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S.799 - Commercial Privacy Bill of Rights Act of 2011
A bill to establish a regulatory framework for the comprehensive protection of personal data for individuals under the aegis of the Federal Trade Commission, and for other purposes.
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To establish a regulatory framework for the comprehensive protection of personal data for individuals under the aegis of the Federal Trade Commission, and for other purposes.CommentsClose CommentsPermalink
To establish a regulatory framework for the comprehensive protection of personal data for individuals under the aegis of the Federal Trade Commission, and for other purposes.CommentsClose CommentsPermalink
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
TITLE I--RIGHT TO SECURITY AND ACCOUNTABILITY
TITLE II--RIGHT TO NOTICE AND INDIVIDUAL PARTICIPATION
TITLE III--RIGHTS RELATING TO DATA MINIMIZATION, CONSTRAINTS ON DISTRIBUTION, AND DATA INTEGRITY
TITLE V--CO-REGULATORY SAFE HARBOR PROGRAMS
TITLE VI--APPLICATION WITH OTHER FEDERAL LAWS
SEC. 2. FINDINGS.
(3) Persons interacting with others engaged in interstate commerce have a significant interest in their personal information, as well as a right to control how that information is collected, used, stored, or transferred.CommentsClose CommentsPermalink
(4) Persons engaged in interstate commerce and collecting personally identifiable information on individuals have a responsibility to treat that information with respect and in accordance with common standards.CommentsClose CommentsPermalink
(5) To the extent that States regulate the treatment of personally identifiable information, their efforts to address Internet privacy could lead to a patchwork of inconsistent standards and protections.CommentsClose CommentsPermalink
(6) On the day before the date of the enactment of this Act, the laws of the Federal Government and State and local governments provided inadequate privacy protection for individuals engaging in and interacting with persons engaged in interstate commerce.CommentsClose CommentsPermalink
(7) As of the day before the date of the enactment of this Act, with the exception of Federal Trade Commission enforcement of laws against unfair and deceptive practices, the Federal Government has eschewed general commercial privacy laws in favor of industry self-regulation, which has led to several self-policing schemes, some of which are enforceable, and some of which provide insufficient privacy protection to individuals.CommentsClose CommentsPermalink
(8) As of the day before the date of the enactment of this Act, many collectors of personally identifiable information have yet to provide baseline fair information practice protections for individuals.CommentsClose CommentsPermalink
(9) The ease of gathering and compiling personal information on the Internet and off, both overtly and surreptitiously, is becoming increasingly efficient and effortless due to advances in technology which have provided information gatherers the ability to compile seamlessly highly detailed personal histories of individuals.CommentsClose CommentsPermalink
(10) Personal information requires greater privacy protection than is available on the day before the date of the enactment of this Act. Vast amounts of personal information, including sensitive information, about individuals are collected on and off the Internet, often combined and sold or otherwise transferred to third parties, for purposes unknown to an individual to whom the personally identifiable information pertains.CommentsClose CommentsPermalink
(11) Toward the close of the 20th Century, as individuals’ personal information was increasingly collected, profiled, and shared for commercial purposes, and as technology advanced to facilitate these practices, Congress enacted numerous statutes to protect privacy.CommentsClose CommentsPermalink
(12) Those statutes apply to the government, telephones, cable television, e-mail, video tape rentals, and the Internet (but only with respect to children and law enforcement requests).CommentsClose CommentsPermalink
(13) As in those instances, the Federal Government has a substantial interest in creating a level playing field of protection across all collectors of personally identifiable information, both in the United States and abroad.CommentsClose CommentsPermalink
(14) The Federal Trade Commission has called private self regulation efforts as of the day before the date of the introduction of this Act inadequate. The Commission has also distinguished publishers’ first-party data collection practices from third-party practices related specifically to behavioral advertising. The Commission has noted that when dealing directly with an Internet website, consumers are likely to understand why they receive a recommendation or advertisement from that entity and may expect it.CommentsClose CommentsPermalink
(15) Enhancing individual privacy protection in a balanced way that establishes clear, consistent rules, both domestically and internationally, will stimulate commerce by instilling greater consumer confidence at home and greater confidence abroad as more and more entities digitize personally identifiable information, whether collected, stored, or used online or offline.CommentsClose CommentsPermalink
SEC. 3. DEFINITIONS.
