[Congressional Record Volume 150, Number 26 (Wednesday, March 3, 2004)]
[Senate]
[Pages S2106-S2109]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. WYDEN (for himself, Mr. Stevens, and Ms. Murkowski):
S. 2160. A bill to regulate interstate commerce by prohibiting the
sale of children's personally identifiable information for commercial
marketing purposes; to the Committee on Commerce, Science, and
Transportation.
Mr. WYDEN. Mr. President and colleagues, there is now clear evidence
that it is open season for large-scale commercial marketing to the
Nation's smallest children. As a result, today I am introducing with
the distinguished chairman of the Senate Appropriations Committee,
Senator Stevens, legislation to protect the privacy of America's
children.
I suspect parents of very young children would not want their
children's names and addresses, their e-mail addresses, their ages and
other data
[[Page S2107]]
treated as a simple marketplace commodity to be freely bought and sold
for a profit with no questions asked. Yet that is exactly what happens
every day.
Parents may not be aware of it, but large list brokers routinely
advertise and sell information on very young children for marketing
purposes. Their lists cover millions of children and often include such
data as ethnicity, family income, and hobbies or interests. In short,
commercial trafficking in personal information about very young
children is surprisingly commonplace.
How extreme has it gotten? Take a look at this example. The broker
of this list says on their Web site that they have more than 15 million
names of children from the ages of 2 to 13. They said they update it
monthly. That is why it is clear it is open season for large-scale
marketing to the country's smallest children, which has concerned
Senator Stevens and I. The list brokers break it down for the
marketers, as well, to help them target the very young.
On this next graphic, a list broker offers marketing lists that only
contain the names of preschool children ages 2 to 5. If that is too
young for a particular marketer's needs, the marketer could pursue
lists of elementary school children ages 5 through 11 or junior high
school kids age 11 to 13. These lists of young children are advertised
openly on the Internet for anyone who is interested.
We can see the details promised: Full name, address, and age. My
view is that is not information about youngsters that parents want
available for sale without the consent of the parents. But it is
happening now all the time because there is big money in marketing to
the very young. Children, of course, influence the purchases of their
parents. Sometimes they have money to spend of their own. As a result,
an estimated $12 billion per year is spent on marketing to these very
young children.
Unfortunately, with all the money involved, the ethics of direct
marketing to children and appropriate limits get short shrift. The very
young are not likely to understand the intent and tactics of marketing
pitches the way adults do and may be more vulnerable to influence,
manipulation, and questionable and deceptive tactics. The wholesale
trafficking of specific information about individual youngsters and the
use of that information to target and contact those children for
marketing purposes is something that most parents find very troubling.
The suggested use for these lists runs the gamut. Here is another
list broker that has 20 million names of children in preschool through
eighth grade. They have all kinds of suggestions. We can see a few of
the examples on the chart that make it clear exactly how great this
potential market is.
That is why I am introducing today, with the bipartisan support of
our colleague, the distinguished chairman of the Senate Appropriations
Committee, Senator Stevens, a privacy act to protect our youngsters.
The bill's premise is simple: Trafficking in data on very young
children for the purpose of commercial marketing should not be
permitted in our country. Specifically, the bill bans the selling or
purchasing of personal information about people that the seller and
purchaser know to be very young. There would be an exception for cases
where the parent is given express consent, provided that the parent had
notice of what he or she was consenting to and was not required to
grant consent as a condition of obtaining a desired product or service.
There would also be an exception for the sale of information for
nonmarketing purposes as long as the purchaser certifies it will
neither use the information for marketing nor allow others to do so.
This exception would allow, for example, health care officials to still
use available data to track the spread of a disease or for students, of
course, to get information about various academic activities. The list
buyers would have to certify that lists are not being purchased or
resold for marketing; otherwise they will be in violation of the law.
The bill's enforcement provisions track those of the Children's
Online Privacy Protection Act. Primary enforcement authority would rest
with the Federal Trade Commission, and State attorneys general would be
authorized to bring enforcement actions as well.
I think we all understand marketers have products they want to get
out, and lists are a big part of their trade. But it is one proposition
when the person on the list is an adult; it is quite another to be
buying and selling and trafficking in all of this data and all of these
lists on the very young.
I say to the Senate, if you just spend a little time on the Internet,
you will see what I have concluded; that it is open season for the
large-scale marketing that is targeted at very small children, and we
ought to make an effort to draw some lines.
