E.K.D. et al v. Facebook, Inc.

Filing 14

EXHIBIT by Facebook, Inc.. Exhibit to 12 Motion to Dismiss for Failure to State a Claim Declaration of Matthew D. Brown. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Brown, Matthew)

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EXHIBIT G II 105TH CONGRESS 2D SESSION S. 2326 To require the Federal Trade Commission to prescribe regulations to protect the privacy of personal information collected from and about children on the Internet, to provide greater parental control over the collection and use of that information, and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 17, 1998 Mr. BRYAN (for himself and Mr. MCCAIN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To require the Federal Trade Commission to prescribe regulations to protect the privacy of personal information collected from and about children on the Internet, to provide greater parental control over the collection and use of that information, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 4 SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Children’s Online Pri- 5 vacy Protection Act of 1998’’. 6 SEC. 2. DEFINITIONS. 7 In this Act: 2 1 2 3 4 5 (1) CHILD.—The term ‘‘child’’ means an individual under the age of 16. (2) CHILDREN.—The term ‘‘children’’ means more than 1 child. (3) COMMERCIAL WEBSITE OPERATOR.—The 6 term ‘‘commercial website operator’’ means any per- 7 son operating a website on the World Wide Webs for 8 commercial purposes, including any person offering 9 products or services for sale though that website, in- 10 volving commerce— 11 12 (A) among the several States or with 1 or more foreign nations; 13 (B) in any territory of the United States 14 or in the District of Columbia, or between any 15 such territory— 16 (i) and another such territory; or 17 (ii) and any State or foreign nation; 18 or 19 (C) between the District of Columbia and 20 any State, territory, or foreign nation. 21 (4) COMMISSION.—The term ‘‘Commission’’ 22 23 24 means the Federal Trade Commission. (5) DISCLOSURE.—The term ‘‘disclosure’’ means, with respect to personal information— •S 2326 IS 3 1 (A) the release of information in identifi- 2 able form by a person to any other person for 3 any purpose; or 4 (B) making publicly available information 5 in identifiable form by any means including by 6 a public posting, through the use of a computer 7 on or through— 8 (i) a home page of a website; 9 (ii) a pen pal service; 10 (iii) an electronic mail service; 11 (iv) a message board; or 12 (v) a chat room. 13 (6) FEDERAL AGENCY.—The term ‘‘Federal 14 agency’’ means an agency, as that term is defined 15 in section 551(1) of title 5, United States Code. 16 (7) INTERNET.—The term ‘‘Internet’’ means 17 the international computer network of both Federal 18 and non-Federal interoperable packet switched data 19 networks. 20 (8) PARENT.—The term ‘‘parent’’ means a 21 legal guardian, including a biological or adoptive 22 parent. 23 (9) PERSONAL INFORMATION.—The term ‘‘per- 24 sonal information’’ means individually, identifiable 25 information about an individual, including— •S 2326 IS 4 1 (A) a first and last name; 2 (B) a home or other physical address; 3 (C) an e-mail address; 4 (D) a telephone number; 5 (E) a Social Security number; or 6 (F) any other information that would fa- 7 cilitate or enable the physical or online locating 8 and contacting of a specific individual, includ- 9 ing information that is associated with an iden- 10 tifier described in this paragraph in such man- 11 ner as to become identifiable to a specific indi- 12 vidual. 13 (10) VERIFIABLE PARENTAL CONSENT.—The 14 term ‘‘verifiable parental consent’’ means any rea- 15 sonable effort (taking into consideration available 16 technology) to ensure that a parent of a child au- 17 thorizes the disclosure of personal information and 18 subsequent use of that information before that infor- 19 mation is collected from that child. 20 21 (11) WEBSITE DIRECTED TO CHILDREN.