BROWSER Act of 2019

II 116TH CONGRESS 1ST SESSION S. 1116 To require providers of broadband internet access service and edge services to clearly and conspicuously notify users of the privacy policies of those providers, to give users opt-in or opt-out approval rights with respect to the use of, disclosure of, and access to user information collected by those providers based on the level of sensitivity of the information, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 10, 2019 Mrs. BLACKBURN introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To require providers of broadband internet access service and edge services to clearly and conspicuously notify users of the privacy policies of those providers, to give users opt-in or opt-out approval rights with respect to the use of, disclosure of, and access to user information collected by those providers based on the level of sensi- tivity of the information, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1116 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Balancing the Rights 2 Of Web Surfers Equally and Responsibly Act of 2019’’ 3 or the ‘‘BROWSER Act of 2019’’. 4 SEC. 2. DEFINITIONS. 5 In this Act: 6 (1) BROADBAND INTERNET ACCESS SERVICE.— 7 (A) IN GENERAL.—The term ‘‘broadband 8 internet access service’’ means a mass-market 9 retail service by wire or radio that provides the 10 capability to transmit data to and receive data 11 from all or substantially all internet endpoints, 12 including any capabilities that are incidental to 13 and enable the operation of the communications 14 service, but excluding dial-up internet access 15 service. 16 (B) FUNCTIONAL EQUIVALENT; EVA- 17 SION.—The term ‘‘broadband internet access 18 service’’ includes any service that— 19 (i) the Commission finds to be pro- 20 viding a functional equivalent of the service 21 described in subparagraph (A); or 22 (ii) is used to evade the protections 23 set forth in this Act. 24 (2) COMMISSION.—The term ‘‘Commission’’ 25 means the Federal Trade Commission. 26 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1116 IS (3) COVERED SERVICE.—The term ‘‘covered 1 service’’ means— 2 (A) broadband internet access service; or 3 (B) an edge service. 4 (4) EDGE SERVICE.—The term ‘‘edge serv- 5 ice’’— 6 (A) means a service provided over the 7 internet— 8 (i) for which the provider requires the 9 user to subscribe or establish an account in 10 order to use the service; 11 (ii) that the user purchases from the 12 provider of the service without a subscrip- 13 tion or account; 14 (iii) by which a program searches for 15 and identifies items in a database that cor- 16 respond to keywords or characters speci- 17 fied by the user, used especially for finding 18 particular sites on the world wide web; or 19 (iv) by which the user divulges sen- 20 sitive user information; and 21 (B) includes a service described in sub- 22 paragraph (A) that is provided through a soft- 23 ware program, including a mobile application. 24 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1116 IS (5) EMERGENCY SERVICES.—The term ‘‘emer- 1 gency services’’ has the meaning given the term in 2 section 222 of the Communications Act of 1934 (47 3 U.S.C. 222). 4 (6) MATERIAL.—The term ‘‘material’’ means, 5 with respect to a change in a privacy policy of a pro- 6 vider of a covered service, any change in the policy 7 that a user of the service, acting reasonably under 8 the circumstances, would consider important to the 9 decisions of the user regarding the privacy of the 10 user, including any change to information required 11 to be included in a privacy notice under section 3. 12 (7) MOBILE APPLICATION.—The term ‘‘mobile 13 application’’ means a software program that runs on 14 the operating system of a mobile device. 15 (8) NON-SENSITIVE USER INFORMATION.—The 16 term ‘‘non-sensitive user information’’ means any 17 user information that is not sensitive user informa- 18 tion. 19 (9) OPT-IN APPROVAL.—The term ‘‘opt-in ap- 20 proval’’ means a method for obtaining from a user 21 of a covered service consent to use, disclose, or per- 22 mit access to sensitive user information under which 23 the provider of the service obtains express consent 24 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1116 IS allowing the requested usage of, disclosure of, or ac- 1 cess to the sensitive user information. 2 (10) OPT-OUT APPROVAL.