Yes, marketing is accepted and important with respect to adults. But
I hope my colleagues will join me and Senator Stevens today in
supporting a commonsense effort to limit the way in which data is used
and commercialized about America's smallest children.
Mr. President, I ask unanimous consent that the text of the
legislation I am introducing today with Senator Stevens be printed in
the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 2160
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)).
[[Page S2108]]
(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.
(f) 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) Exception.--
(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.
Mr. STEVENS. Mr. President, I am proud to introduce, with my
colleague from Oregon, a bill which protects children from being
strategically targeted by commercial advertising.
I was shocked to learn that presently there is no law that restricts
companies from purchasing databases which contain information about
children.
In fact, websites have been brought to my attention that actually
sell lists of children as young as pre-school.
The thought of companies acquiring lists of information about kids
that are barely past the toddler stage is appalling.
These companies actually market that the lists can be selected and
purchased by sorting according to different age groups. They suggest
possible commercial uses for the lists such as for magazines, amusement
parks, child care services, etc.
One of the websites even points out that many high school students
have their own credit cards or have use of their parents' credit cards.
The website then suggests that companies could buy these lists so they
could market to children various products such as clothing, computers,
etc.
The bill that we are introducing today will deter entities from
selling
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these lists of personal information about children to be used for
commercial purposes.
The bill will prohibit anyone from selling or buying personal
information about a person who is known to be under 16 years of age
unless: 1. The parent has given express consent; or 2. The buyer
certifies that the information is being obtained for strictly non-
marketing purposes. If that is the case, they can't subsequently sell
the information to a commercial marketing group.
The enforcement will be by the Federal Trade Commission and the 50
attorney generals.
I look forward to working with my colleague from Oregon and others on
this bill.
______
By Mrs. BOXER:
S. 2161. A bill to amend title 5, United States Code, to establish a
national health program administered by the Office of Personnel
Management to offer Federal employee health benefits plans to
individuals who are not Federal employees, and for other purposes; to
the Committee on Finance.
Mrs. BOXER. Mr. President, over 43 million Americans are uninsured,
which means that one in every 7 Americans has no health insurance. It
is not surprising that two-thirds of the uninsured are low-income. What
may be surprising to some is that most of the uninsured--8 in 10--come
from working families. Most of these uninsured are not eligible for
public health insurance programs, such as Medicaid or SCHIP.
Lack of health insurance too often means poorer health care. The
uninsured receive less preventive care, are diagnosed at more advanced
disease stages, and once diagnosed, tend to receive less therapeutic
care. The Institute of Medicine estimates that 18,000 Americans die
prematurely each year due to the effects of a lack of health insurance.
The plight of the uninsured has consequences that reach beyond the
uninsured. In 2001, the uninsured amounted to about $35 billion in
uncompensated care. Those costs are borne by all of us through higher
health care costs and government-funded reimbursements.
Furthermore, the Institute of Medicine suggests that the reduced
health and higher mortality of the uninsured costs society between $65
billion and $130 billion a year, and concludes that public programs are
likely to have higher budgetary costs than they would if everyone under
65 had health insurance. In addition, the Urban Institute recently
found that if people were covered by insurance, there could be savings
to Medicare and Medicaid of $10 billion a year.
Even those who have health insurance find it extremely expensive and
of poor quality. It is time to expand access to affordable, quality
health insurance for all Americans.
The bill I am introducing today, the ``Universal Access to Affordable
Insurance for All Americans Act of 2004,'' is a partial solution that
will give Americans access to the same health insurance program as
Members of Congress.
It establishes a separate risk pool within the Federal Employee
Health Benefit Program for individuals who wish to purchase individual
or family coverage. The Office of Personnel Management would make at
least one private health insurance plan available through the FEHBP to
non-Federal employees. While individuals will have access to the same
program as Federal employees, the entry of others into FEHBP will not
affect Federal employees at all.
My bill also makes this insurance affordable by establishing
advanceable, refundable tax credits for certain low and middle-income
participants. For those below poverty, the credit is 100 percent. The
credit is gradually decreased up to 400 percent of poverty. So a family
of 4 making $18,850 or less would receive a 100 percent credit. A
family of 4 making $75,000 would receive a 30 percent credit.
We need to begin implementing measures to provide all Americans with
access to affordable health coverage. My bill is a step toward this
goal.
____________________