—The term ‘‘website directed to children’’— 22 (A) means a commercial website that is— 23 (i) targeted to children; 24 (ii) directed to children by reason of 25 the subject matter, visual content, age of •S 2326 IS 5 1 models, language, characters, tone, mes- 2 sage, or any other similar characteristic of 3 the website; or 4 (iii) used by a commercial website op- 5 erator to knowingly collect information 6 from children; and 7 (B) includes any commercial website any 8 portion of which is directed to children, as spec- 9 ified in subparagraph (A). 10 (12) PERSON.—The term ‘‘person’’ means any 11 individual, partnership, corporation, trust, estate, co- 12 operative, association, or other entity. 13 SEC. 3. REGULATION OF UNFAIR AND DECEPTIVE ACTS 14 AND PRACTICES IN CONNECTION WITH THE 15 COLLECTION AND USE OF PERSONAL INFOR- 16 MATION FROM AND ABOUT CHILDREN ON 17 THE INTERNET. 18 19 (a) REGULATIONS.— (1) IN GENERAL.—Not later than 1 year after 20 the date of enactment of this Act, the Commission 21 shall, in a manner consistent with section 553 of 22 title 5, United States Code, prescribe regulations re- 23 quiring commercial website operators to follow fair 24 information practices in connection with the collec- 25 tion and use of personal information from children. •S 2326 IS 6 1 2 (2) CONTENTS.—The regulations issued under this subsection shall— 3 (A) require that any website directed to 4 children that collects personal information from 5 children— 6 (i) provide clear, prominent, under- 7 standable notice of the information collec- 8 tion and use practices of the website opera- 9 tor through the website; 10 (ii) obtain verifiable parental consent 11 for the collection, use, or disclosure of per- 12 sonal information from children who are 13 under the age of 13; 14 (iii) use reasonable efforts to provide 15 the parents with notice and an opportunity 16 to prevent or curtail the collection or use 17 of personal information collected from chil- 18 dren over the age of 12 and under the age 19 of 17; 20 (iv) provide a parent— 21 (I) access to the personal infor- 22 mation of the child of that parent col- 23 lected by that website; and 24 (II) the opportunity to refuse to 25 permit any further use or future col- •S 2326 IS 7 1 lection of personal information re- 2 ferred to in subclause (I) and notice 3 of that opportunity; and 4 (B) require that the commercial website 5 operator concerned establish and maintain rea- 6 sonable procedures to ensure the confidentiality, 7 security, accuracy, and integrity of personal in- 8 formation collected from children through the 9 website. 10 (b) ENFORCEMENT.— 11 (1) TREATMENT OF REGULATIONS.—A regula- 12 tion prescribed under subsection (a) shall be treated 13 as a rule defining an unfair or deceptive act or prac- 14 tice under section 18(a)(1)(B) of the Federal Trade 15 Commission Act (15 U.S.C. 57a(a)(1)(B)). 16 (2) ENFORCEMENT.—Subject to section 6, a 17 violation of a regulation prescribed under subsection 18 (a) shall be treated as a violation of a rule defining 19 an unfair or deceptive act or practice prescribed 20 under section 18(a)(1)(B) of the Federal Trade 21 Commission Act. 22 23 SEC. 4. SAFE HARBORS. (a) IN GENERAL.—In prescribing regulations under 24 section 3, the Commission shall provide incentives for ef25 forts of self-regulation by commercial website operators to •S 2326 IS 8 1 implement the protections described in subsection (a) of 2 that section. 3 (b) SAFE HARBORS.—The incentives referred to in 4 subsection (a) shall include provisions for ensuring that 5 a person will be deemed to be in compliance with the re6 quirements of the regulations under section 3 if that per7 son applies guidelines that— 8 9 (1) are issued by appropriate representatives of the computer industry; and 10 (2) are approved by the Commission upon mak- 11 ing a determination that the guidelines meet the re- 12 quirements of the regulations issued under section 3. 13 SEC. 5. ACTIONS BY STATES. 14 (a) IN GENERAL.— 15 (1) CIVIL ACTIONS.