On May 9, 2011, Senator Jay Rockefeller (D-WV), the Chairman of the Senate Committee on Commerce, Science and Transportation, introduced the “Do-Not-Track Online Act of 2011” (the “Act”).  The Act instructs the Federal Trade Commission to promulgate regulations that would (1) create standards for the implementation of a “Do Not Track” mechanism that would enable individuals to express a desire to not be tracked online and (2) prohibit online service providers from tracking individuals who express such a desire.  The regulations would allow online service providers to track individuals who do not want to be tracked only if (1) the tracking is necessary to provide a service requested by the individual (and the individuals’ information is anonymized or deleted when the service is provided), or (2) the individual is given clear notice about the tracking and affirmatively consents to the tracking.

In developing the standards for the Do Not Track mechanism, the Act requires the FTC to take several factors into consideration, including (1) the scope of the standards, (2) the technical feasibility and costs of implementing and complying with a Do Not Track mechanism, (3) existing Do Not Track mechanisms that have already been developed and (4) how a Do Not Track mechanism should be publicized.  The Act gives the FTC the power to enforce the rules pertaining to a Do Not Track mechanism by treating violations as unfair and deceptive acts or practices, and also authorizes state attorneys general to bring civil actions for violations of the Act.  The Act sets forth civil penalties of up to $16,000 per day for violations, with a maximum total liability of $15,000,000.  Finally, the Act requires the FTC to conduct biennial reviews to assess the effectiveness of the regulations on online commerce, and to submit a report to Congress on the results of the review.

Senator Rockefeller’s bill follows a similar major federal bill introduced by Representative Jackie Speier in February 2011.