Banning Microtargeted Political Ads Act

I 116TH CONGRESS 2D SESSION H. R. 7014 To amend the Federal Election Campaign Act of 1971 to prohibit online platforms from disseminating political advertisements which are targeted to an individual or to a group of individuals on any basis other than the recognized place in which the individual or group resides, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 26, 2020 Ms. ESHOO introduced the following bill; which was referred to the Committee on House Administration A BILL To amend the Federal Election Campaign Act of 1971 to prohibit online platforms from disseminating political ad- vertisements which are targeted to an individual or to a group of individuals on any basis other than the recog- nized place in which the individual or group resides, 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 ‘‘Banning Microtargeted 4 Political Ads Act’’. 5 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 7014 IH SEC. 2. RESTRICTIONS ON DISSEMINATION OF TARGETED 1 POLITICAL ADVERTISEMENTS BY ONLINE 2 PLATFORMS. 3 (a) RESTRICTIONS.— 4 (1) IN GENERAL.—Title III of the Federal 5 Election Campaign Act of 1971 (52 U.S.C. 30101 et 6 seq.) is amended by adding at the end the following 7 new section: 8 ‘‘SEC. 325. RESTRICTIONS ON DISSEMINATION OF TAR- 9 GETED POLITICAL ADVERTISEMENTS BY ON- 10 LINE PLATFORMS. 11 ‘‘(a) RESTRICTIONS ON ADVERTISEMENTS TAR- 12 GETED AT INDIVIDUALS OR AT SPECIFIC GROUPS OF IN- 13 DIVIDUALS.— 14 ‘‘(1) RESTRICTIONS.—A covered online plat- 15 form or an agent, affiliate, vendor, or other person 16 acting on behalf of such a platform may not target 17 the dissemination of a political advertisement on 18 such platform to an individual or to a specific group 19 of individuals on any basis. 20 ‘‘(2) ACTIONS CONSTITUTING TARGETING.—A 21 covered online platform or an agent, affiliate, ven- 22 dor, or other person acting on behalf of such a plat- 23 form shall be considered to target the dissemination 24 of a political advertisement to an individual or to a 25 specific group of individuals if such platform— 26 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 7014 IH ‘‘(A) performs or causes to perform any 1 computational process (including one based on 2 algorithmic models, machine learning, statistical 3 analysis, or other data processing or artificial 4 intelligence techniques) designed to transmit or 5 display the advertisement to a subset of the 6 users of such platform selected based on per- 7 sonal information pertaining to the individuals 8 who make up the subset of users; or 9 ‘‘(B) allows another person to instruct a 10 covered online platform to display the advertise- 11 ment to a subset of the users of such platform, 12 including by providing to such platform a list of 13 individuals, contact information of individuals, 14 or other personal information that can be used 15 to identify individuals. 16 ‘‘(b) EXCEPTIONS.— 17 ‘‘(1) TARGETING TO INDIVIDUALS WITHIN REC- 18 OGNIZED PLACE.—Subsection (a) does not apply to 19 the targeting of the dissemination of a political ad- 20 vertisement to an individual residing in, or to a de- 21 vice located in, a recognized place. 22 ‘‘(2) TARGETING TO INDIVIDUALS GIVING EX- 23 PRESS CONSENT.—Subsection (a) does not apply to 24 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 7014 IH the targeting of the dissemination of a political ad- 1 vertisement to an individual if— 2 ‘‘(A) the sponsor of the advertisement pro- 3 vides the covered online platform with a truth- 4 ful written attestation that the individual has 5 provided express affirmative consent to— 6 ‘‘(i) receive a targeted political adver- 7 tisement from the sponsor; and 8 ‘‘(ii) allow the sponsor to disclose per- 9 sonal information pertaining to the indi- 10 vidual to another person for the purpose of 11 advertising; 12 ‘‘(B) the attestation includes a statement 13 affirming that the consent provided by the indi- 14 vidual was freely given, specific, informed, un- 15 ambiguous, not received through or by the aid 16 of the covered online platform, and has not 17 been revoked by such individual; and 18 ‘‘(C) the sponsor certifies to the platform 19 that the sponsor permits an individual who pro- 20 vides consent to easily revoke such consent. 21 ‘‘(c) RULES OF CONSTRUCTION.— 22 ‘‘(1) TARGETING ON RANDOM BASIS.—Nothing 23 in subsection (a) shall be construed to prohibit the 24 dissemination of a political advertisement to an indi- 25 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 7014 IH vidual or to a specific group of individuals on a ran- 1 dom basis, including on a random basis under any 2 of the exceptions described in subsection (b). 