Senator Introduces Behavioral Advertising Bill, Threatening Removal of Section 230 Immunity

Sen. Josh Hawley (R-Mo.) introduced legislation on Tuesday to amend Section 230 of the Communications Decency Act by limiting protections for large online platforms that use or contribute to advertising based on their users’ actions or traits. Platforms engaging in this type of behavioral advertising could be held liable under this new legislation.

The introduced legislation, the “Behavioral Advertising Decisions Are Downgrading Services” (BAD ADS) Act would penalize large tech companies that sell or show this targeted behavioral advertising by removing their Section 230 protections. Section 230 provides online platforms with immunity and protections from lawsuits over content that users post on their platforms, while allowing them to make “good faith” content moderation efforts. Section 230 has been closely examined by lawmakers over concerns about technology companies’ content moderation.

The bill defines behavior advertising as an advertisement displayed to a user online based on “the personal traits of the user,” “previous location information with respect to the user,” “personal information from a profile about the user that is created for the purpose of selling advertisements,” and “the previous online or offline behavior of the user.” The bill distinguishes this type of advertising from contextual advertising, which it described as advertising based on “the content of the website,” “the location of the user,” and “the search terms that the user applied.” BAD ADS Act only targets companies with either 30 million users in the United States or 300 million worldwide users and $1.5 billion in global revenue. The legislation aims to regulate large invasive data gathering practices, which is allegedly used to target users based on their behavior.

“Big Tech’s manipulative advertising regime comes with a massive hidden price tag for consumers while providing almost no return to anyone but themselves,” Sen. Hawley said. “From privacy violations to harming children to suppression of speech, the ramifications are very real.”

On Tuesday, the Senate Commerce subcommittee with internet jurisdiction is holding a hearing on Sens. John Thune’s (R-S.D.) and Brian Schatz’s (D-Hawaii) PACT Act, which requires platforms to provide more information about their content moderation policies and procedures to be more transparent with the public. Additionally, on Monday the National Telecommunications and Information Administration (part of the Department of Commerce) filed a petition with the Federal Communications Commission to clarify the scope of Section 230.

Sen. Hawley’s legislation is the latest among other attempts to amend Section 230. For example, Sens. John Thune (R-S.D.) and Brian Schatz (D-Hawaii) introduced legislation to reform Section 230 in June, President Trump signed an executive order in May to “clarify” Section 230 immunity, and Senators introduced the EARN IT Act in March.