Home > 107th Congressional Bills > S. 746 (is) Expressing the policy of the United States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity, and for other purposes. [Intro...

S. 746 (is) Expressing the policy of the United States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity, and for other purposes. [Intro...

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  1st Session
                                 S. 745

To require the consent of an individual prior to the sale and marketing 
of such individual's personally identifiable information, and for other 



                             March 31, 2003

Mrs. Feinstein introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary


                                 A BILL

To require the consent of an individual prior to the sale and marketing 
of such individual's personally identifiable information, and for other 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,


    (a) Short Title.--This Act may be cited as the ``Privacy Act of 
    (b) Table of Contents.--The table of contents of this Act is as 

Sec. 1. Short title; table of contents.

Sec. 101. Collection and distribution of personally identifiable 
Sec. 102. Enforcement.
Sec. 103. Safe harbor.
Sec. 104. Definitions.
Sec. 105. Preemption.
Sec. 106. Effective Date.

Sec. 201. Findings.
Sec. 202. Prohibition of the display, sale, or purchase of social 
                            security numbers.
Sec. 203. Application of prohibition of the display, sale, or purchase 
                            of social security numbers to public 
Sec. 204. Rulemaking authority of the Attorney General.
Sec. 205. Treatment of social security numbers on government documents.
Sec. 206. Limits on personal disclosure of a social security number for 
                            consumer transactions.
Sec. 207. Extension of civil monetary penalties for misuse of a social 
                            security number.
Sec. 208. Criminal penalties for the misuse of a social security 
Sec. 209. Civil actions and civil penalties.
Sec. 210. Federal injunctive authority.
                         FINANCIAL INFORMATION

Sec. 301. Definition of sale.
Sec. 302. Rules applicable to sale of nonpublic personal information.
Sec. 303. Exceptions to disclosure prohibition.
Sec. 304. Conforming amendments.
Sec. 305. Regulatory authority.
Sec. 306. Effective date.

Sec. 401. Definitions.
Sec. 402. Prohibition against selling protected health information.
Sec. 403. Authorization for sale or marketing of protected health 
                            information by noncovered entities.
Sec. 404. Prohibition against retaliation.
Sec. 405. Rule of construction.
Sec. 406. Regulations.
Sec. 407. Enforcement.

Sec. 501. Driver's license privacy.
                        TITLE VI--MISCELLANEOUS

Sec. 601. Enforcement by State Attorneys General.
Sec. 602. Federal injunctive authority.



    (a) Prohibition.--
            (1) In general.--It is unlawful for a commercial entity to 
        collect personally identifiable information and disclose such 
        information to any nonaffiliated third party for marketing 
        purposes or sell such information to any nonaffiliated third 
        party, unless the commercial entity provides--
                    (A) notice to the individual to whom the 
                information relates in accordance with the requirements 
                of subsection (b); and
                    (B) an opportunity for such individual to restrict 
                the disclosure or sale of such information.
            (2) Exception.--A commercial entity may collect personally 
        identifiable information and use such information to market to 
        potential customers such entity's product.
    (b) Notice.--
            (1) In general.--A notice under subsection (a) shall 
        contain statements describing the following:
                    (A) The identity of the commercial entity 
                collecting the personally identifiable information.
                    (B) The types of personally identifiable 
                information that are being collected on the individual.
                    (C) How the commercial entity may use such 
                    (D) A description of the categories of potential 
                recipients of such personally identifiable information.
                    (E) Whether the individual is required to provide 
                personally identifiable information in order to do 
                business with the commercial entity.
                    (F) How an individual may decline to have such 
                personally identifiable information used or sold as 
                described in subsection (a).
            (2) Time of notice.--Notice shall be conveyed prior to the 
        sale or use of the personally identifiable information as 
        described in subsection (a) in such a manner as to allow the 
        individual a reasonable period of time to consider the notice 
        and limit such sale or use.
            (3) Medium of notice.--The medium for providing notice must 
                    (A) the same medium in which the personally 
                identifiable information is or will be collected, or a 
                medium approved by the individual; or
                    (B) in the case of oral communication, notice may 
                be conveyed orally or in writing.
            (4) Form of notice.--The notice shall be clear and 
    (c) Opt-Out.--
            (1) Opportunity to opt-out of sale or marketing.--The 
        opportunity provided to limit the sale of personally 
        identifiable information to nonaffiliated third parties or the 
        disclosure of such information for marketing purposes, shall be 
        easy to use, accessible and available in the medium the 
        information is collected, or in a medium approved by the 
            (2) Duration of limitation.--An individual's limitation on 
        the sale or marketing of personally identifiable information 
        shall be considered permanent, unless otherwise specified by 
        the individual.
            (3) Revocation of consent.--After an individual grants 
        consent to the use of that individual's personally identifiable 
information, the individual may revoke the consent at any time, except 
to the extent that the commercial entity has taken action in reliance 
thereon. The commercial entity shall provide the individual an 
opportunity to revoke consent that is easy to use, accessible, and 
available in the medium the information was or is collected.
            (4) Not applicable.--This section shall not apply to 
        disclosure of personally identifiable information--
                    (A) that is necessary to facilitate a transaction 
                specifically requested by the consumer;
                    (B) is used for the sole purpose of facilitating 
                this transaction; and
                    (C) in which the entity receiving or obtaining such 
                information is limited, by contract, to use such 
                formation for the purpose of completing the 


