Senate 2326 IS
105th CONGRESS
2d Session
Senate 2326
To require the Federal Trade Commission to
prescribe regulations to protect the privacy of personal
information collected from and about children on the Internet,
to provide greater parental control over the collection and use
of that information, and for other purposes.
IN THE SENATE OF THE UNITED STATES
July 17, 1998
Mr. BRYAN (for himself and Mr. MCCAIN) introduced the following
bill; which was read twice and referred to the Committee on
Commerce, Science, and Transportation
A BILL
To require the Federal Trade Commission to prescribe regulations
to protect the privacy of personal information collected from
and about children on the Internet, to provide greater parental
control over the collection and use of that information, and for
other purposes.
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 Online Privacy Protection
Act of 1998'.
SEC. 2. DEFINITIONS.
In this Act:
(1) CHILD- The term `child' means an individual under the age of
16.
(2) CHILDREN- The term `children' means more than 1 child.
(3) COMMERCIAL WEBSITE OPERATOR- The term `commercial website
operator' means any person operating a website on the World Wide
Webs for commercial purposes, including any person offering
products or services for sale though that website, involving
commerce--
(A) among the several States or with 1 or more foreign nations;
(B) in any territory of the United States or in the District of
Columbia, or between any such territory--
(i) and another such territory; or
(ii) and any State or foreign nation; or
(C) between the District of Columbia and any State, territory, or
foreign nation.
(4) COMMISSION- The term `Commission' means the Federal Trade
Commission.
(5) DISCLOSURE- The term `disclosure' means, with respect to
personal information--
(A) the release of information in identifiable form by a person to
any other person for any purpose; or
(B) making publicly available information in identifiable form by
any means including by a public posting, through the use of a
computer on or through--
(i) a home page of a website;
(ii) a pen pal service;
(iii) an electronic mail service;
(iv) a message board; or
(v) a chat room.
(6) FEDERAL AGENCY- The term `Federal agency' means an agency, as
that term is defined in section 551(1) of title 5, United States
Code.
(7) INTERNET- The term `Internet' means the international computer
network of both Federal and non-Federal interoperable packet
switched data networks.
(8) PARENT- The term `parent' means a legal guardian, including a
biological or adoptive parent.
(9) PERSONAL INFORMATION- The term `personal information' means
individually, identifiable information about an individual,
including--
(A) a first and last name;
(B) a home or other physical address;
(C) an e-mail address;
(D) a telephone number;
(E) a Social Security number; or
(F) any other information that would facilitate or enable the
physical or online locating and contacting of a specific
individual, including information that is associated with an
identifier described in this paragraph in such manner as to
become identifiable to a specific individual.
(10) VERIFIABLE PARENTAL CONSENT- The term `verifiable parental
consent' means any reasonable effort (taking into consideration
available technology) to ensure that a parent of a child
authorizes the disclosure of personal information and subsequent
use of that information before that information is collected
from that child.
(11) WEBSITE DIRECTED TO CHILDREN- The term `website directed to
children'--
(A) means a commercial website that is--
(i) targeted to children;
(ii) directed to children by reason of the subject matter, visual
content, age of models, language, characters, tone, message, or
any other similar characteristic of the website; or
(iii) used by a commercial website operator to knowingly collect
information from children; and
(B) includes any commercial website any portion of which is
directed to children, as specified in subparagraph (A).
(12) PERSON- The term `person' means any individual, partnership,
corporation, trust, estate, cooperative, association, or other
entity.
SEC. 3. REGULATION OF UNFAIR AND DECEPTIVE ACTS AND PRACTICES IN
CONNECTION WITH THE COLLECTION AND USE OF PERSONAL INFORMATION
FROM AND ABOUT CHILDREN ON THE INTERNET.
(a) REGULATIONS-
(1) IN GENERAL- Not later than 1 year after the date of enactment
of this Act, the Commission shall, in a manner consistent with
section 553 of title 5, United States Code, prescribe
regulations requiring commercial website operators to follow
fair information practices in connection with the collection and
use of personal information from children.
