116th CONGRESS 2d Session |
To amend the Federal Election Campaign Act of 1971 to prohibit online platforms and certain intermediaries from targeting the dissemination of political advertisements to a specific group of individuals on the basis of online behavioral data or on the basis of demographic characteristics shared by members of the group, to require online platforms and certain intermediaries to maintain public records of certain political advertisements, and for other purposes.
May 26, 2020
Mr. Cicilline (for himself, Mr. Casten of Illinois, Mr. Hastings, Mrs. Hayes, Mr. Johnson of Georgia, and Mr. Lynch) introduced the following bill; which was referred to the Committee on House Administration
To amend the Federal Election Campaign Act of 1971 to prohibit online platforms and certain intermediaries from targeting the dissemination of political advertisements to a specific group of individuals on the basis of online behavioral data or on the basis of demographic characteristics shared by members of the group, to require online platforms and certain intermediaries to maintain public records of certain political advertisements, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Protecting Democracy From Disinformation Act”.
SEC. 2. Requirements for political advertisements disseminated by online platforms or arranged for dissemination by certain intermediaries.
(a) Requirements.—Title III of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101 et seq.) is amended by adding at the end the following new section:
“SEC. 325. Requirements for political advertisements disseminated by online platforms or arranged for dissemination by certain intermediaries.
“(a) Restrictions on microtargeting.—
“(1) RESTRICTIONS ON ADVERTISEMENTS TARGETED AT GROUP OF INDIVIDUALS ON BASIS OF ONLINE BEHAVIORAL DATA.—
“(A) IN GENERAL.—Except as provided in paragraph (3), a covered online platform may not target the dissemination of a qualified political advertisement, and a covered intermediary may not arrange for the dissemination of a qualified political advertisement, to a specific group of individuals on the basis of any online behavioral data of such individuals.
“(B) SPECIAL RULE FOR DISSEMINATION TO INDIVIDUALS ON LIST PROVIDED BY SPONSOR OF ADVERTISEMENT.—
“(i) IN GENERAL.—A covered online platform which targets the dissemination of a qualified political advertisement to a specific group of individuals on a list provided by the sponsor of the advertisement, and a covered intermediary which arranges for the dissemination of a qualified political advertisement to a specific group of individuals on a list provided by the sponsor of the advertisement, shall not be considered to be in violation of this paragraph if the platform or intermediary made a good faith effort to ensure that individuals are not included on the list on the basis of their online behavioral data.
“(ii) SAFE HARBOR FOR PLATFORMS AND INTERMEDIARIES REQUIRING CERTIFICATION BY ADVERTISER.—For purposes of clause (i), a covered online platform and a covered intermediary shall be considered to have made a good faith effort to ensure that the individuals on a list provided by the sponsor of a qualified political advertisement are not included on the list on the basis of their online behavioral data if the platform or intermediary requires the advertiser to certify that each individual on the list subscribed to the list or consented to being included on the list.
“(C) ONLINE BEHAVIORAL DATA DEFINED.—In this paragraph, the term ‘online behavioral data’ means, with respect to an individual, information that is tracked, collected, or maintained about an individual’s actions or activities online, including information relating to an individual’s activity across businesses, distinctly branded websites, applications, or services, but does not include information relating to an individual’s activity with a business, distinctly branded website, application, or service with which the individual intentionally interacts.
“(2) RESTRICTIONS ON ADVERTISEMENTS TARGETED AT GROUP OF INDIVIDUALS ON BASIS OF SHARED DEMOGRAPHIC CHARACTERISTIC.—
“(A) IN GENERAL.—Except as provided in paragraph (3), a covered online platform may not target the dissemination of a qualified political advertisement, and a covered intermediary may not arrange for the dissemination of a qualified political advertisement, to a specific group of individuals on the basis of any demographic characteristic shared by members of such group unless—
“(i) the demographic characteristic is described in subparagraph (B); and
“(ii) in the case of a covered online platform, the platform disseminates with the advertisement the accompanying statement described in paragraph (4).
“(B) DEMOGRAPHIC CHARACTERISTICS DESCRIBED.—The demographic characteristics described in this subparagraph with respect to a group of individuals are the following:
“(i) The age of the members of the group.
