Congress Introduces Banning Surveillance Advertisement Act

On January 19, 2022, Senator Cory Booker (D-NJ) introduced the Banning Surveillance Advertising Act (“Act”) to implement limiting or, in some circumstances, extinguishing, “surveillance advertising.” 

Under the Act, a business engaged in advertisement facilitation may not utilize targeted advertisement or “knowingly enable” and advertiser or third party to target consumers for the spread of their ads by providing them with consumer information, such as the individual’s contact information or personal information that can be used to seek out or identify a consumer.

These prohibitions do not, however, extend to “contextual advertising” which includes advertisements distributed to a consumer who views or otherwise engages in activities that are contextually related to the advertisement or advertisements for goods or services which the individual searched. 

Additionally, advertisers may not “target, cause an advertising facilitator to target, or knowingly enable a third party to target” a consumer for the purpose of advertisement based on personal information that was purchased by the advertiser or that identifies or implicates a protected class of people.

The Act would be enforced by the Federal Trade Commission (“FTC”) and state attorneys general through their investigative and enforcement powers. The Act also includes a private right of action permitting aggrieved individuals to sue offending parties. Penalties can range from $100 to $1,000 per violation, or $500 to $5,000 for reckless or intentional violations of the Act, plus attorney fees and costs.

Businesses engaged in any advertisement activity, as well as consumers, should be aware of the provisions of the Act to ensure compliance.