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S. 1116: Balancing the Rights Of Web Surfers Equally and Responsibly Act of 2019

The text of the bill below is as of Apr 10, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 1116

IN THE SENATE OF THE UNITED STATES

April 10, 2019

introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

A BILL

To require providers of broadband internet access service and edge services to clearly and conspicuously notify users of the privacy policies of those providers, to give users opt-in or opt-out approval rights with respect to the use of, disclosure of, and access to user information collected by those providers based on the level of sensitivity of the information, and for other purposes.

1.

Short title

This Act may be cited as the Balancing the Rights Of Web Surfers Equally and Responsibly Act of 2019 or the BROWSER Act of 2019.

2.

Definitions

In this Act:

(1)

Broadband internet access service

(A)

In general

The term broadband internet access service means a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service.

(B)

Functional equivalent; evasion

The term broadband internet access service includes any service that—

(i)

the Commission finds to be providing a functional equivalent of the service described in subparagraph (A); or

(ii)

is used to evade the protections set forth in this Act.

(2)

Commission

The term Commission means the Federal Trade Commission.

(3)

Covered service

The term covered service means—

(A)

broadband internet access service; or

(B)

an edge service.

(4)

Edge service

The term edge service

(A)

means a service provided over the internet—

(i)

for which the provider requires the user to subscribe or establish an account in order to use the service;

(ii)

that the user purchases from the provider of the service without a subscription or account;

(iii)

by which a program searches for and identifies items in a database that correspond to keywords or characters specified by the user, used especially for finding particular sites on the world wide web; or

(iv)

by which the user divulges sensitive user information; and

(B)

includes a service described in subparagraph (A) that is provided through a software program, including a mobile application.

(5)

Emergency services

The term emergency services has the meaning given the term in section 222 of the Communications Act of 1934 (47 U.S.C. 222).

(6)

Material

The term material means, with respect to a change in a privacy policy of a provider of a covered service, any change in the policy that a user of the service, acting reasonably under the circumstances, would consider important to the decisions of the user regarding the privacy of the user, including any change to information required to be included in a privacy notice under section 3.

(7)

Mobile application

The term mobile application means a software program that runs on the operating system of a mobile device.

(8)

Non-sensitive user information

The term non-sensitive user information means any user information that is not sensitive user information.

(9)

Opt-in approval

The term opt-in approval means a method for obtaining from a user of a covered service consent to use, disclose, or permit access to sensitive user information under which the provider of the service obtains express consent allowing the requested usage of, disclosure of, or access to the sensitive user information.

(10)

Opt-out approval

The term opt-out approval means a method for obtaining from a user of a covered service consent to use, disclose, or permit access to non-sensitive user information under which the user is deemed to have consented to the use of, disclosure of, or access to the non-sensitive user information if the user has failed to object to the use, disclosure, or access.

(11)

Public safety answering point

The term public safety answering point has the meaning given the term in section 222 of the Communications Act of 1934 (47 U.S.C. 222).

(12)

Sensitive user information

The term sensitive user information includes any of the following:

(A)

Financial information.

(B)

Health information.

(C)

Information pertaining to children under the age of 13.

(D)

Social Security number.

(E)

Precise geolocation information.

(F)

Content of communications.

(G)

Web browsing history, history of usage of a software program (including a mobile application), and the functional equivalents of either.

(13)

State

The term State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, any other territory or possession of the United States, and each federally recognized Indian Tribe.

(14)

User

The term user means, with respect to a covered service, a person who—

(A)

is a current or former—

(i)

subscriber to the service; or

(ii)

holder of an account for the service;

(B)

purchases the service without a subscription or account;

(C)

is an applicant for the service; or

(D)

in the case of a service described in clause (iii) or (iv) of paragraph (4)(A), uses the service.

(15)

User information

The term user information means any information that—

(A)

a provider of a covered service acquires in connection with the provision of the service; and

(B)

is linked or reasonably linkable to an individual.

3.

Notice of privacy policies

(a)

In general

A provider of a covered service shall provide a user of the service with clear and conspicuous notice of the privacy policies of the provider with respect to the service.

(b)

Availability to prospective users

The notice required by subsection (a) shall be made available to a prospective user of a covered service—

(1)

at the point of sale of, subscription to, or establishment of an account for the covered service, prior to that sale, subscription, or establishment, without regard to whether the point of sale, subscription, or establishment is in person, online, over the telephone, or through another means; or

(2)

if there is no such sale, subscription, or establishment, before the user uses the service.

(c)

Persistent availability

The notice required by subsection (a) shall be made persistently available.