—In any case in which the 16 attorney general of a State has reason to believe 17 that an interest of the residents of that State has 18 been or is threatened or adversely affected by the 19 engagement of any person in a practice that violates 20 any regulation of the Commission prescribed under 21 section 3, the State, as parens patriae, may bring a 22 civil action on behalf of the residents of the State in 23 a district court of the United States of appropriate 24 jurisdiction to— 25 (A) enjoin that practice; •S 2326 IS 9 1 (B) enforce compliance with the regulation; 2 (C) obtain damage, restitution, or other 3 compensation on behalf of residents of the 4 State; or 5 (D) obtain such other relief as the court 6 may consider to be appropriate. 7 (2) NOTICE.— 8 (A) IN GENERAL.—Before filing an action 9 under paragraph (1), the attorney general of 10 the State involved shall provide to the Commis- 11 sion— 12 (i) written notice of that action; and 13 (ii) a copy of the complaint for that 14 action. 15 (B) EXEMPTION.— 16 (i) IN GENERAL.—Subparagraph (A) 17 shall not apply with respect to the filing of 18 an action by an attorney general of a State 19 under this subsection, if the attorney gen- 20 eral determines that it is not feasible to 21 provide the notice described in that sub- 22 paragraph before the filing of the action. 23 (ii) NOTIFICATION.—In an action de- 24 scribed in clause (i), the attorney general 25 of a State shall provide notice and a copy •S 2326 IS 10 1 of the complaint to the Commission at the 2 same time as the attorney general files the 3 action. 4 5 (b) INTERVENTION.— (1) IN GENERAL.—On receiving notice under 6 paragraph (2), the Commission shall have the right 7 to intervene in the action that is the subject of the 8 notice. 9 (2) EFFECT OF INTERVENTION.—If the Com- 10 mission intervenes in an action under subparagraph 11 (A), the Commission shall have the right— 12 13 (A) to be heard with respect to any matter that arises in that action; and 14 15 (B) to file a petition for appeal. (c) CONSTRUCTION.—For purposes of bringing any 16 civil action under subsection (a), nothing in this Act shall 17 be construed to prevent an attorney general of a State 18 from exercising the powers conferred on the attorney gen19 eral by the laws of that State to— 20 (1) conduct investigations; 21 (2) administer oaths or affirmations; or 22 (3) compel the attendance of witnesses or the 23 production of documentary and other evidence. 24 (d) ACTIONS BY THE COMMISSION.—In any case in 25 which an action is instituted by or on behalf of the Com•S 2326 IS 11 1 mission for violation of any regulation prescribed under 2 section 3, no State may, during the pendency of that ac3 tion, institute an action under subsection (a) against any 4 defendant named in the complaint in that action for viola5 tion of that regulation. 6 (e) VENUE; SERVICE OF PROCESS.— 7 (1) VENUE.—Any action brought under sub- 8 section (a) may be brought in the district court of 9 the United States— 10 (A) in which the defendant— 11 (i) is found; 12 (ii) is an inhabitant; or 13 (iii) transacts business; or 14 (B) that otherwise meets applicable re- 15 quirements relating to venue under section 16 1391 of title 28, United States Code. 17 (2) SERVICE OF PROCESS.—In an action 18 brought under subsection (a), process may be served 19 in any district in which the defendant— 20 (A) is an inhabitant; or 21 (B) may be found. 22 23 (f) ACTIONS BY OTHER STATE OFFICIALS.— (1) IN GENERAL.—Nothing in this section may 24 be construed to prohibit a State official from pro- 25 ceeding a court of the State in accordance with the •S 2326 IS 12 1 laws of that State on the basis of an alleged viola- 2 tion of any civil or criminal law of that State. 3 (2) CERTAIN ACTIONS IN STATE COURTS.—In 4 addition to any actions brought by an attorney gen- 5 eral of a State under subsection (a), an action de- 6 scribed in paragraph (1) may be brought by any 7 other officer of that State who is authorized by the 8 State to bring such an action in that State on behalf 9 of the residents of the State. 10 11 SEC. 6. ADMINISTRATION AND APPLICABILITY OF ACT. (a) IN GENERAL.—Except as otherwise provided, this 12 Act shall be enforced by the Commission under the Fed13 eral Trade Commission Act (15 U.S.C. 41 et seq.). 14 (b) PROVISIONS.