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H.R. 651, Public Health Emergency Privacy Act

Summary

House bill 651, the Public Health Emergency Privacy Act, was introduced February 1, 2021 by Ms. ESHOO, with cosponsors named in the heading, and referred to the Committee on Energy and Commerce. It is a bill to protect the privacy of health information during a national health emergency. Section 2 defines terms including affirmative express consent, collect, demographic data and covered organization, and states that the Commission means the Federal Trade Commission. A covered organization includes any person that collects, uses, or discloses emergency health data electronically or that develops or operates a website, web application or mobile application for responding to the COVID–19 public health emergency.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Issuer
Congressional materials
Document type
Bills Bills 117Hr651Ih Bills 117Hr651Ih
Case
Bills Bills 117Hr651Ih Bills 117Hr651Ih

Cite this document

“H.R. 651, Public Health Emergency Privacy Act.” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/bills-bills-117hr651ih-bills-117hr651ih/, SHA-256 436a97288ca7e717b7797f22a179f96c6b80d5b0f878eb087b79f41a1853e824.

Full text

                                                                                                                                                                      I




                                                                     117TH CONGRESS
                                                                        1ST SESSION
                                                                                                             H. R. 651
                                                                            To protect the privacy of health information during a national health
                                                                                                         emergency.




                                                                                   IN THE HOUSE OF REPRESENTATIVES
                                                                                                 FEBRUARY 1, 2021
                                                                     Ms. ESHOO (for herself, Ms. SCHAKOWSKY, Ms. DELBENE, Mr. BEYER, Mr.
                                                                         MCNERNEY, Ms. BARRAGÁN, Mr. POCAN, Mr. RUSH, Mr. WELCH, Ms.
                                                                         SCANLON, Ms. MATSUI, Mr. LIEU, Mr. DESAULNIER, Mrs. HAYES, Mr.
                                                                         KHANNA, Mr. GARCÍA of Illinois, Mr. LYNCH, Mr. GRIJALVA, Ms. LEE
                                                                         of California, Mrs. DINGELL, Mr. DEFAZIO, Mr. JOHNSON of Georgia,
                                                                         and Ms. PORTER) introduced the following bill; which was referred to the
                                                                         Committee on Energy and Commerce




                                                                                                               A BILL
                                                                             To protect the privacy of health information during a
                                                                                          national health emergency.

                                                                       1              Be it enacted by the Senate and House of Representa-
                                                                       2 tives of the United States of America in Congress assembled,
                                                                       3     SECTION 1. SHORT TITLE.

                                                                       4              This Act may be cited as the ‘‘Public Health Emer-
                                                                       5 gency Privacy Act’’.
                                                                       6     SEC. 2. DEFINITIONS.




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                                                                       7              In this Act:




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                                                                       1                        (1) AFFIRMATIVE                       EXPRESS              CONSENT.—The

                                                                       2              term ‘‘affirmative express consent’’ means an affirm-
                                                                       3              ative act by an individual that—
                                                                       4                                 (A) clearly and conspicuously commu-
                                                                       5                        nicates the individual’s authorization of an act
                                                                       6                        or practice;
                                                                       7                                 (B) is made in the absence of any mecha-
                                                                       8                        nism in the user interface that has the purpose
                                                                       9                        or substantial effect of obscuring, subverting, or
                                                                     10                         impairing decision making or choice to obtain
                                                                     11                         consent; and
                                                                     12                                  (C) cannot be inferred from inaction.
                                                                     13                         (2) COLLECT.—The term ‘‘collect’’, with re-
                                                                     14               spect to emergency health data, means obtaining in
                                                                     15               any manner by a covered organization.
                                                                     16                         (3) COMMISSION.—The term ‘‘Commission’’
                                                                     17               means the Federal Trade Commission.
                                                                     18                         (4) COVERED ORGANIZATION.—
                                                                     19                                  (A) IN GENERAL.—The term ‘‘covered or-
                                                                     20                         ganization’’ means any person (including a gov-
                                                                     21                         ernment entity)—
                                                                     22                                         (i) that collects, uses, or discloses
                                                                     23                                  emergency health data electronically or
                                                                     24                                  through communication by wire or radio;



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                                                                     25                                  or


