
mechanism that meets the standards promulgated under
subsection (a)(1), a preference not to have personal
information collected; and
(C) for such other purposes as the Commission
determines substantially facilitates the functionality
and effectiveness of the online service, or mobile
application or service, in a manner that does not
undermine an individual's preference, expressed via
such mechanism, not to collect such information.
(d) Rulemaking.--The Federal Trade Commission shall promulgate the
standards and rules required by subsection (a) in accordance with
section 553 of title 5, United States Code.
SEC. 3. ENFORCEMENT OF ``DO-NOT-TRACK'' MECHANISMS.
(a) Enforcement by Federal Trade Commission.--
(1) Unfair or deceptive acts or practices.--A violation of
a rule promulgated under section 2(a)(2) shall be treated as an
unfair and deceptive act or practice in violation of a
regulation under section 18(a)(1)(B) of the Federal Trade
Commission Act (15 U.S.C. 57a(a)(1)(B)) regarding unfair or
deceptive acts or practices.
(2) Powers of commission.--
(A) In general.--Except as provided in subparagraph
(C), the Federal Trade Commission shall enforce 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.
(B) Privileges and immunities.--Except as provided
in subparagraph (C), any person who violates this Act
shall be subject to the penalties and entitled to the
privileges and immunities provided in the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(C) Nonprofit organizations.--The Federal Trade
Commission shall enforce this Act with respect to an
organization that is not organized to carry on business
for its own profit or that of its members as if such
organization were a person over which the Commission
has authority pursuant to section 5(a)(2) of the
Federal Trade Commission Act (15 U.S.C. 45(a)(2)).
(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 the engagement of any person subject to a rule
promulgated under section 2(a)(2) in a practice that violates
the rule, 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--
(A) to enjoin further violation of such rule by
such person;
(B) to compel compliance with such rule;
(C) to obtain damages, restitution, or other
compensation on behalf of such residents;
(D) to obtain such other relief as the court
considers appropriate; or
(E) to obtain civil penalties in the amount
determined under paragraph (2).
(2) Civil penalties.--
(A) Calculation.--Subject to subparagraph (B), for
purposes of imposing a civil penalty under paragraph
(1)(E) with respect to a person that violates a rule
promulgated under section 2(a)(2), the amount
determined under this paragraph is the amount
calculated by multiplying the number of days that the
person is not in compliance with the rule by an amount
not greater than $16,000.
(B) Maximum total liability.--The total amount of
civil penalties that may be imposed with respect to a
person that violates a rule promulgated under section
2(a)(2) shall not exceed $15,000,000 for all civil
actions brought against such person under paragraph (1)
for such violation.
(C) Adjustment for inflation.--Beginning on the
date on which the Bureau of Labor Statistics first
publishes the Consumer Price Index after the date that
is 1 year after the date of the enactment of this Act,
and annually thereafter, the amounts specified in
subparagraphs (A) and (B) shall be increased by the
percentage increase in the Consumer Price Index
published on that date from the Consumer Price Index
published the previous year.
(3) Rights of federal trade commission.--
(A) Notice to federal trade commission.--
(i) In general.--Except as provided in
clause (iii), the attorney general of a State
shall notify the Federal Trade 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 Federal
Trade Commission immediately upon instituting
the civil action.
(B) Intervention by federal trade commission.--The
Federal Trade Commission may--
(i) intervene in any civil action brought
by the attorney general of a State under
paragraph (1); and
(ii) upon intervening--
(I) be heard on all matters arising
in the civil action; and
(II) file petitions for appeal of a
decision in the civil action.
(4) 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.
(5) Preemptive action by federal trade commission.--If the
Federal Trade Commission institutes a civil action or an
administrative action with respect to a violation of a rule
promulgated under section 2(a)(2), 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.
(6) Venue; service of process.--
(A) Venue.--Any action brought under paragraph (1)
may be brought in--
(i) the district court of the United States
that meets applicable requirements relating to
venue under section 1391 of title 28, United
States Code; or
(ii) another court of competent
jurisdiction.
(B) Service of process.--In an action brought under
paragraph (1), process may be served in any district in
which the defendant--
(i) is an inhabitant; or
(ii) may be found.
(7) 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 paragraph (1),
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 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.
SEC. 4. BIENNIAL REVIEW AND ASSESSMENT.
Not later than 2 years after the effective date of the regulations
initially promulgated under section 2, the Federal Trade Commission
shall--
(1) review the implementation of this Act;
(2) assess the effectiveness of such regulations, including
how such regulations define or interpret the term ``personal
information'' as such term is used in section 2;
(3) assess the effect of such regulations on online
commerce; and
(4) submit to Congress a report on the results of the
review and assessments required by this section.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S2780-2781)
Read twice and referred to the Committee on Commerce, Science, and Transportation. (text of measure as introduced: CR S2781-2782)
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