    (a) In General.--In accordance with the provisions of this section, 
the Federal Trade Commission shall have the authority to enforce any 
violation of section 101 of this Act.
    (b) Violations.--The Federal Trade Commission shall treat a 
violation of section 101 as a violation of a rule under section 
18a(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 
    (c) Transfer of Enforcement Authority.--The Federal Trade 
Commission shall promulgate rules in accordance with section 553 of 
title 5, United States Code, allowing for the transfer of enforcement 
authority from the Federal Trade Commission to a Federal agency 
regarding section 101 of this Act. The Federal Trade Commission may 
permit a Federal agency to enforce any violation of section 101 if such 
agency submits a written request to the Commission to enforce such 
violations and includes in such request--
            (1) a description of the entities regulated by such agency 
        that will be subject to the provisions of section 101;
            (2) an assurance that such agency has sufficient authority 
        over the entities to enforce violations of section 101; and
            (3) a list of proposed rules that such agency shall use in 
        regulating such entities and enforcing section 101.
    (d) Actions by the Commission.--Absent transfer of enforcement 
authority to a Federal agency under subsection (c), the Federal Trade 
Commission shall prevent any person from violating section 101 in the 
same manner, by the same means, and with the same jurisdiction, powers, 
and duties as provided to such Commission under the Federal Trade 
Commission Act (15 U.S.C. 41 et seq.). Any entity that violates section 
101 is subject to the penalties and entitled to the privileges and 
immunities provided in such Act in the same manner, by the same means, 
and with the same jurisdiction, power, and duties under such Act.
    (e) Relationship to Other Laws.--
            (1) Commission authority.--Nothing contained in this title 
        shall be construed to limit authority provided to the 
        Commission under any other law.
            (2) Communications act.--Nothing in section 101 requires an 
        operator of a website to take any action that is inconsistent 
        with the requirements of section 222 or 631 of the 
        Communications Act of 1934 (47 U.S.C. 222 and 5551).
            (3) Other acts.--Nothing in this title is intended to 
        affect the applicability or the enforceability of any provision 
        of, or any amendment made by--
                    (A) the Children's Online Privacy Protection Act of 
                1998 (15 U.S.C. 6501 et seq.);
                    (B) title V of the Gramm-Leach-Bliley Act;
                    (C) the Health Insurance Portability and 
                Accountability Act of 1996; or
                    (D) the Fair Credit Reporting Act.
    (f) Public Records.--Nothing in this title shall be construed to 
restrict commercial entities from obtaining or disclosing personally 
identifying information from public records.
    (g) Civil Penalties.--In addition to any other penalty applicable 
to a violation of section 101(a), a penalty of up to $25,000 may be 
issued for each violation.
    (h) Enforcement Regarding Programs.--
            (1) In general.--A Federal agency or department providing 
        financial assistance to any entity required to comply with 
        section 101 of this Act shall issue regulations requiring that 
        such entity comply with such section or forfeit some or all of 
        such assistance. Such regulations shall prescribe sanctions for 
        noncompliance, require that such department or agency provide 
        notice of failure to comply with such section prior to any 
        action being taken against such recipient, and require that a 
        determination be made prior to any action being taken against 
        such recipient that compliance cannot be secured by voluntary 
            (2) Federal financial assistance.--The term ``Federal 
        financial assistance'' means assistance through a grant, 
        cooperative agreement, loan, or contract other than a contract 
        of insurance or guaranty.


    A commercial entity may not be held to have violated any provision 
of this title if such entity complies with self-regulatory guidelines 
            (1) are issued by seal programs or representatives of the 
        marketing or online industries or by any other person; and
            (2) are approved by the Federal Trade Commission, after 
        public comment has been received on such guidelines by the 
        Commission, as meeting the requirements of this title.


    In this title:
            (1) Commercial entity.--The term ``commercial entity''--
                    (A) means any person offering products or services 
                involving commerce--
                            (i) among the several States or with 1 or 
                        more foreign nations;
                            (ii) in any territory of the United States 
                        or in the District of Columbia, or between any 
                        such territory and--
                                    (I) another such territory; or
                                    (II) any State or foreign nation; 
                            (iii) between the District of Columbia and 
                        any State, territory, or foreign nation; and
                    (B) does not include--
                            (i) any nonprofit entity that would 
                        otherwise be exempt from coverage under section 
                        5 of the Federal Trade Commission Act (15 
                        U.S.C. 45);
                            (ii) any financial institution that is 
                        subject to title V of the Gramm-Leach-Bliley 
                        Act (15 U.S.C. 6801 et seq.); or
                            (iii) any group health plan, health 
                        insurance issuer, or other entity that is 
                        subject to the Health Insurance Portability and 
                        Accountability Act of 1996 (42 U.S.C. 201 
            (2) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (3) Individual.--The term ``individual'' means a person 
        whose personally identifying information has been, is, or will 
        be collected by a commercial entity.

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