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                                                                       1                                        (ii) that develops or operates a
                                                                       2                                 website, web application, mobile applica-
                                                                       3                                 tion, mobile operating system feature, or
                                                                       4                                 smart device application for the purpose of
                                                                       5                                 tracking, screening, monitoring, contact
                                                                       6                                 tracing, or mitigation, or otherwise re-
                                                                       7                                 sponding to the COVID–19 public health
                                                                       8                                 emergency.
                                                                       9                                 (B) EXCLUSIONS.—The term ‘‘covered or-
                                                                     10                         ganization’’ does not include—
                                                                     11                                         (i) a health care provider;
                                                                     12                                         (ii) a person engaged in a de minimis
                                                                     13                                  collection             or    processing                of     emergency
                                                                     14                                  health data;
                                                                     15                                         (iii) a service provider;
                                                                     16                                         (iv) a person acting in their individual
                                                                     17                                  or household capacity; or
                                                                     18                                         (v) a public health authority.
                                                                     19                         (5) DEMOGRAPHIC DATA.—The term ‘‘demo-
                                                                     20               graphic data’’ means information relating to the ac-
                                                                     21               tual or perceived race, color, ethnicity, national ori-
                                                                     22               gin, religion, sex, gender, gender identity, sexual ori-
                                                                     23               entation, age, Tribal affiliation, disability, domicile,
                                                                     24               employment status, familial status, immigration sta-



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                                                                       1              tus, or veteran status of an individual or group of
                                                                       2              individuals.
                                                                       3                        (6) DEVICE.—The term ‘‘device’’ means any
                                                                       4              electronic equipment that is primarily designed for
                                                                       5              or marketed to consumers.
                                                                       6                        (7) DISCLOSURE.—The term ‘‘disclosure’’, with
                                                                       7              respect to emergency health data, means the releas-
                                                                       8              ing, transferring, selling, providing access to, licens-
                                                                       9              ing, or divulging in any manner by a covered organi-
                                                                     10               zation to a third party.
                                                                     11                         (8) EMERGENCY                       HEALTH            DATA.—The       term
                                                                     12               ‘‘emergency health data’’ means data linked or rea-
                                                                     13               sonably linkable to an individual or device, including
                                                                     14               data inferred or derived about the individual or de-
                                                                     15               vice from other collected data provided such data is
                                                                     16               still linked or reasonably linkable to the individual or
                                                                     17               device, that concerns the public COVID–19 health
                                                                     18               emergency. Such data includes—
                                                                     19                                  (A) information that reveals the past,
                                                                     20                         present, or future physical or behavioral health
                                                                     21                         or condition of, or provision of healthcare to, an
                                                                     22                         individual, including—
                                                                     23                                         (i) data derived from the testing or
                                                                     24                                  examination of a body part or bodily sub-



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                                                                     25                                  stance, or a request for such testing;


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                                                                       1                                        (ii) whether or not an individual has
                                                                       2                                 contracted or been tested for, or an esti-
                                                                       3                                 mate of the likelihood that a particular in-
                                                                       4                                 dividual may contract, such disease or dis-
                                                                       5                                 order; and
                                                                       6                                        (iii) genetic data, biological samples,
                                                                       7                                 and biometrics; and
                                                                       8                                 (B) other data collected in conjunction
                                                                       9                        with other emergency health data or for the
                                                                     10                         purpose of tracking, screening, monitoring, con-
                                                                     11                         tact tracing, or mitigation, or otherwise re-
                                                                     12                         sponding to the COVID–19 public health emer-
                                                                     13                         gency, including—
                                                                     14                                         (i) geolocation data, when such term
                                                                     15                                  means data capable of determining the
                                                                     16                                  past or present precise physical location of
                                                                     17                                  an individual at a specific point in time,
                                                                     18                                  taking account of population densities, in-
                                                                     19                                  cluding cell-site location information, tri-
                                                                     20                                  angulation data derived from nearby wire-
                                                                     21                                  less or radio frequency networks, and glob-
                                                                     22                                  al positioning system data;
                                                                     23                                         (ii) proximity data, when such term
                                                                     24                                  means information that identifies or esti-



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                                                                     25                                  mates the past or present physical prox-