“(ii) The gender of the members of the group.
“(iii) The geographic area in which the members of the group reside, except that such area may not be smaller than the ZIP Code in which the members of the group reside.
“(C) RULE OF CONSTRUCTION.—Nothing in paragraph (1) shall be construed to prohibit a covered online platform or a covered intermediary from using online behavioral data (as described in such paragraph) with respect to an individual to determine the demographic characteristics described in subparagraph (B) which apply to such individual.
“(3) EXCEPTION FOR TARGETING ON A CONTEXTUAL BASIS.—
“(A) EXCEPTION.—Paragraphs (1) and (2) do not apply if—
“(i) a covered online platform targets the dissemination of a qualified political advertisement, or a covered intermediary arranges for the dissemination of a qualified political advertisement, to a specific group of individuals on a contextual basis as described in subparagraph (B); and
“(ii) in the case of a covered online platform, the platform disseminates with the advertisement the accompanying statement described in paragraph (4).
“(B) DISSEMINATION OF ADVERTISEMENTS ON CONTEXTUAL BASIS.—For purposes of subparagraph (A), a covered online platform disseminates a qualified political advertisement on a contextual basis, and a covered intermediary arranges for the dissemination of a qualified political advertisement on a contextual basis, if the advertisement involved is disseminated solely on the basis of the content that the individual is viewing on the covered online platform at the same time the advertisement appears on the covered online platform and is not otherwise disseminated on the basis of online behavioral data with respect to such individual.
“(4) ACCOMPANYING STATEMENT DESCRIBED.—
“(A) IN GENERAL.—The accompanying statement described in this paragraph is, with respect to a qualified political advertisement, a statement made in a clear and conspicuous manner which states that the dissemination of the advertisement is targeted to a specific group of individuals and which includes—
“(i) in the case of the statement required under paragraph (2)(A), a description of the demographic characteristic on which the group was targeted; and
“(ii) in the case of the statement required under paragraph (3)(A), a description of the content on which the dissemination of the advertisement is based.
“(B) SAFE HARBOR FOR DETERMINING CLEAR AND CONSPICUOUS MANNER.—For purposes of subparagraph (A), a statement shall be considered to be made in a clear and conspicuous manner if the statement is displayed onscreen above the qualified political advertisement in the format in which the advertisement appears.
“(5) AVAILABILITY OF PRIVATE RIGHT OF ACTION.—
“(A) RIGHT TO FILE ACTION.—An aggrieved person alleging a violation of this subsection may bring a civil action against any covered online platform or covered intermediary in an appropriate district court for damages, declaratory, injunctive relief, or any other relief the court deems appropriate with respect to the violation.
“(B) DAMAGES.— (i) If the court finds that the defendant violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, award up to $100,000 in damages to plaintiff per violation.
“(ii) If the court finds that the defendant knowingly and willfully violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount per violation available under clause (i).
“(C) ATTORNEY’S FEES.—In a civil action under this paragraph, the court may allow the prevailing party (other than the United States) reasonable attorney fees, including litigation expenses, and costs.
“(D) RELATION TO OTHER REMEDIES.—The remedy established by this paragraph is in addition to all other rights and remedies provided under this Act.
“(E) INJURY IN FACT.—If a court finds that the defendant violated this section, the court shall find that such violation constitutes a concrete and particularized injury in fact to the plaintiff.
“(F) TREATMENT OF MANDATORY PREDISPUTE ARBITRATION AGREEMENTS AND PREDISPUTE JOINT ACTION WAIVERS.—Any agreement to arbitrate an alleged dispute of this subsection that has not yet arisen at the time of making the agreement or any agreement that would otherwise prohibit, or waive the right of, one of the parties to the agreement to participate in a joint, class, or collection action in federal court, concerning a dispute due to an alleged violation of this subsection that has not yet arisen at the time of making the agreement shall be deemed invalid and unenforceable for purposes of civil action arising out of an alleged violation of this subsection, notwithstanding any other provision of law.
