BAD ADS Act

II 116TH CONGRESS 2D SESSION S. 4337 To amend the Communications Act of 1934 to stop granting immunity sub- sidies to companies that engage in behavioral advertising, and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 28, 2020 Mr. HAWLEY introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To amend the Communications Act of 1934 to stop granting immunity subsidies to companies that engage in behav- ioral advertising, 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 ‘‘Behavioral Advertising 4 Decisions Are Downgrading Services Act’’ or the ‘‘BAD 5 ADS Act’’. 6 VerDate Sep 11 2014 04:02 Aug 10, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4337.IS S4337 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4337 IS SEC. 2. LIMITATION ON IMMUNITY. 1 (a) IN GENERAL.—Section 230(c) of the Communica- 2 tions Act of 1934 (47 U.S.C. 230(c)) is amended by add- 3 ing at the end the following: 4 ‘‘(3) LIMITATION ON PROTECTION.— 5 ‘‘(A) DEFINITIONS.—In this paragraph— 6 ‘‘(i) the term ‘advertisement server’ 7 means a person that serves or delivers ad- 8 vertisements to a user of a website, online 9 service, online application, or mobile appli- 10 cation; 11 ‘‘(ii) the term ‘behavioral adver- 12 tising’— 13 ‘‘(I) means a form of advertising 14 in which an advertisement is displayed 15 to a user of an interactive computer 16 service based on— 17 ‘‘(aa) the personal traits of 18 the user; 19 ‘‘(bb) previous location in- 20 formation with respect to the 21 user; 22 ‘‘(cc) personal information 23 from a profile about the user 24 that is created for the purpose of 25 selling advertisements; or 26 VerDate Sep 11 2014 04:02 Aug 10, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4337.IS S4337 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4337 IS ‘‘(dd) the previous online or 1 offline behavior of the user; and 2 ‘‘(II) does not include contextual 3 advertising, such as advertising that is 4 directed to a user based on— 5 ‘‘(aa) the content of the 6 website, online service, online ap- 7 plication, or mobile application to 8 which the user is connected; 9 ‘‘(bb) the location of the 10 user, as of the time at which the 11 advertising is directed to the 12 user; or 13 ‘‘(cc) the search terms that 14 the user applied to arrive at the 15 website, service, or application to 16 which the user is connected; and 17 ‘‘(iii) the term ‘covered provider’— 18 ‘‘(I) means an entity that— 19 ‘‘(aa) provides an interactive 20 computer service— 21 ‘‘(AA) through a 22 website, online application, 23 or mobile application (in- 24 cluding a single interactive 25 VerDate Sep 11 2014 04:02 Aug 10, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4337.IS S4337 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4337 IS computer service that is pro- 1 vided through more than 1 2 such website or application); 3 ‘‘(BB) through which 4 information provided by an- 5 other information content 6 provider is distributed; and 7 ‘‘(CC) that, in any 8 month during the most re- 9 cently completed 12-month 10 period, more than 11 30,000,000 users in the 12 United States (or more than 13 300,000,000 users world- 14 wide) accessed, without re- 15 gard to the means by which 16 the users accessed the serv- 17 ice; and 18 ‘‘(bb) during the most re- 19 cently completed taxable year, 20 had more than $1,500,000,000 in 21 global revenue; and 22 ‘‘(II) does not include an organi- 23 zation described in section 501(c) of 24 the Internal Revenue Code of 1986 25 VerDate Sep 11 2014 04:02 Aug 10, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4337.IS S4337 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4337 IS that is exempt from taxation under 1 section 501(a) of such Code. 2 ‘‘(B) APPLICABILITY.—The protections 3 provided under paragraphs (1) and (2) shall not 4 apply with respect to a covered provider for any 5 claim arising during the 30-day period begin- 6 ning on the date on which the covered pro- 7 vider— 8 ‘‘(i) displays behavioral advertising to 9 a user of the interactive computer service 10 described in subparagraph (A)(iii)(I)(aa) 11 provided by the covered provider; or 12 ‘‘(ii) provides data regarding a user of 13 the interactive computer service described 14 in clause (i) to another person knowing 15 that the other person will use that data to 16 create or display behavioral advertising. 17 ‘‘(C) LIABILITY OF ADVERTISEMENT SERV- 18 ERS IN PLACE OF COVERED PROVIDERS.—An 19 advertisement server shall be held liable for any 20 claim brought against a covered provider be- 21 cause of the application of subparagraph (B) if, 22 after the covered provider directs the advertise- 23 ment server not to serve or deliver behavioral 24 advertising to users of the interactive computer 25 VerDate Sep 11 2014 04:02 Aug 10, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4337.IS S4337 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4337 IS service described in subparagraph (A)(iii)(I)(aa) 1 provided by the covered provider (or if the ad- 2 vertisement server fails to provide reasonably 3 accessible means to receive that direction from 4 the covered provider), the covered provider un- 5 knowingly takes the action described in sub- 6 paragraph (B)(i) because of an action taken by 7 the advertisement server, including the failure 8 of the advertisement server to provide the cov- 9 ered provider with a conspicuous disclosure re- 10 garding the category of advertisements to be 11 displayed.’’. 12 (b) EFFECTIVE DATE.—This section, and the amend- 13 ments made by this section, shall take effect on the date 14 that is 180 days after the date of enactment of this Act. 15 Æ VerDate Sep 11 2014 04:02 Aug 10, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6301 E:\BILLS\S4337.IS S4337 kjohnson on DSK79L0C42PROD with BILLS