Last week the Banning Surveillance Advertising Act was introduced in both the U.S. House (H.R.6416) and Senate (S.3520) by Congresswoman Anna G. Eshoo (D-CA), Congresswoman Jan Schakowsky (D-IL), and Senator Cory Booker (D-NJ).

The bill expressly prohibits advertising facilitators (e.g., publishers) from engaging in, or enabling an advertiser or third party from engaging in, targeted advertising using consumers’ personal information. However, the bill does permit advertising based on content the consumer is viewing, has searched, or is otherwise engaging with (e.g., contextual advertising). The bill also contains an exception for broad location targeting to a recognized place such as state or municipality.

Readers should note that the bill’s definition of personal information is broader than the California Consumer Privacy Act (CCPA) as it explicitly includes information that is linkable or reasonably linkable to individuals or devices. (The definition of “consumer” under CCPA, however, includes identification by “unique identifiers,” which includes device identifiers.) Further, it contains a private right of action in addition to enforcement by the FTC and State attorneys general offices.

This follows on the heels of recent state privacy laws that minimize the use of targeted and cross-contextual behavioral advertising through consumer opt-outs. Namely, the California Privacy Rights Act (CPRA), Virginia’s Consumer Data Protection Act (CDPA), and Colorado’s Consumer Protection Act (CPA) are going into effect in 2023 and we expect additional state laws to be passed this year containing similar opt-out requirements. The California Attorney General has also been applying the CCPA’s “Do Not Sell My Personal Information” opt-out rights to interest-based advertising in multiple enforcement actions.

From an industry perspective, readers may recall that the ad tech community already has existing mechanisms for consumers to opt-out of interested-based advertising that function independent of legal requirements. Specifically, the Digital Advertising Alliance (DAA) and Network Advertising Initiative (NAI) both have well known interest-based advertising opt-out practices that are honored by industry participants.

Considering state legislators and the ad tech industry have embraced an opt-out regime rather than an outright prohibition, it is unclear how far these bills will progress through the federal legislative process. Additionally, given the private right of action and few co-sponsors to date, it is unlikely to make it out of committee in its current form.