(iii) Any information that is collected, used, or stored in connection with personally identifiable information or unique identifier information in a manner that may reasonably be used by the party collecting the information to identify a specific individual.CommentsClose CommentsPermalink
(4) ESTABLISHED BUSINESS RELATIONSHIP- The term ‘established business relationship’ means, with respect to a covered entity and a person, a relationship formed with or without the exchange of consideration, involving the establishment of an account by the person with the covered entity for the receipt of products or services offered by the covered entity.CommentsClose CommentsPermalink
(v) Precise geographic location, at the same degree of specificity as a global positioning system or equivalent system, and not including any general geographic information that may be derived from an Internet Protocol address.CommentsClose CommentsPermalink
(vi) Information about an individual’s quantity, technical configuration, type, destination, location, and amount of uses of voice services, regardless of technology used.CommentsClose CommentsPermalink
(vii) Any other information concerning an individual that may reasonably be used by the party using, collecting, or storing that information to identify that individual.CommentsClose CommentsPermalink
(A) personally identifiable information which, if lost, compromised, or disclosed without authorization either alone or with other information, carries a significant risk of economic or physical harm; orCommentsClose CommentsPermalink
(B) is not a service provider used by the covered entity to receive personally identifiable information or sensitive personally identifiable information in performing services or functions on behalf of and under the instruction of the covered entity; andCommentsClose CommentsPermalink
(C) does not have an established business relationship with the individual and does not identify itself to the individual at the time of collection of covered information in a clear and conspicuous manner that is visible to the individual.CommentsClose CommentsPermalink
(A) IN GENERAL- The term ‘unauthorized use’ means the use of covered information by a covered entity or its service provider for any purpose not authorized by the individual to whom such information relates.CommentsClose CommentsPermalink
(B) EXCEPTIONS- Except as provided in subparagraph (C), the term ‘unauthorized use’ does not include use of covered information relating to an individual by a covered entity or its service provider as follows:CommentsClose CommentsPermalink
(ii) To operate the covered entity that is providing a transaction or delivering a service requested by that individual, such as inventory management, financial reporting and accounting, planning, and product or service improvement or forecasting.CommentsClose CommentsPermalink
(vi) To market or advertise to an individual from a covered entity within the context of a covered entity’s own Internet website, services, or products if the covered information used for such marketing or advertising was--CommentsClose CommentsPermalink
(II) which the individual could have reasonably expected, at the time such relationship was established, was related to a service provided pursuant to such relationship; andCommentsClose CommentsPermalink
(C) SAVINGS- A use of covered information regarding an individual by a covered entity or its service provider may only be excluded under subparagraph (B) from the definition of ‘unauthorized use’ under subparagraph (A) if the use is reasonable and consistent with the practices and purposes described in the notice given the individual in accordance with section 201(a)(1).CommentsClose CommentsPermalink
(9) UNIQUE IDENTIFIER INFORMATION- The term ‘unique identifier information’ means a unique persistent identifier associated with an individual or a networked device, including a customer number held in a cookie, a user ID, a processor serial number, or a device serial number.CommentsClose CommentsPermalink
SEC. 101. SECURITY.
(a) Rulemaking Required- Not later than 180 days after the date of the enactment of this Act, the Commission shall initiate a rulemaking proceeding to require each covered entity to carry out security measures to protect the covered information it collects and maintains.CommentsClose CommentsPermalink
(b) Proportion- The requirements prescribed under subsection (a) shall provide for security measures that are proportional to the size, type, and nature of the covered information a covered entity collects.CommentsClose CommentsPermalink
(c) Consistency- The requirements prescribed under subsection (a) shall be consistent with guidance provided by the Commission and recognized industry practices for safety and security on the day before the date of the enactment of this Act.CommentsClose CommentsPermalink
SEC. 102. ACCOUNTABILITY.
(1) have managerial accountability, proportional to the size and structure of the covered entity, for the adoption and implementation of policies consistent with this Act;CommentsClose CommentsPermalink
(2) have a process to respond to non-frivolous inquiries from individuals regarding the collection, use, transfer, or storage of covered information relating to such individuals; andCommentsClose CommentsPermalink
SEC. 103. PRIVACY BY DESIGN.
Each covered entity shall, in a manner proportional to the size, type, and nature of the covered information that it collects, implement a comprehensive information privacy program by--CommentsClose CommentsPermalink
(1) incorporating necessary development processes and practices throughout the product life cycle that are designed to safeguard the personally identifiable information that is covered information of individuals based on--CommentsClose CommentsPermalink
SEC. 201. TRANSPARENT NOTICE OF PRACTICES AND PURPOSES.