—The term ‘‘opt-out 3 approval’’ means a method for obtaining from a user 4 of a covered service consent to use, disclose, or per- 5 mit access to non-sensitive user information under 6 which the user is deemed to have consented to the 7 use of, disclosure of, or access to the non-sensitive 8 user information if the user has failed to object to 9 the use, disclosure, or access. 10 (11) PUBLIC SAFETY ANSWERING POINT.—The 11 term ‘‘public safety answering point’’ has the mean- 12 ing given the term in section 222 of the Communica- 13 tions Act of 1934 (47 U.S.C. 222). 14 (12) SENSITIVE USER INFORMATION.—The 15 term ‘‘sensitive user information’’ includes any of 16 the following: 17 (A) Financial information. 18 (B) Health information. 19 (C) Information pertaining to children 20 under the age of 13. 21 (D) Social Security number. 22 (E) Precise geolocation information. 23 (F) Content of communications. 24 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1116 IS (G) Web browsing history, history of usage 1 of a software program (including a mobile ap- 2 plication), and the functional equivalents of ei- 3 ther. 4 (13) STATE.—The term ‘‘State’’ means each of 5 the several States, the District of Columbia, the 6 Commonwealth of Puerto Rico, Guam, American 7 Samoa, the United States Virgin Islands, the Com- 8 monwealth of the Northern Mariana Islands, any 9 other territory or possession of the United States, 10 and each federally recognized Indian Tribe. 11 (14) USER.—The term ‘‘user’’ means, with re- 12 spect to a covered service, a person who— 13 (A) is a current or former— 14 (i) subscriber to the service; or 15 (ii) holder of an account for the serv- 16 ice; 17 (B) purchases the service without a sub- 18 scription or account; 19 (C) is an applicant for the service; or 20 (D) in the case of a service described in 21 clause (iii) or (iv) of paragraph (4)(A), uses the 22 service. 23 (15) USER INFORMATION.—The term ‘‘user in- 24 formation’’ means any information that— 25 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1116 IS (A) a provider of a covered service acquires 1 in connection with the provision of the service; 2 and 3 (B) is linked or reasonably linkable to an 4 individual. 5 SEC. 3. NOTICE OF PRIVACY POLICIES. 6 (a) IN GENERAL.—A provider of a covered service 7 shall provide a user of the service with clear and con- 8 spicuous notice of the privacy policies of the provider with 9 respect to the service. 10 (b) AVAILABILITY TO PROSPECTIVE USERS.—The 11 notice required by subsection (a) shall be made available 12 to a prospective user of a covered service— 13 (1) at the point of sale of, subscription to, or 14 establishment of an account for the covered service, 15 prior to that sale, subscription, or establishment, 16 without regard to whether the point of sale, sub- 17 scription, or establishment is in person, online, over 18 the telephone, or through another means; or 19 (2) if there is no such sale, subscription, or es- 20 tablishment, before the user uses the service. 21 (c) PERSISTENT AVAILABILITY.—The notice required 22 by subsection (a) shall be made persistently available. 23 (d) MATERIAL CHANGES.—A provider of a covered 24 service shall provide a user of the service with clear and 25 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1116 IS conspicuous advance notice of any material change to the 1 privacy policies of the provider with respect to the service. 2 SEC. 4. USER OPT-IN OR OPT-OUT APPROVAL RIGHTS 3 BASED ON SENSITIVITY OF INFORMATION. 4 (a) OPT-IN APPROVAL REQUIRED FOR SENSITIVE 5 USER INFORMATION.—Except as provided in subsection 6 (c), a provider of a covered service shall obtain opt-in ap- 7 proval from a user to use, disclose, or permit access to 8 the sensitive user information of the user. 9 (b) OPT-OUT APPROVAL REQUIRED FOR NON-SEN- 10 SITIVE USER INFORMATION.—Except as provided in sub- 11 section (c), a provider of a covered service— 12 (1) shall obtain opt-out approval from a user to 13 use, disclose, or permit access to any of the non-sen- 14 sitive user information of the user; or 15 (2) if the provider so chooses, may comply with 16 the requirement of paragraph (1) by obtaining opt- 17 in approval from the user to use, disclose, or permit 18 access to any of the non-sensitive user information 19 of the user. 20 (c) LIMITATIONS AND EXCEPTIONS.—A provider of 21 a covered service may use, disclose, or permit access to 22 user information without user approval for the following 23 purposes: 24 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1116 IS (1) In providing the covered service from which 1 the information is derived, or in providing services 2 necessary to, or used in, the provision of the service. 