—Compliance with the requirements 15 imposed under this subchapter shall be enforced under— 16 17 (1) section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818), in the case of— 18 (A) national banks, and Federal branches 19 and Federal agencies of foreign banks, by the 20 Office of the Comptroller of the Currency; 21 (B) member banks of the Federal Reserve 22 System (other than national banks), branches 23 and agencies of foreign banks (other than Fed- 24 eral branches, Federal agencies, and insured 25 State branches of foreign banks), commercial •S 2326 IS 13 1 lending companies owned or controlled by for- 2 eign banks, and organizations operating under 3 section 25 or 25(a) of the Federal Reserve Act 4 (12 U.S.C. 601 et seq. and 611 et seq.), by the 5 Board; and 6 (C) banks insured by the Federal Deposit 7 Insurance Corporation (other than members of 8 the Federal Reserve System) and insured State 9 branches of foreign banks, by the Board of Di- 10 rectors of the Federal Deposit Insurance Cor- 11 poration; 12 (2) section 8 of the Federal Deposit Insurance 13 Act (12 U.S.C. 1818), by the Director of the Office 14 of Thrift Supervision, in the case of a savings asso- 15 ciation the deposits of which are insured by the Fed- 16 eral Deposit Insurance Corporation; 17 (3) the Federal Credit Union Act (12 U.S.C. 18 1751 et seq.), by the National Credit Union Admin- 19 istration Board with respect to any Federal credit 20 union; 21 (4) part A of subtitle VII of title 49, by the 22 Secretary of Transportation with respect to any air 23 carrier or foreign air carrier subject to that part; 24 (5) the Packers and Stockyards Act, 1921 (7 25 U.S.C. 181 et seq.) (except as provided in section •S 2326 IS 14 1 406 of that Act (7 U.S.C. 226, 227)), by the Sec- 2 retary of Agriculture with respect to any activities 3 subject to that Act; and 4 (6) the Farm Credit Act of 1971 (12 U.S.C. 5 2001 et seq.) by the Farm Credit Administration 6 with respect to any Federal land bank, Federal land 7 bank association, Federal intermediate credit bank, 8 or production credit association. 9 (c) EXERCISE OF CERTAIN POWERS.—For the pur- 10 pose of the exercise by any agency referred to in sub11 section (a) of its powers under any Act referred to in that 12 subsection, a violation of any requirement imposed under 13 this Act shall be deemed to be a violation of a requirement 14 imposed under that Act. In addition to its powers under 15 any provision of law specifically referred to in subsection 16 (a), each of the agencies referred to in that subsection may 17 exercise, for the purpose of enforcing compliance with any 18 requirement imposed under this Act, any other authority 19 conferred on it by law. 20 (d) ACTIONS BY THE COMMISSION.—The Commis- 21 sion shall prevent any person from violating a rule of the 22 Commission under section 3 in the same manner, by the 23 same means, and with the same jurisdiction, powers, and 24 duties as though all applicable terms and provisions of the 25 Federal Trade Commission Act (15 U.S.C. 41 et seq.) •S 2326 IS 15 1 were incorporated into and made a part of this Act. Any 2 entity that violates such rule shall be subject to the pen3 alties and entitled to the privileges and immunities pro4 vided in the Federal Trade Commission Act in the same 5 manner, by the same means, and with the same jurisdic6 tion, power, and duties as though all applicable terms and 7 provisions of the Federal Trade Commission Act were in8 corporated into and made a part of this Act. 9 (e) EFFECT ON OTHER LAWS.—Nothing contained in 10 the Act shall be construed to limit the authority of the 11 Commission under any other provisions of law. 12 13 SEC. 7. REVIEW. (a) IN GENERAL.—Not later than 5 years after the 14 effective date of the regulations initially issued under sec15 tion 3, the Commission shall— 16 (1) review the implementation of this Act, in- 17 cluding the effect of the implementation of this Act 18 on practices relating to the disclosure of information 19 relating to children; and 20 21 (2) prepare and submit to Congress a report the results of the review under paragraph (1). Æ •S 2326 IS

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