(a) In General- Not later than 60 days after the date of the enactment of this Act, the Commission shall initiate a rulemaking proceeding to require each covered entity--CommentsClose CommentsPermalink
(2) may provide that a covered entity unable to provide the required notice when information is collected may comply with the requirement of subsection (a)(1) by providing an alternative time and means for an individual to receive the required notice promptly;CommentsClose CommentsPermalink
(3) may draft guidance for covered entities to use in designing their own notice and may include a draft model template for covered entities to use in designing their own notice; andCommentsClose CommentsPermalink
SEC. 202. INDIVIDUAL PARTICIPATION.
(a) In General- Not later than 180 days after the date of the enactment of this Act, the Commission shall initiate a rulemaking proceeding to require each covered entity--CommentsClose CommentsPermalink
(1) to offer individuals a clear and conspicuous mechanism for opt-out consent for any use of their covered information that would otherwise be unauthorized use, except with respect to any use requiring opt-in consent under paragraph (3);CommentsClose CommentsPermalink
(2) to offer individuals a robust, clear, and conspicuous mechanism for opt-out consent for the use by third parties of the individuals’ covered information for behavioral advertising or marketing;CommentsClose CommentsPermalink
(4) to provide any individual to whom the personally identifiable information that is covered information pertains, and which the covered entity or its service provider stores, appropriate and reasonable--CommentsClose CommentsPermalink
(5) in the case that a covered entity enters bankruptcy or an individual requests the termination of a service provided by the covered entity to the individual or termination of some other relationship with the covered entity, to permit the individual to easily request that--CommentsClose CommentsPermalink
(A) all of the personally identifiable information that is covered information that the covered entity maintains relating to the individual, except for information the individual authorized the sharing of or which the individual shared with the covered entity in a forum that is widely and publicly available, be rendered not personally identifiable; orCommentsClose CommentsPermalink
(B) if rendering such information not personally identifiable is not possible, to cease the unauthorized use or transfer to a third party for an unauthorized use of such information or to cease use of such information for marketing, unless such unauthorized use or transfer is otherwise required by a provision of law.CommentsClose CommentsPermalink
(b) Unauthorized Use Transfers- In the rulemaking required by subsection (a), the Commission shall provide that with respect to transfers of covered information to a third party for which an individual provides opt-in consent, the third party to which the information is transferred may not use such information for any unauthorized use other than a use--CommentsClose CommentsPermalink
(c) Alternative Means To Terminate Use of Covered Information- In the rulemaking required by subsection (a), the Commission shall allow a covered entity to provide individuals an alternative means, in lieu of the access, consent, and correction requirements, of prohibiting a covered entity from use or transfer of that individual’s covered information.CommentsClose CommentsPermalink
(1) IN GENERAL- The use of a service provider by a covered entity to receive covered information in performing services or functions on behalf of and under the instruction of the covered entity does not constitute an unauthorized use of such information by the covered entity if the covered entity and the service provider execute a contract that requires the service provider to collect, use, and store the information on behalf of the covered entity in a manner consistent with--CommentsClose CommentsPermalink
(2) TRANSFERS BETWEEN SERVICE PROVIDERS FOR A COVERED ENTITY- The disclosure by a service provider of covered information pursuant to a contract with a covered entity to another service provider in order to perform the same service or functions for that covered entity does not constitute an unauthorized use.CommentsClose CommentsPermalink
(3) LIABILITY REMAINS WITH COVERED ENTITY- A covered entity remains responsible and liable for the protection of covered information that has been transferred to a service provider for processing, notwithstanding any agreement to the contrary between a covered entity and the service provider.CommentsClose CommentsPermalink
SEC. 301. DATA MINIMIZATION.
(B) for the covered entity to provide a transaction or delivering a service requested by such individual, such as inventory management, financial reporting and accounting, planning, product or service improvement or forecasting, and customer support and service;CommentsClose CommentsPermalink
(F) for the covered entity to market or advertise to such individual if the covered information used for such marketing or advertising was collected directly by the covered entity;CommentsClose CommentsPermalink
SEC. 302. CONSTRAINTS ON DISTRIBUTION OF INFORMATION.
(2) require by contract that such third party may not combine information that the covered entity has transferred to it, that relates to an individual, and that is not personally identifiable information with other information in order to identify such individual, unless the covered entity has obtained the opt-in consent of such individual for such combination and identification; andCommentsClose CommentsPermalink
(1) IN GENERAL- Except as provided in paragraph (2), a third party that receives covered information from a covered entity shall be subject to the provisions of this Act as if it were a covered entity.CommentsClose CommentsPermalink
(2) EXEMPTION- The Commission may, as it determines appropriate, exempt classes of third parties from liability under any provision of title II if the Commission finds that--CommentsClose CommentsPermalink
(B) with respect to covered information relating to individuals that is transferred to such class, compliance by such class with such provision would not sufficiently benefit such individuals.CommentsClose CommentsPermalink
SEC. 303. DATA INTEGRITY.