3 ‘‘(2) RULE OF CONSTRUCTION FOR OPT- 4 OUTS.—Nothing in subsection (b) shall be construed 5 to require or authorize a covered online platform, a 6 sponsor of a political advertisement, or an agent, af- 7 filiate, vendor, or other person acting on behalf of 8 such a platform or sponsor to disseminate a political 9 advertisement to an individual who has opted out of 10 receiving a political advertisement or any other form 11 of communication from the platform, the sponsor, or 12 any agent, affiliate, vendor, or other person acting 13 on behalf of the platform or sponsor, including opt- 14 ing out of receiving a specific type of advertisement 15 or communication, an advertisement or communica- 16 tion from a particular sponsor, or any other opt-out 17 preference. 18 ‘‘(d) PRIVATE RIGHT OF ACTION.— 19 ‘‘(1) ENFORCEMENT BY INDIVIDUALS.— 20 ‘‘(A) IN GENERAL.—Any person alleging a 21 violation of this section by a covered online 22 platform may bring a civil action in any court 23 of competent jurisdiction, State or Federal. 24 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 7014 IH ‘‘(B) RELIEF.—In a civil action brought 1 under this paragraph in which the plaintiff pre- 2 vails, the court may award— 3 ‘‘(i) an amount not less than $100 4 and not greater than $1,000 per violation 5 against any person who negligently violates 6 a provision of this section; 7 ‘‘(ii) an amount not less than $500 8 and not greater than $5,000 per violation 9 against any person who recklessly, will- 10 fully, or intentionally violates a provision of 11 this section; 12 ‘‘(iii) reasonable attorney’s fees and 13 litigation costs; and 14 ‘‘(iv) any other relief, including equi- 15 table or declaratory relief, that the court 16 determines appropriate. 17 ‘‘(C) INJURY IN FACT.—A violation of this 18 section constitutes a concrete and particularized 19 injury in fact to an individual. 20 ‘‘(2) INVALIDITY OF PRE-DISPUTE ARBITRA- 21 TION AGREEMENTS AND PRE-DISPUTE JOINT ACTION 22 WAIVERS.— 23 ‘‘(A) IN GENERAL.—Notwithstanding any 24 other provision of law, no pre-dispute arbitra- 25 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 7014 IH tion agreement or pre-dispute joint action waiv- 1 er shall be valid or enforceable with respect to 2 a dispute arising under this section. 3 ‘‘(B) APPLICABILITY.—Any determination 4 as to whether or how this subsection applies to 5 any dispute shall be made by a court, rather 6 than an arbitrator, without regard to whether 7 such agreement purports to delegate such deter- 8 mination to an arbitrator. 9 ‘‘(C) DEFINITIONS.—In this subsection: 10 ‘‘(i) PRE-DISPUTE ARBITRATION 11 AGREEMENT.—The term ‘pre-dispute arbi- 12 tration agreement’ means any agreement 13 to arbitrate a dispute that has not arisen 14 at the time of making the agreement. 15 ‘‘(ii) PRE-DISPUTE JOINT-ACTION 16 WAIVER.—The term ‘pre-dispute joint-ac- 17 tion waiver’ means an agreement, whether 18 or not part of a pre-dispute arbitration 19 agreement, that would prohibit, or waive 20 the right of, one of the parties to the 21 agreement to participate in a joint, class, 22 or collective action in a judicial, arbitral, 23 administration, or other forum, concerning 24 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 7014 IH a dispute that has not yet arisen at the 1 time of making the agreement. 2 ‘‘(iii) DISPUTE.—The term ‘dispute’ 3 means any claim related to an alleged vio- 4 lation of this section and between an indi- 5 vidual and a covered organization. 6 ‘‘(e) DEFINITIONS.—In this section: 7 ‘‘(1) COVERED ONLINE PLATFORM.—The term 8 ‘covered online platform’ means any website, web ap- 9 plication, mobile application, smart device applica- 10 tion, digital application (including a social network, 11 or search engine), or advertising network (including 12 a network disseminating advertisements on another 13 website, web application, mobile application, smart 14 device application, or digital application) that re- 15 ceives payment to disseminate political advertise- 16 ments, except that such term does not include a 17 website, application, or network (in combination with 18 any subsidiaries and affiliates of such a website, ap- 19 plication, or network) that, during the 12-month pe- 20 riod ending on the date of the dissemination of the 21 political advertisement involved, collected or proc- 22 essed personal information pertaining to fewer than 23 50,000,000 individuals. 