Hawley introduces bill targeting behavioral advertising

Sen. Josh Hawley (R-Mo.) introduced legislation Tuesday that would condition legal protections for online platforms that utilize behavioral advertising, the use of browsing habits to serve tailored ads to users.

The Behavioral Advertising Decisions Are Downgrading Services (BAD ADS) Act would take Section 230 protections away from the biggest tech companies that use the advertising method.

Section 230 of the 1996 Communications Decency Act, which has come under increased scrutiny since President Trump targeted it in an executive order in May, gives internet companies immunity from lawsuits for content posted on their sites by third parties and allows them to make “good faith” efforts to moderate content.

The law is considered foundational for online companies, and the threat of having it revoked has increasingly been proposed as a cudgel to compel platforms to make changes by lawmakers.

Behavioral advertising is also extremely lucrative for online platforms, especially the ones targeted by Hawley’s bill.

Only companies with either 30 million users in the U.S. or 300 million worldwide and $1.5 billion in global revenue would be affected.

The legislation defines behavioral advertising as targeting based on the personal traits of the user, past location info on the user, personal information from a profile about a user made to sell ads or the previous online or offline behavior of the user.

The bill differentiates behavioral from contextual advertising, which it defines as being based on the the content of the website, the current location of the user or the search terms applied to arrive at the website.

“Big Tech’s manipulative advertising regime comes with a massive hidden price tag for consumers while providing almost no return to anyone but themselves,” Hawley said in a statement.

“From privacy violations to harming children to suppression of speech, the ramifications are very real. These kinds of manipulative ads are not what Congress had in mind when passing Section 230, and now is the time to put a stop to this abuse.”

Hawley’s newest bill adds to a pile of legislation in the Senate on Section 230.

The Senate Judiciary Committee advanced one such bill earlier this month that would tie Section 230 protections to efforts to combat child sexual abuse material.

The EARN IT Act would allow federal and state claims against online companies that host child exploitation content.

Critics say the legislation would do little to stop child sex abuse material online and also endanger encryption, which makes it impossible for companies or governments to access private communications between devices.

On Tuesday, the Senate Commerce subcommittee with jurisdiction over the internet is holding a hearing on the PACT Act, which would require greater transparency around platforms’ decisions to moderate their users’ content.

Hawley himself also introduced a bill earlier this year that would require platforms add a pledge of “good faith” to their terms of service and amend Section 230 let users sue online companies.

Trump signed an executive order in May that, among other things, directs an agency within the Commerce Department to file a petition with the Federal Communications Commission (FCC) to clarify the scope of Section 230.

That subagency, the National Telecommunications and Information Administration, filed that petition Monday.

The filing calls on the FCC to reinterpret the 1996 law to require transparency in how social media companies moderate content to “enable users to make more informed choices about competitive alternatives.”

The executive order was signed just days after Twitter first appended a fact-checking label to one of Trump’s tweets, which falsely claimed mail-in voting would lead to a rigged election.

FCC Commissioner Jessica Rosenworcel, one of the two Democrats of the five-member agency, said the commission should reject the petition.

“The FCC shouldn’t take this bait. While social media can be frustrating, turning this agency into the President’s speech police is not the answer,” she said in a statement Monday.