(a) In General- Each covered entity shall attempt to establish and maintain reasonable procedures to ensure that personally identifiable information that is covered information and maintained by the covered entity is accurate in those instances where the covered information could be used to deny consumers benefits or cause significant harm.CommentsClose CommentsPermalink
SEC. 401. GENERAL APPLICATION.
(B) a common carrier subject to the Communications Act of 1934 (
(C) a non-profit organization, including any organization described in section 501(c) of the Internal Revenue code of 1986 that is exempt from taxation under section 501(a) of such Code, notwithstanding the definition of the term ‘Acts to regulate commerce’ in section 4 of the Federal Trade Commission Act (
SEC. 402. ENFORCEMENT BY THE FEDERAL TRADE COMMISSION.
(a) Unfair or Deceptive Acts or Practices- A knowing or repetitive violation of a provision of this Act or a regulation promulgated under this Act shall be treated as an unfair or deceptive act or practice in violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act (
(1) IN GENERAL- The Commission shall enforce this Act 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 (
(2) SPECIAL RULE- The Commission shall enforce this Act under paragraph (1) of this subsection with respect to common carriers and non-profit organizations described in section 401 to the extent necessary to effectuate the purposes of this Act as if such carriers and non-profit organizations were persons over which the Commission has authority pursuant to section 5(a)(2) of the Federal Trade Commission Act (
(1) LIMITATION- In promulgating rules under this Act, the Commission may not require the deployment or use of any specific products or technologies, including any specific computer software or hardware.CommentsClose CommentsPermalink
SEC. 403. ENFORCEMENT BY STATE ATTORNEYS GENERAL.
(a) Civil Action- 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 adversely affected by a covered entity who violates any part of this Act in a manner that results in economic or physical harm to an individual or engages in a pattern or practice that violates any part of this Act other than title III, the attorney general may, as parens patriae, bring a civil action on behalf of the residents of the State in an appropriate district court of the United States--CommentsClose CommentsPermalink
(A) IN GENERAL- Except as provided in subparagraph (C), the attorney general of a State shall notify the Federal Trade Commission in writing of any civil action under subsection (b), prior to initiating such civil action.CommentsClose CommentsPermalink
(C) EXCEPTION- If it is not feasible for the attorney general of a State to provide the notice required by subparagraph (A), the State shall provide notice immediately upon instituting a civil action under subsection (b).CommentsClose CommentsPermalink
(c) Preemptive Action by Federal Trade Commission- If the Federal Trade Commission institutes a civil action for violation of this Act or a regulation promulgated under this Act, no attorney general of a State may bring a civil action under subsection (a) against any defendant named in the complaint of the Commission for violation of this Act or a regulation promulgated under this Act that is alleged in such complaint.CommentsClose CommentsPermalink
(d) Investigatory Powers- Nothing in this section may be construed to prevent the attorney general of a State from exercising the powers conferred on such attorney general by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence.CommentsClose CommentsPermalink
SEC. 404. CIVIL PENALTIES.
(a) In General- In an action brought under section 403, in addition to any other penalty otherwise applicable to a violation of this Act or any regulation promulgated under this Act, the following civil penalties shall apply:CommentsClose CommentsPermalink
(1) TITLE I VIOLATIONS- A covered entity that knowingly or repeatedly violates title I is liable for a civil penalty equal to the amount calculated by multiplying the number of days that the entity is not in compliance with such title by an amount not to exceed $16,500.CommentsClose CommentsPermalink
(2) TITLE II VIOLATIONS- A covered entity that knowingly or repeatedly violates title II is liable for a civil penalty equal to the amount calculated by multiplying the number of days that such an entity is not in compliance with such title, or the number of individuals for whom the entity failed to obtain consent as required by such title, whichever is greater, by an amount not to exceed $16,500.CommentsClose CommentsPermalink
(b) Adjustment for Inflation- Beginning on the date that the Consumer Price Index for All Urban Consumers is first published by the Bureau of Labor Statistics that is after 1 year after the date of the enactment of this Act, and each year thereafter, each of the amounts specified in subsection (a) shall be increased by the percentage increase in the Consumer Price Index published on that date from the Consumer Price Index published the previous year.CommentsClose CommentsPermalink
(c) Maximum Total Liability- Notwithstanding the number of actions which may be brought against a covered entity under section 403, the maximum civil penalty for which any covered entity may be liable under this section in such actions shall not exceed--CommentsClose CommentsPermalink
SEC. 405. EFFECT ON OTHER LAWS.