24 ‘‘(2) INDIAN LANDS.— 25 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 7014 IH ‘‘(A) INDIAN LANDS.—In this section, the 1 term ‘Indian lands’ includes— 2 ‘‘(i) any Indian country of an Indian 3 Tribe, as defined under section 1151 of 4 title 18, United States Code; 5 ‘‘(ii) any land in Alaska owned, pursu- 6 ant to the Alaska Native Claims Settle- 7 ment Act (43 U.S.C. 1601 et seq.), by an 8 Indian Tribe that is a Native village (as 9 defined in section 3 of that Act (43 U.S.C. 10 1602)) or by a Village Corporation that is 11 associated with an Indian Tribe (as de- 12 fined in section 3 of that Act (43 U.S.C. 13 1602)); 14 ‘‘(iii) any land on which the seat of 15 the Tribal Government is located; and 16 ‘‘(iv) any land that is part or all of a 17 Tribal designated statistical area associ- 18 ated with an Indian Tribe, or is part or all 19 of an Alaska Native village statistical area 20 associated with an Indian Tribe, as defined 21 by the Census Bureau for the purposes of 22 the most recent decennial census. 23 ‘‘(B) OTHER DEFINITIONS.—In subpara- 24 graph (A)— 25 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 7014 IH ‘‘(i) the term ‘Indian’ has the mean- 1 ing given the term in section 4 of the In- 2 dian Self-Determination and Education 3 Assistance Act (25 U.S.C. 5304); 4 ‘‘(ii) the term ‘Indian Tribe’ has the 5 meaning given the term ‘Indian tribe’ in 6 section 4 of the Indian Self-Determination 7 and Education Assistance Act (25 U.S.C. 8 5304); and 9 ‘‘(iii) the term ‘Tribal Government’ 10 means the recognized governing body of an 11 Indian Tribe. 12 ‘‘(3) PERSONAL INFORMATION.—The term ‘per- 13 sonal information’ means any information that is 14 linked or reasonably linkable to a specific individual 15 or a specific device, including de-identified informa- 16 tion. 17 ‘‘(4) POLITICAL ADVERTISEMENT.—The term 18 ‘political advertisement’ means— 19 ‘‘(A) an electioneering communication (as 20 defined in section 304(f)(3)); 21 ‘‘(B) an independent expenditure; or 22 ‘‘(C) a public communication that refers to 23 a clearly identified candidate for Federal office 24 (regardless of whether a candidate for State or 25 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 7014 IH local office is also mentioned or identified) and 1 that promotes or supports a candidate for that 2 office, or attacks or opposes a candidate for 3 that office (regardless of whether the commu- 4 nication expressly advocates a vote for or 5 against a candidate). 6 ‘‘(5) RECOGNIZED PLACE.—The term ‘recog- 7 nized place’ means any of the following: 8 ‘‘(A) Each State, the District of Columbia, 9 the Commonwealth of Puerto Rico, Guam, 10 American Samoa, the Commonwealth of the 11 Northern Mariana Islands, and the United 12 States Virgin Islands. 13 ‘‘(B) Indian lands. 14 ‘‘(C) A county, municipality, city, town, 15 township, village, borough, or similar unit of 16 general government that is— 17 ‘‘(i) incorporated pursuant to a State 18 law; or 19 ‘‘(ii) is an ‘incorporated place’ (as 20 such term is defined in the most recent 21 glossary of the Census Bureau). 22 ‘‘(D) A ‘census designated place’ (as such 23 term is defined in the most recent glossary of 24 the Census Bureau). 25 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H7014.IH H7014 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 7014 IH ‘‘(E) A congressional district.’’. 1 (2) EFFECTIVE DATE.—The amendment made 2 by paragraph (1) shall take effect 3 months after 3 the date of the enactment of this Act. 4 (b) EXPANSION OF CERTAIN DEFINITIONS.— 5 (1) EXPANSION OF THE DEFINITION OF ELEC- 6 TIONEERING COMMUNICATION.— 7 (A) APPLICATION TO QUALIFIED INTER- 8 NET AND DIGITAL COMMUNICATIONS.— 9 (i) IN GENERAL.—Subparagraph (A) 10 of section 304(f)(3) of the Federal Election 11 Campaign Act of 1971 (52 U.S.C. 12 30104(f)(3)(A)) is amended by striking 13 ‘‘or satellite communication’’ each place it 14 appears in clauses (i) and (ii) and insert- 15 ing ‘‘satellite, or qualified internet or dig- 16 ital communication’’. 17 (ii) QUALIFIED INTERNET OR DIGITAL 18 COMMUNICATION.—Paragraph (3) of sec- 19 tion 304(f) of such Act (52 U.S.C. 20 30104(f)) is amended by adding at the end 21 the following new subparagraph: 22 ‘‘(D) QUALIFIED INTERNET OR DIGITAL 23 COMMUNICATION.—The term ‘qualified internet 24 or digital communication’ means any commu- 25 VerDate Sep 11 2014 01:23 Jun 18, 2020 Jkt 099200 PO 000 [Text truncated for display. Full text available on Congress.gov.]