(d)

Material changes

A provider of a covered service shall provide a user of the service with clear and conspicuous advance notice of any material change to the privacy policies of the provider with respect to the service.

4.

User opt-in or opt-out approval rights based on sensitivity of information

(a)

Opt-In approval required for sensitive user information

Except as provided in subsection (c), a provider of a covered service shall obtain opt-in approval from a user to use, disclose, or permit access to the sensitive user information of the user.

(b)

Opt-Out approval required for non-Sensitive user information

Except as provided in subsection (c), a provider of a covered service—

(1)

shall obtain opt-out approval from a user to use, disclose, or permit access to any of the non-sensitive user information of the user; or

(2)

if the provider so chooses, may comply with the requirement of paragraph (1) by obtaining opt-in approval from the user to use, disclose, or permit access to any of the non-sensitive user information of the user.

(c)

Limitations and exceptions

A provider of a covered service may use, disclose, or permit access to user information without user approval for the following purposes:

(1)

In providing the covered service from which the information is derived, or in providing services necessary to, or used in, the provision of the service.

(2)

To initiate, render, bill for, and collect for the covered service.

(3)

To protect the rights or property of the provider, or to protect users of the covered service and other service providers from fraudulent, abusive, or unlawful use of the service.

(4)

To provide location information or non-sensitive user information—

(A)

to a public safety answering point, emergency medical service provider or emergency dispatch provider, public safety, fire service, or law enforcement official, or hospital emergency or trauma care facility, in order to respond to the request of the user for emergency services;

(B)

to inform the legal guardian of the user, or members of the immediate family of the user, of the location of the user in an emergency situation that involves the risk of death or serious physical harm; or

(C)

to providers of information or database management services solely for purposes of assisting in the delivery of emergency services in response to an emergency.

(5)

As otherwise required or authorized by law.

(d)

Mechanism for exercising user approval

(1)

In general

A provider of a covered service shall make available a simple, easy-to-use mechanism for a user to grant, deny, or withdraw opt-in approval or opt-out approval at any time.

(2)

Form and manner

The mechanism required by paragraph (1) shall be—

(A)

clear and conspicuous; and

(B)

made available—

(i)

at no additional cost to the user; and

(ii)

in a language other than English, if the provider transacts business with the user in that other language.

(3)

Effect

The grant, denial, or withdrawal of opt-in approval or opt-out approval by a user shall—

(A)

be given effect promptly; and

(B)

remain in effect until the user revokes or limits the grant, denial, or withdrawal of approval.

5.

Service offers conditioned on waivers of privacy rights

A provider of a covered service may not—

(1)

condition, or effectively condition, provision of the service on agreement by a user to waive privacy rights guaranteed by law or regulation, including this Act; or

(2)

terminate the service or otherwise refuse to provide the service as a direct or indirect consequence of the refusal of a user to waive any privacy rights described in paragraph (1).

6.

Enforcement by Federal Trade Commission

(a)

General application

The requirements of this Act apply, according to their terms, to—

(1)

those persons, partnerships, and corporations over which the Commission has authority pursuant to section 5(a)(2) of the Federal Trade Commission Act (15 U.S.C. 45(a)(2)); and

(2)

providers of broadband internet access service, notwithstanding the exception in such section 5(a)(2) for common carriers subject to the Communications Act of 1934 (47 U.S.C. 151 et seq.).

(b)

Unfair or deceptive acts or practices

A violation of this Act shall be treated as an unfair or deceptive act or practice in or affecting commerce for purposes of section 5(a)(2) of the Federal Trade Commission Act (15 U.S.C. 45(a)(2)).

(c)

Powers of Commission

Except as provided in subsection (a)(2) of this section—

(1)

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 (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act; and

(2)

any person who violates this Act shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act.

7.

Relationship to other law

(a)

Preemption of State law

No State or political subdivision of a State shall, with respect to a provider of a covered service subject to this Act, adopt, maintain, enforce, or impose or continue in effect any law, rule, regulation, duty, requirement, standard, or other provision having the force and effect of law relating to or with respect to the privacy of user information.

(b)

Other Federal law

(1)

In general

Except as provided in paragraph (2), nothing in this Act shall be construed to supersede any Federal statute or regulation relating to information privacy.

(2)

Communications Act of 1934

Insofar as any provision of the Communications Act of 1934 (47 U.S.C. 151 et seq.) or any regulations promulgated under that Act apply to any person, partnership, or corporation subject to this Act with respect to privacy policies, terms of service, and practices covered by this Act, the provision or regulations shall have no force or effect, unless the regulations pertain to emergency services.