Do Not Track Act

II 116TH CONGRESS 1ST SESSION S. 1578 To protect the privacy of internet users through the establishment of a national Do Not Track system, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 21, 2019 Mr. HAWLEY introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To protect the privacy of internet users through the estab- lishment of a national Do Not Track system, 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 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Do Not Track Act’’. 4 SEC. 2. DEFINITIONS. 5 In this Act: 6 (1) COMMISSION.—The term ‘‘Commission’’ 7 means the Federal Trade Commission. 8 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 2 •S 1578 IS (2) CONNECTED DEVICE.—The term ‘‘con- 1 nected device’’ means a device that is capable of con- 2 necting to the internet, directly or indirectly. 3 (3) COVERED WEBSITE, SERVICE, OR APPLICA- 4 TION.—The term ‘‘covered website, service, or appli- 5 cation’’ means a website on the internet, an online 6 service, an online application, or a mobile application 7 that— 8 (A) is operated or provided for commercial 9 purposes, in interstate or foreign commerce; 10 and 11 (B) is not operated by a nonprofit entity 12 that would otherwise be exempt from coverage 13 under section 5 of the Federal Trade Commis- 14 sion Act (15 U.S.C. 45). 15 (4) DNT SIGNAL.—The term ‘‘DNT signal’’ 16 means a signal sent by a connected device, such as 17 the hypertext transfer protocol developed by the 18 World Wide Web Consortium Working Group on 19 Tracking Preference Expression, that is designated 20 by the Commission for purposes of the Do Not 21 Track program required under section 3(b). 22 (5) FIRST-PARTY OPERATOR.—The term ‘‘first- 23 party operator’’ means an operator of a website on 24 the internet, an online service, an online application, 25 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 3 •S 1578 IS or a mobile application with which a user intends to 1 connect, but does not include an operator of an ad- 2 vertisement that appears on such a website, service, 3 or application or a program used to log in to such 4 a website, service, or application (if the operator of 5 such advertisement or program is different from the 6 operator of the website, service, or application). 7 (6) TARGETED ADVERTISING.— 8 (A) IN GENERAL.—The term ‘‘targeted ad- 9 vertising’’ means a form of advertising where 10 advertisements are displayed to a user based on 11 the user’s traits, information from a profile 12 about the user that is created for the purpose 13 of selling advertisements, or the user’s previous 14 online or offline behavior. 15 (B) LIMITATION.—Such term shall not in- 16 clude contextual advertising, including— 17 (i) advertising that is directed to a 18 user based on the content of the website, 19 online service, online application, or mobile 20 application that the user is connected to; 21 or 22 (ii) advertising that is directed to a 23 user by the operator of a website, online 24 service, online application, or mobile appli- 25 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 4 •S 1578 IS cation based on the search terms that the 1 user used to arrive at such website, service, 2 or application. 3 (7) THIRD-PARTY OPERATOR.—The term 4 ‘‘third-party operator’’ means any operator of a pro- 5 gram that appears on a website, service, or applica- 6 tion with respect to which the operator is not a first- 7 party operator. 8 SEC. 3. ESTABLISHMENT OF DO NOT TRACK SYSTEM. 9 (a) IN GENERAL.—Not later than 6 months after the 10 date of enactment of this Act, the Commission shall imple- 11 ment and enforce a Do Not Track system, including the 12 program described in subsection (b), to protect consumers 13 from unwanted online data harvesting and targeted adver- 14 tising. 15 (b) DO NOT TRACK PROGRAM.—As part of the Do 16 Not Track system required under this section, the Com- 17 mission shall designate the DNT signal and make avail- 18 able on the public website of the Commission a simple pro- 19 gram that— 20 (1) can be downloaded to any common con- 21 nected device; 22 (2) sends the DNT signal to every website, on- 23 line service, or online application to which the device 24 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 5 •S 1578 IS connects each time the device connects to such 1 website, service, or application; and 2 (3) permits the user of the connected device to 3 designate websites, services, or applications to which 4 such signal should not be sent, but does not exempt 5 any website, service, or application from receiving 6 such signal if it is not so designated. 