[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3631 Introduced in House (IH)]






108th CONGRESS
  1st Session
                                H. R. 3631

   To prohibit the collection, by interactive video-related service 
providers, of personally identifiable information regarding the viewing 
                choices of subscribers to such services.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 21, 2003

 Mr. Sherman introduced the following bill; which was referred to the 
                    Committee on Energy and Commerce

_______________________________________________________________________

                                 A BILL


 
   To prohibit the collection, by interactive video-related service 
providers, of personally identifiable information regarding the viewing 
                choices of subscribers to such services.

    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 ``Television Viewer Privacy Act of 
2003''.

SEC. 2. PROTECTION OF PRIVACY OF USERS OF INTERACTIVE VIDEO-RELATED 
              SERVICES.

    (a) In General.--An interactive video-related service provider may 
not collect, maintain, or disclose any personal viewing information 
regarding a subscriber to the service that is personally identifiable, 
without the prior written or electronic consent of such subscriber, 
except--
            (1) to render, or conduct a legitimate business activity 
        related to, the service provided to the subscriber by such 
        provider, including billing for such service; or
            (2) as provided in subsection (c) or (d).
    (b) Requirements for Consent.--Consent shall not be considered to 
be made by a subscriber, for purposes of this subsection, unless prior 
to the writing or electronic communication granting the consent, the 
subscriber is provided a separate statement that clearly and 
conspicuously informs the subscriber of--
            (1) the nature of personally identifiable information 
        collected or to be collected with respect to the subscriber and 
        the nature and use of such information;
            (2) the nature, frequency, and purpose of any disclosure 
        that may be made of such information, including an 
        identification of the types of persons to whom the disclosure 
        may be made;
            (3) the period during which such information will be 
        maintained by the interactive video-related service provider;
            (4) the limitations provided by this section with respect 
        to the collection, maintenance, and disclosure of information 
        by an interactive video-related service provider and the 
        methods under subsections (f) and (g) by which such limitations 
        may be enforced.
If, after a statement referred to in the preceding sentence is provided 
to a subscriber, there is any change with respect to any of the 
information described in paragraphs (1) through (5), such statement 
shall not be sufficient for purposes of this subsection.
    (c) Disclosure Pursuant to Court Order.--An interactive video-
related service provider may disclose such personally identifiable 
personal viewing information, to the extent necessary to comply with a 
court order authorizing such disclosure to a governmental entity, but 
only if--
            (1) the subscriber is notified of such order by the person 
        to whom the order is directed; and
            (2) in the proceeding relevant to such court order--
                    (A) such entity offers clear and convincing 
                evidence that the subject of the information is 
                reasonably suspected of engaging in criminal activity 
                and that the information disclosed would be material 
                evidence in the case; and
                    (B) the subject of the information is afforded the 
                opportunity to appear and contest such entity's claim.
    (d) Right of Subscriber to Access Information.--If personally 
identifiable viewing information regarding a subscriber to a service 
provided by an interactive video-related service provider is collected, 
the subscriber shall have access to such information for as long as 
such information is maintained.
    (e) Destruction of Information.--An interactive video-related 
service provider shall destroy any personally identifiable personal 
viewing information that is collected by the service as soon as such 
information is no longer necessary for the purpose for which it was 
collected or maintained pursuant to subsection (a) and there are no 
pending requests or orders for access to such information under 
subsection (d) or pursuant to a court order.
    (f) FTC Enforcement.--
            (1) Unfair or deceptive act.--This section shall be 
        enforced by the Federal Trade Commission as if the violation of 
        this section 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)).
            (2) Actions by ftc.--The Federal Trade Commission shall 
        prevent any person from violating this section 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 section. 
        Any entity that violates any provision of this 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 this section.
            (3) Jurisdiction.--Notwithstanding section 5(a)(2) of the 
        Federal Trade Commission Act (15 U.S.C. 45(a)(2)), 
        communications common carriers shall be subject to the 
        jurisdiction of the Federal Trade Commission for purposes of 
        this section.
    (g) 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 that State has been or is threatened or adversely 
        affected by any interactive video-related service provider who 
        violates this section, the State may bring a civil action in a 
        United States district court--
                    (A) to enjoin further violation of this section by 
                the defendant; or
                    (B) to obtain damages on behalf of residents of the 
                State, as provided in paragraph (2).
            (2) Damages, fees, and costs.--In an action under paragraph 
        (1)(B), the court may award--
                    (A) actual damages, but not less than liquidated 
                damages computed at the rate of $100 a day for each day 
                of violation or $1,000, whichever is higher;
                    (B) punitive damages; and
                    (C) reasonable attorneys' fees and other litigation 
                costs reasonably incurred.
    (h) Other Remedies.--The remedies provided by this Act shall be in 
addition to any other lawful remedy available to a subscriber to an 
interactive video-related service.
    (i) Definitions.--For purposes of this section, the following 
definitions shall apply:
            (1) Interactive video-related services provider.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the term ``interactive video-related services 
                provider'' means any person who has access to personal 
                viewing information through--
                            (i) the provision of video programming (as 
                        such term is defined in section 602 of the 
                        Communications Act of 1934 (47 U.S.C. 522);
                            (ii) services for recording of video 
                        programming;
                            (iii) navigation devices, computer 
                        software, or information;
                            (iv) converter boxes;
                            (v) interactive communications equipment; 
                        or
                            (vi) other equipment that is used by 
                        consumers to access multichannel video 
                        programming or other services offered through a 
                        service providing multichannel video 
                        programming.
                    (B) Exception.--Such term shall not include any 
                cable operator (as such term is defined in section 602 
                of the Communications Act of 1934.
            (2) Legitimate business activity.--The term ``legitimate 
        business activity'' means, with respect to an interactive 
        video-related service provider, any interaction between a 
        consumer and the provider that is necessary to maintain the 
        providing of a good or service requested by the consumer, 
        including approving, guaranteeing, processing, administering, 
        completing, enforcing, providing, or marketing a product, 
        service, account, benefit, transaction, or payment method that 
        is requested or approved by the consumer.
            (3) Personal viewing information.--The term ``personal 
        viewing information'' means, with respect to multichannel video 
        programming provided to a person, information regarding the 
        video programming that the person views, displays, or records.
            (4) Personally identifiable information.--The term 
        ``personally identifiable information'' does not include any 
        record of aggregate data that does not identify particular 
        persons.
            (5) Video programming.--The term ``video programming'' has 
        the meaning given such term in section 602 of the 
        Communications Act of 1934.
    (j) Preemption of State Laws.--This section supercedes any statute, 
regulation, or rule of a State or political subdivision of a State that 
expressly regulates the collection, maintenance, or disclosure of 
personal viewing information, regarding multichannel video programming, 
that is personally identifiable.
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