[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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