“(b) Maintenance of records of qualified political advertisements.—
“(A) REQUIREMENTS FOR ONLINE PLATFORMS AND COVERED INTERMEDIARIES.—
“(i) RECORDS OF REQUESTS TO PURCHASE ADVERTISEMENTS.—A covered online platform and a covered intermediary shall maintain, and make available for online public inspection in a machine readable format which is searchable on the basis of any of the information described in paragraph (2), a complete record of any request to purchase on such platform (or, in the case of a covered intermediary, of any request to purchase an arrangement for the dissemination by the intermediary of) a qualified political advertisement which is made by a person the value of whose aggregate requests to purchase qualified political advertisements on such online platform or to purchase arrangements for the dissemination of qualified political advertisements by the intermediary (as the case may be) during the calendar year exceeds $500.
“(ii) ASSIGNMENT OF UNIQUE IDENTIFICATION NUMBER.—The covered online platform and the covered intermediary shall assign a unique identification number to each person described in clause (i), and shall use that same number with respect to all information relating to such person which is included in the record the platform or intermediary maintains and makes available under this subsection. If the person is a candidate, the platform or intermediary shall assign to the person the same identification number assigned to the person by the Commission for purposes of filing reports under this Act.
“(B) REQUIREMENTS FOR ADVERTISERS.—
“(i) PROVISION OF INFORMATION.—Any person who requests to purchase a qualified political advertisement on a covered online platform, or who requests to purchase an arrangement for the dissemination of a qualified political advertisement by a covered intermediary, shall provide the online platform or intermediary with such information as is necessary for the online platform or intermediary to comply with the requirements of subparagraph (A).
“(ii) ASSISTANCE FROM PLATFORMS.—Each covered online platform and covered intermediary shall provide such assistance as may be required to enable a person to provide the platform or intermediary with the information required under clause (i).
“(2) CONTENTS OF RECORD.—A record maintained under paragraph (1)(A) shall contain—
“(A) the unique identification number assigned under such paragraph to the person making the request (and, if the person is a candidate, a statement that such number is the same identification number assigned to the person by the Commission for purposes of filing reports under this Act);
“(B) a digital copy of the qualified political advertisement;
“(C) a description of the advertisement’s targeted audience, including information on the audience’s age, gender, and geographic location;
“(D) a description of the advertisement’s audience as predicted by an algorithm, including information on the audience’s age, gender, geographic location, race, ethnicity, and political affiliation, except that a covered online platform or a covered intermediary may exclude this information from the record maintained under paragraph (1)(A) with respect to an advertisement if the platform or intermediary does not, in the ordinary course of business, collect such information with respect to such an advertisement;
“(E) a description of the advertisement’s actual audience as determined on the basis of data provided in an online platform user’s profile, including information on the audience’s age, gender, geographic location, race, ethnicity, and political affiliation, except that a covered online platform or a covered intermediary may exclude this information from the record maintained under paragraph (1)(A) with respect to an advertisement if the platform or intermediary does not, in the ordinary course of business, collect such information with respect to such an advertisement;
“(F) the number of views generated from the advertisement;
“(G) the date and time that the advertisement is first displayed and last displayed; and
“(i) the average rate charged for the advertisement;
“(ii) the name of the candidate to which the advertisement refers and the office to which the candidate is seeking election, the election to which the advertisement refers, or the national legislative issue to which the advertisement refers (as applicable); and
“(iii) the amount such person budgeted for the purchase of the advertisement on the platform, as well as the amount such person paid for the purchase of the advertisement on the platform.
“(3) TIME TO MAINTAIN FILE.—The information required under this subsection shall be made available as soon as possible and shall be retained by the covered online platform or covered intermediary for a period of not less than 4 years.
“(4) SAFE HARBOR FOR PLATFORMS AND INTERMEDIARIES MAKING BEST EFFORTS TO IDENTIFY REQUESTS WHICH ARE SUBJECT TO RECORD MAINTENANCE REQUIREMENTS.—
“(A) AVAILABILITY OF SAFE HARBOR.—In accordance with rules established by the Commission, if a covered online platform or covered intermediary shows that the platform or intermediary used best efforts to determine whether or not a request to purchase a qualified political advertisement or a request to purchase an arrangement for the dissemination of a qualified political advertisement (as the case may be) was subject to the requirements of this subsection, the platform or intermediary shall not be considered to be in violation of such requirements.