3 (2) To initiate, render, bill for, and collect for 4 the covered service. 5 (3) To protect the rights or property of the pro- 6 vider, or to protect users of the covered service and 7 other service providers from fraudulent, abusive, or 8 unlawful use of the service. 9 (4) To provide location information or non-sen- 10 sitive user information— 11 (A) to a public safety answering point, 12 emergency medical service provider or emer- 13 gency dispatch provider, public safety, fire serv- 14 ice, or law enforcement official, or hospital 15 emergency or trauma care facility, in order to 16 respond to the request of the user for emer- 17 gency services; 18 (B) to inform the legal guardian of the 19 user, or members of the immediate family of 20 the user, of the location of the user in an emer- 21 gency situation that involves the risk of death 22 or serious physical harm; or 23 (C) to providers of information or database 24 management services solely for purposes of as- 25 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1116 IS sisting in the delivery of emergency services in 1 response to an emergency. 2 (5) As otherwise required or authorized by law. 3 (d) MECHANISM FOR EXERCISING USER AP- 4 PROVAL.— 5 (1) IN GENERAL.—A provider of a covered serv- 6 ice shall make available a simple, easy-to-use mecha- 7 nism for a user to grant, deny, or withdraw opt-in 8 approval or opt-out approval at any time. 9 (2) FORM AND MANNER.—The mechanism re- 10 quired by paragraph (1) shall be— 11 (A) clear and conspicuous; and 12 (B) made available— 13 (i) at no additional cost to the user; 14 and 15 (ii) in a language other than English, 16 if the provider transacts business with the 17 user in that other language. 18 (3) EFFECT.—The grant, denial, or withdrawal 19 of opt-in approval or opt-out approval by a user 20 shall— 21 (A) be given effect promptly; and 22 (B) remain in effect until the user revokes 23 or limits the grant, denial, or withdrawal of ap- 24 proval. 25 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1116 IS SEC. 5. SERVICE OFFERS CONDITIONED ON WAIVERS OF 1 PRIVACY RIGHTS. 2 A provider of a covered service may not— 3 (1) condition, or effectively condition, provision 4 of the service on agreement by a user to waive pri- 5 vacy rights guaranteed by law or regulation, includ- 6 ing this Act; or 7 (2) terminate the service or otherwise refuse to 8 provide the service as a direct or indirect con- 9 sequence of the refusal of a user to waive any pri- 10 vacy rights described in paragraph (1). 11 SEC. 6. ENFORCEMENT BY FEDERAL TRADE COMMISSION. 12 (a) GENERAL APPLICATION.—The requirements of 13 this Act apply, according to their terms, to— 14 (1) those persons, partnerships, and corpora- 15 tions over which the Commission has authority pur- 16 suant to section 5(a)(2) of the Federal Trade Com- 17 mission Act (15 U.S.C. 45(a)(2)); and 18 (2) providers of broadband internet access serv- 19 ice, notwithstanding the exception in such section 20 5(a)(2) for common carriers subject to the Commu- 21 nications Act of 1934 (47 U.S.C. 151 et seq.). 22 (b) UNFAIR OR DECEPTIVE ACTS OR PRACTICES.— 23 A violation of this Act shall be treated as an unfair or 24 deceptive act or practice in or affecting commerce for pur- 25 VerDate Sep 11 2014 00:40 Apr 17, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1116.IS S1116 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1116 IS poses of section 5(a)(2) of the Federal Trade Commission 1 Act (15 U.S.C. 45(a)(2)). 2 (c) POWERS OF COMMISSION.—Except as provided in 3 subsection (a)(2) of this section— 4 (1) the Commission shall enforce this Act in the 5 same manner, by the same means, and with the 6 same jurisdiction, powers, and duties as though all 7 applicable terms and provisions of the Federal Trade 8 Commission Act (15 U.S.C. 41 et seq.) were incor- 9 porated into and made a part of this Act; and 10 (2) any person who violates this Act shall be 11 subject to the penalties and entitled to the privileges 12 and immunities provided in the Federal Trade Com- 13 mission Act. 14 SEC. 7. RELATIONSHIP TO OTHER LAW. 15 (a) PREEMPTION OF STATE LAW.—No State or polit- 16 ical subdivision of a State shall, with respect to a provider 17 of a covered service subject to this Act, adopt, maintain, 18 enforce, or impose or continue in effect any law, rule, [Text truncated for display. Full text available on Congress.gov.]