7 (c) OTHER DO NOT TRACK SYSTEMS.—Nothing in 8 this Act shall be construed as prohibiting the operator of 9 any web browser or similar interface or a device designer 10 or manufacturer from offering a program that sends the 11 DNT signal to websites, services, or applications, provided 12 that such program permits users to designate websites, 13 services, or applications to which such signal should not 14 be sent. 15 (d) RULEMAKING AUTHORITY.—The Commission 16 may promulgate regulations, in accordance with section 17 553 of title 5, United States Code, to carry out this sec- 18 tion. 19 SEC. 4. REQUIREMENTS FOR OPERATORS; PROHIBITED 20 ACTS. 21 (a) REQUIREMENTS.— 22 (1) SEARCH FOR DNT SIGNAL.—The operator 23 of any covered website, service, or application (or 24 any program that appears in such a website, applica- 25 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 6 •S 1578 IS tion, or service) shall ensure that the website, serv- 1 ice, or application (or program) searches for the 2 DNT signal whenever a connected device connects to 3 the website, service, or application. 4 (2) MANDATORY DISCLOSURE.— 5 (A) IN GENERAL.—Subject to subpara- 6 graph (B), if the operator of a covered website, 7 service, or application collects more data from 8 a user of such website, service, or application 9 than is necessary to operate such website, serv- 10 ice, or application the operator shall, through a 11 pop-up notification, provide any user whose 12 connected device is not sending the DNT signal 13 with— 14 (i) notice of the website, service, or 15 application’s policy of collecting data be- 16 yond what is necessary to operate the 17 website, service, or application; 18 (ii) notice of the protections from data 19 collection and targeted advertising avail- 20 able to users under this Act; 21 (iii) notice that the user may, through 22 the public website of the Federal Trade 23 Commission, download the Do Not Track 24 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 7 •S 1578 IS program described in section 3(b), and a 1 link to such website; and 2 (iv) notice that the user may be able 3 to activate the DNT signal through the 4 user’s device or browser. 5 (B) NUMBER AND TIMING OF DISCLO- 6 SURES.—The operator of a covered website, 7 service, or application shall make the disclo- 8 sures required under subparagraph (A)— 9 (i) the first time a connected device 10 connects to such website, service, or appli- 11 cation; and 12 (ii) unless the user of the connected 13 device opts out of receiving such disclo- 14 sures, at least every 30th time a connected 15 device connects to such website, service, or 16 application. 17 (C) COLLECTION OF DATA FOR TARGETED 18 ADVERTISING.—For purposes of this sub- 19 section, a covered website, service, or applica- 20 tion that collects data for the purpose of de- 21 signing or displaying targeted advertisements 22 shall be considered to be collecting more data 23 than is necessary to operate such website, serv- 24 ice, or application. 25 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 8 •S 1578 IS (b) PROHIBITION ON DATA COLLECTION AND TAR- 1 GETED ADVERTISING.— 2 (1) IN GENERAL.—Subject to paragraph (3), it 3 shall be unlawful for a first-party operator of a cov- 4 ered website, service, or application that receives the 5 DNT signal from the connected device of a user 6 to— 7 (A) collect data (other than such data as 8 is necessary for the operation of the website, 9 service, or application) from the user; 10 (B) use any data collected from the user 11 for a secondary purpose, including for the pur- 12 pose of targeted advertising; or 13 (C) share any data collected from the user 14 with a third party unless the user expressly 15 consents to the sharing of data in a manner 16 that demonstrates the user’s intent for the 17 first-party operator to be an intermediary be- 18 tween the user and the third party. 19 (2) PROHIBITION ON COLLECTION OF DATA BY 20 OTHER OPERATORS.— 21 (A) IN GENERAL.—It shall be unlawful for 22 a third-party operator of a program (including 23 a program that is an advertisement or a portal 24 used to log in to a website, service, or applica- 25 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 9 •S 1578 IS tion) that receives the DNT signal from the 1 connected device of a user of a covered website, 2 service, or application to collect any data from 3 such user, other than, subject to subparagraph 4 (B), data collected for the purpose of analyzing 5 how or whether the user engaged with such pro- 6 gram. 7 (B) LIMITATIONS ON COLLECTION OF 8 DATA FOR ENGAGEMENT ANALYTICS.