(a) Preemption of State Laws- The provisions of this Act shall supersede any provisions of the law of any State relating to those entities covered by the regulations issued pursuant to this Act, to the extent that such provisions relate to the collection, use, or disclosure of--CommentsClose CommentsPermalink
(1) UNAUTHORIZED ACTIONS- No person other than a person specified in section 403 may bring a civil action under the laws of any State if such action is premised in whole or in part upon the defendant violating this Act or a regulation promulgated under this Act.CommentsClose CommentsPermalink
(c) Rule of Construction Relating to Required Disclosures to Government Entities- This Act shall not be construed to expand or limit the duty or authority of a covered entity or third party to disclose personally identifiable information to a government entity under any provision of law.CommentsClose CommentsPermalink
SEC. 406. NO PRIVATE RIGHT OF ACTION.
SEC. 501. ESTABLISHMENT OF SAFE HARBOR PROGRAMS.
(a) In General- Not later than 365 days after the date of the enactment of this Act, the Commission shall initiate a rulemaking proceeding to establish requirements for the establishment and administration of safe harbor programs under which a nongovernmental organization will administer a program that--CommentsClose CommentsPermalink
(2) offers consumers a clear, conspicuous, persistent, and effective means of opting out of the transfer of covered information by a covered entity participating in the safe harbor program to a third party for--CommentsClose CommentsPermalink
(1) SUBMITTAL OF APPLICATIONS- An applicant seeking to administer a program under the requirements established pursuant to subsection (a) shall submit to the Commission an application therefor at such time, in such manner, and containing such information as the Commission may require.CommentsClose CommentsPermalink
(3) SELECTION- Not later than 270 days after the date on which the Commission receives a completed application under this subsection, the Commission shall grant or deny the application on the basis of the Commission’s evaluation of the applicant’s capacity to provide protection of individuals’ covered information with regard to specific types of unauthorized uses of covered information as described in subsection (a)(2) that is substantially equivalent to or superior to the protection otherwise provided under this Act.CommentsClose CommentsPermalink
(4) WRITTEN FINDINGS- Any decision reached by the Commission under this subsection shall be accompanied by written findings setting forth the basis for and reasons supporting such decision.CommentsClose CommentsPermalink
(c) Scope of Safe Harbor Protection- The scope of protection offered by safe harbor programs approved by the Commission that establish mechanisms for participants to implement the requirements of the Act only for certain uses of covered information as described in subsection (a)(2) shall be limited to participating entities’ use of those particular types of covered information.CommentsClose CommentsPermalink
(2) ANNUAL REPORTS BY NONGOVERNMENTAL ORGANIZATIONS- Each year, each nongovernmental organization administering a safe harbor program under this section shall submit to the Commission a report on its activities under this title during the preceding year.CommentsClose CommentsPermalink
SEC. 502. PARTICIPATION IN SAFE HARBOR PROGRAM.
(a) Exemption- Any covered entity that participates in, and demonstrates compliance with, a safe harbor program administered under section 501 shall be exempt any provision of title II or title III if the Commission finds that the requirements of the safe harbor program are substantially the same as or more protective of privacy of individuals than the requirements of the provision from which the exemption is granted.CommentsClose CommentsPermalink
(b) Limitation- Nothing in this title shall be construed to exempt any covered entity participating in a safe harbor program from compliance with any other requirement of the regulations promulgated under this Act for which the safe harbor does not provide an exception.CommentsClose CommentsPermalink
SEC. 601. APPLICATION WITH OTHER FEDERAL LAWS.
(a) Qualified Exemption for Persons Subject to Other Federal Privacy Laws- If a person is subject to a provision of this Act and a provision of a Federal privacy law described in subsection (d), such provision of this Act shall not apply to such person to the extent that such provision of Federal privacy law applies to such person.CommentsClose CommentsPermalink
(b) Protection of Other Federal Privacy Laws- Nothing in this Act may be construed to modify, limit, or supersede the operation of the Federal privacy laws described in subsection (d) or the provision of information permitted or required, expressly or by implication, by such laws, with respect to Federal rights and practices.CommentsClose CommentsPermalink
(c) Communications Infrastructure and Privacy- If a person is subject to a provision of section 222 or 631 of the Communications Act of 1934 (
(12) The regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (
(1) convening private sector stakeholders, including members of industry, civil society groups, academia, in open forums, to develop codes of conduct in support of applications for safe harbor programs under title V;CommentsClose CommentsPermalink