(2) CONTENTS- The regulations issued under this subsection shall--
(A) require that any website directed to children that collects
personal information from children--
(i) provide clear, prominent, understandable notice of the
information collection and use practices of the website operator
through the website;
(ii) obtain verifiable parental consent for the collection, use,
or disclosure of personal information from children who are
under the age of 13;
(iii) use reasonable efforts to provide the parents with notice
and an opportunity to prevent or curtail the collection or use
of personal information collected from children over the age of
12 and under the age of 17;
(iv) provide a parent--
(I) access to the personal information of the child of that parent
collected by that website; and
(II) the opportunity to refuse to permit any further use or future
collection of personal information referred to in subclause (I)
and notice of that opportunity; and
(B) require that the commercial website operator concerned
establish and maintain reasonable procedures to ensure the
confidentiality, security, accuracy, and integrity of personal
information collected from children through the website.
(b) ENFORCEMENT-
(1) TREATMENT OF REGULATIONS- A regulation prescribed under
subsection (a) shall be treated as a rule defining an unfair or
deceptive act or practice under section 18(a)(1)(B) of the
Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
(2) ENFORCEMENT- Subject to section 6, a violation of a regulation
prescribed under subsection (a) shall be treated as a violation
of a rule defining an unfair or deceptive act or practice
prescribed under section 18(a)(1)(B) of the Federal Trade
Commission Act.
SEC. 4. SAFE HARBORS.
(a) IN GENERAL- In prescribing regulations under section 3, the
Commission shall provide incentives for efforts of
self-regulation by commercial website operators to
implement the protections described in subsection (a) of that
section.
(b) SAFE HARBORS- The incentives referred to in subsection (a)
shall include provisions for ensuring that a person will be
deemed to be in compliance with the requirements of the
regulations under section 3 if that person applies guidelines
that--
(1) are issued by appropriate representatives of the computer
industry; and
(2) are approved by the Commission upon making a determination
that the guidelines meet the requirements of the regulations
issued under section 3.
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 violates any
regulation of the Commission prescribed under section 3, 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 to--
(A) enjoin that practice;
(B) enforce compliance with the regulation;
(C) obtain damage, restitution, or other compensation on behalf of
residents of the State; or
(D) 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) EXEMPTION-
(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 paragraph (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 subparagraph (A), the Commission 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 Act 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
any regulation prescribed under section 3, 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 regulation.
(e) VENUE; SERVICE OF PROCESS-
(1) VENUE- Any action brought under subsection (a) may be brought
in the district court of the United States--
(A) in which the defendant--
(i) is found;
(ii) is an inhabitant; or
(iii) transacts business; or
(B) that otherwise 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.
(f) ACTIONS BY OTHER STATE OFFICIALS-
(1) IN GENERAL- Nothing in this section may be construed to
prohibit a State official from proceeding a court of the State
in accordance with the
laws of that State on the basis of an alleged violation of any
civil or criminal law of that State.
(2) CERTAIN ACTIONS IN STATE COURTS- In addition to any actions
brought by an attorney general of a State under subsection (a),
an action described in paragraph (1) may be brought by any other
officer of that State who is authorized by the State to bring
such an action in that State on behalf of the residents of the
State.
SEC. 6. ADMINISTRATION AND APPLICABILITY OF ACT.
(a) IN GENERAL- Except as otherwise provided, this Act shall be
enforced by the Commission under the Federal Trade Commission
Act (15 U.S.C. 41 et seq.).
(b) PROVISIONS- Compliance with the requirements imposed under
this subchapter 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 25(a) of the Federal Reserve Act (12 U.S.C.
601 et seq. and 611 et seq.), 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, 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 (a) of its powers under any
Act referred to in that subsection, a violation of any
requirement imposed under this Act shall be 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 (a), each of the agencies referred to in that
subsection may exercise, for the purpose of enforcing compliance
with any requirement imposed under this Act, any other authority
conferred on it by law.
(d) ACTIONS BY THE COMMISSION- The Commission shall prevent any
person from violating a rule of the Commission under section 3
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 such rule shall be 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 this
Act.
(e) EFFECT ON OTHER LAWS- Nothing contained in the Act shall be
construed to limit the authority of the Commission under any
other provisions of law.
SEC. 7. REVIEW.
(a) IN GENERAL- Not later than 5 years after the effective date of
the regulations initially issued under section 3, the Commission
shall--
(1) review the implementation of this Act, including the effect of
the implementation of this Act on practices relating to the
disclosure of information relating to children; and
(2) prepare and submit to Congress a report the results of the
review under paragraph (1).