—Data 9 collected for the purpose of analyzing user en- 10 gagement with a program described in subpara- 11 graph (A)— 12 (i) shall be collected only in a de-iden- 13 tified manner; and 14 (ii) may not be used to create or con- 15 tribute to a profile of the user from which 16 it is collected. 17 (3) EXCEPTIONS.— 18 (A) LAW ENFORCEMENT.—The prohibi- 19 tions on data collection described in paragraph 20 (1) shall not apply where data is collected for 21 the purpose of assisting a law enforcement 22 agency. 23 (B) COMPLEMENTARY SERVICES.—Not- 24 withstanding paragraph (1), a first-party oper- 25 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 10 •S 1578 IS ator of a covered website, service, or application 1 may collect additional data from a user beyond 2 what is necessary for the operation of such 3 website, service, or application if such addi- 4 tional data is necessary for the operation of a 5 different covered website, service, or application 6 that is— 7 (i) both owned and operated by such 8 first-party operator; 9 (ii) designed to complement the cov- 10 ered website, service, or application 11 accessed by the user; and 12 (iii) branded as a complementary 13 website, service, or application to the cov- 14 ered website, service, or application 15 accessed by the user. 16 (c) INTERFERING WITH DNT SIGNAL.—It shall be 17 unlawful for any person to— 18 (1) block or impede the ability of a covered 19 website, service, or application to receive the DNT 20 signal; or 21 (2) block or impede the ability of a connected 22 device to send the DNT signal. 23 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 11 •S 1578 IS (d) DISCRIMINATION BASED ON DNT PREF- 1 ERENCES.—It shall be unlawful for a first-party operator 2 of a covered website, service, or application to— 3 (1) deny a user access to, or service from, such 4 website, service, or application on the basis that the 5 website, service, or application received the DNT 6 signal from the user; or 7 (2) provide a user from whom such website, 8 service, or application received the DNT signal with 9 a different level of access or service than the level 10 of access or service provided to a user from whom 11 the website, service, or application does not receive 12 the DNT signal. 13 (e) EFFECTIVE DATE.—This section shall take effect 14 on the date that is 6 months after the date of enactment 15 of this Act. 16 SEC. 5. ENFORCEMENT AND APPLICABILITY. 17 (a) ENFORCEMENT BY THE COMMISSION.— 18 (1) IN GENERAL.—Except as otherwise pro- 19 vided, this Act and the regulations prescribed under 20 this Act shall be enforced by the Commission under 21 the Federal Trade Commission Act (15 U.S.C. 41 et 22 seq.). 23 (2) UNFAIR OR DECEPTIVE ACTS OR PRAC- 24 TICES.—A violation of this Act or a regulation pre- 25 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 12 •S 1578 IS scribed under this Act shall be treated as a violation 1 of a rule defining an unfair or deceptive act or prac- 2 tice prescribed under section 18(a)(1)(B) of the Fed- 3 eral Trade Commission Act (15 U.S.C. 4 57a(a)(1)(B)). 5 (3) ACTIONS BY THE COMMISSION.— 6 (A) IN GENERAL.—Except as provided in 7 subsection (b)(1), the Commission shall prevent 8 any person from violating this Act or a regula- 9 tion prescribed under this Act in the same man- 10 ner, by the same means, and with the same ju- 11 risdiction, powers, and duties as though all ap- 12 plicable terms and provisions of the Federal 13 Trade Commission Act (15 U.S.C. 41 et seq.) 14 were incorporated into and made a part of this 15 Act, and, except as provided in subparagraph 16 (B), any person who violates this Act or a regu- 17 lation prescribed under this Act shall be subject 18 to the penalties and entitled to the privileges 19 and immunities provided in the Federal Trade 20 Commission Act. 21 (B) PENALTIES.— 22 (i) IN GENERAL.—Notwithstanding 23 section 5(m) of the Federal Trade Com- 24 mission Act (15 U.S.C. 45(m)), a civil pen- 25 VerDate Sep 11 2014 04:12 May 30, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1578.IS S1578 kjohnson on DSK79L0C42 with BILLS 13 •S 1578 IS alty recovered for a violation of this Act or 1 a regulation prescribed under this Act may 2 be in excess of the amounts provided for in 3 that section, provided that such penal [Text truncated for display. 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