Republican Senator Josh Hawley, a frequent critic of tech companies, has unveiled a bill that would require web publishers to avoid personalized advertising in order to maintain their protections from lawsuits based on users' speech.
“Big Tech’s manipulative advertising regime comes with a massive hidden price tag for consumers while providing almost no return to anyone but themselves,” the Missouri lawmaker stated Tuesday.
His proposed “Behavioral Advertising Decisions Are Downgrading Services (BAD ADS) Act” would strip large web companies of the protection of Section 230 of the Communications Decency Act if the companies either engage in what he calls “behavioral advertising,” or allow users' data to be collected for such advertising. Currently, Section 230 generally protects web companies from lawsuits based on material posted by users, including posts that are defamatory or violate state laws.
While the bill uses the phrase behavioral advertising, it appears to apply to personalized advertising more broadly. The measure's definition of behavioral advertising includes ads served based on personal traits, historic location data, information from user profiles created for ad purposes, and data about historic online or offline behavior.
The proposed prohibitions wouldn't apply to “contextual” advertising -- including ads served based on the content on a page the user is currently visiting, and users' current locations.
The measure would only apply to companies with more than 30 million U.S. users or more than 300 million worldwide users, and with more than $1.5 billion in global revenue.
Hawley's proposed bill appears to effectively suspend web companies' legal protections for activity by users that occurs within 30 days of the companies' display of personalized advertising, or collection of data for personalized ads.
While other lawmakers have proposed revising Section 230, their bills have mainly focused on tying the law's protections to the sites' policies on content.
For instance, the proposed PACT Act would require large web platforms to take down content deemed illegal by a judge within 24 hours of the ruling.
Hawley himself previously proposed that Section 230 protections should only be available to companies that don't discriminate based on viewpoints.
By contrast, his current proposal would amend the law in a way that's unrelated to websites' policies about content. For that reason, the proposal strikes some observers as an attempt to abolish personalized advertising.
“The bill's really not about Section 230,” says Santa Clara University law professor Eric Goldman, an expert in that law. “It uses Section 230 as the carrot and stick to ban behavioral advertising.”
He adds that the bill raise constitutional concerns, given that the First Amendment protects commercial speech -- though to a lesser extent than political speech.
“It's my position that a flat ban on behavioral advertising would be unconstitutional,” Goldman says. “If that's the case, conditioning Section 230 on a behavioral-advertising ban would be unconstitutional.”