“(B) SPECIAL RULES FOR DISBURSEMENT PAID WITH CREDIT CARD.—For purposes of subparagraph (A), a covered online platform or a covered intermediary shall be considered to have used best efforts in the case of a purchase of a qualified political advertisement, or a purchase of an arrangement for the dissemination of a qualified political advertisement (as the case may be), which is made with a credit card if—
“(i) the individual or entity making such purchase is required, at the time of making such purchase, to disclose the credit verification value of such credit card; and
“(ii) the billing address associated with such credit card is located in the United States or, in the case of a purchase made by an individual who is a United States citizen living outside of the United States, the individual provides the platform or intermediary with the United States mailing address the individual uses for voter registration purposes.
“(c) Covered online platform defined.—In this section, the term ‘covered online platform’ means any public facing website, web application, or digital application (including a social network or search engine) which sells qualified political advertisements and has 50,000,000 or more unique monthly United States visitors or users for a majority of months during the preceding 12 months, except that such term does not include a website or application that displays qualified political advertisements solely pursuant to an arrangement entered into with a covered intermediary between the website or application and the sponsor of the qualified political advertisement.
“(d) Covered intermediary defined.—In this section, the term ‘covered intermediary’ means a digital advertising platform or advertising system (including an ad server, ad network, ad exchange, and any other advertising technology intermediary) which participates in the delivery of 100,000,000 advertisements that can be viewed in the United States for a majority of months during the preceding 12 months.
“(e) Qualified political advertisement defined.—In this section, the term ‘qualified political advertisement’ means any advertisement (including search engine marketing, display advertisements, video advertisements, native advertisements, and sponsorships) that—
“(1) is made by or on behalf of a candidate; or
“(2) communicates a message relating to any political matter of national importance, including—
“(A) a candidate;
“(B) any election to Federal office; or
“(C) a national legislative issue of public importance.”.
(b) Enhanced criminal penalty for violations.—Section 309(d)(1) of such Act (52 U.S.C. 30109(d)(1)) is amended by adding at the end the following new subparagraph:
“(E) Any covered online platform or covered intermediary, or an officer or director of a covered online platform or covered intermediary, who knowingly and willfully commits a violation of section 325 shall be imprisoned not more than 5 years, fined under title 18, United States Code, or both.”.
(1) RESPONSIBILITIES OF FEDERAL ELECTION COMMISSION.—Not later than 90 days after the date of the enactment of this Act, the Federal Election Commission shall establish rules—
(A) regarding the definition of any term whose definition is set forth in section 325 of the Federal Election Campaign Act of 1971 (as added by subsection (a));
(B) regarding the restrictions established under section 325(a) of such Act (as added by subsection (a)) on targeting the dissemination of qualified political advertisements to a specific group of individuals on the basis of any demographic characteristic shared by members of such group, including establishing the criteria for the safe harbors described in paragraphs (1)(B)(ii) and (4)(B) of such section;
(C) requiring common data formats for the record required to be maintained under section 325(b) of such Act (as added by subsection (a)) so that all online platforms and intermediaries submit and maintain data online in a common, machine-readable and publicly accessible format;
(D) establishing search interface requirements relating to such record, including searches by candidate name, issue, purchaser, and date; and
(E) establishing the criteria for the safe harbor exception provided under paragraph (4) of section 325(b) of such Act (as added by subsection (a)).
(2) REVISION.—After the Commission first establishes rules pursuant to this subsection, the Commission shall revise the rules every 5 years thereafter.
(d) Reporting.—Not later than 2 years after the date of the enactment of this Act, and biannually thereafter, the Chairman of the Federal Election Commission shall submit a report to Congress on—
(1) matters relating to compliance with and the enforcement of the requirements of section 325(b) of the Federal Election Campaign Act of 1971, as added by subsection (a);
(2) recommendations for any modifications to such section to assist in carrying out its purposes; and
(3) identifying ways to bring transparency and accountability to political advertisements distributed online for free.
(e) Effective date.—The amendments made by this section shall apply with respect to qualified political advertisements disseminated after the expiration of the 120-day period which begins on the date of the enactment of this Act.