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                                                                       1                                 imity of one individual or device to an-
                                                                       2                                 other, including information derived from
                                                                       3                                 Bluetooth, audio signatures, nearby wire-
                                                                       4                                 less networks, and near-field communica-
                                                                       5                                 tions;
                                                                       6                                        (iii) demographic data;
                                                                       7                                        (iv) contact information for identifi-
                                                                       8                                 able individuals or a history of the individ-
                                                                       9                                 ual’s contacts over a period of time, such
                                                                     10                                  as an address book or call log; and
                                                                     11                                         (v) any other data collected from a
                                                                     12                                  personal device.
                                                                     13                         (9) GOVERNMENT ENTITY.—The term ‘‘govern-
                                                                     14               ment entity’’ includes a Federal agency, a State, a
                                                                     15               local government, and other organizations, as such
                                                                     16               terms are defined in section 3371 of title 5, United
                                                                     17               States Code.
                                                                     18                         (10) HEALTH                     CARE         PROVIDER.—The            term
                                                                     19               ‘‘health care provider’’ has the meaning given the
                                                                     20               term ‘‘eligible health care provider’’ in title VIII of
                                                                     21               division B the CARES Act (Public Law 116–136).
                                                                     22                         (11)         HIPAA                  REGULATIONS.—The                  term
                                                                     23               ‘‘HIPAA regulations’’ means parts 160 and 164 of
                                                                     24               title 45, Code of Federal Regulations.



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                                                                       1                        (12) PUBLIC HEALTH AUTHORITY.—The term
                                                                       2              ‘‘public health authority’’ means an entity that is
                                                                       3              authorized by law to collect or receive information
                                                                       4              for the purpose of preventing or controlling disease,
                                                                       5              injury, or disability including, but not limited to, the
                                                                       6              reporting of disease, injury, vital events such as
                                                                       7              birth or death, and the conduct of public health sur-
                                                                       8              veillance, public health investigations, and public
                                                                       9              health interventions, and a person, such as a des-
                                                                     10               ignated agency or associate, acting under a grant of
                                                                     11               authority from, or under a contract with, such public
                                                                     12               entity, including the employees or agents of such en-
                                                                     13               tity or its contractors or persons or entities to whom
                                                                     14               it has granted authority.
                                                                     15                         (13)        COVID–19                 PUBLIC             HEALTH        EMER-

                                                                     16               GENCY.—The term ‘‘COVID–19 public health emer-

                                                                     17               gency’’ means the outbreak and public health re-
                                                                     18               sponse pertaining to Coronavirus Disease 2019
                                                                     19               (COVID–19), associated with the emergency de-
                                                                     20               clared by the Secretary on January 31, 2020, under
                                                                     21               section 319 of the Public Health Service Act (42
                                                                     22               U.S.C. 247d), and any renewals thereof and any
                                                                     23               subsequent declarations by the Secretary related to
                                                                     24               the coronavirus.



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                                                                       1                        (14)        SECRETARY.—The                          term          ‘‘Secretary’’
                                                                       2              means the Secretary of Health and Human Services.
                                                                       3                        (15) SERVICE PROVIDER.—
                                                                       4                                 (A) IN GENERAL.—The term ‘‘service pro-
                                                                       5                        vider’’ means a person that collects, uses, or
                                                                       6                        discloses emergency health data for the sole
                                                                       7                        purpose of, and only to the extent that such en-
                                                                       8                        tity is, conducting business activities on behalf
                                                                       9                        of, for the benefit of, under instruction of, and
                                                                     10                         under contractual agreement with a covered or-
                                                                     11                         ganization.
                                                                     12                                  (B) LIMITATION OF APPLICATION.—Such
                                                                     13                         person shall only be considered a service pro-
                                                                     14                         vider in the course of activities described in
                                                                     15                         subparagraph (A).
                                                                     16                                  (C) EXCLUSIONS.—The term ‘‘service pro-
                                                                     17                         vider’’ excludes a person that develops or oper-
                                                                     18                         ates a website, web application, mobile applica-
                                                                     19                         tion, or smart device application for the purpose
                                                                     20                         of tracking, screening, monitoring, contact trac-
                                                                     21                         ing, or mitigation, or otherwise responding to
                                                                     22                         the COVID–19 public health emergency.
                                                                     23                         (16) STATE.—The term ‘‘State’’ means each
                                                                     24               State of the United States, the District of Columbia,



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                                                                     25               each commonwealth, territory, or possession of the


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                                                                       1              United States, and each federally recognized Indian
                                                                       2              Tribe.
                                                                       3                        (17) THIRD PARTY.—
                                                                       4                                 (A) IN GENERAL.—The term ‘‘third party’’
                                                                       5                        means, with respect to a covered organization—
                                                                       6                                        (i) another person to whom such cov-
                                                                       7                                 ered        organization               disclosed             emergency
                                                                       8                                 health data; and
                                                                       9                                        (ii) a corporate affiliate or a related
                                                                     10                                  party of the covered organization that does
                                                                     11                                  not have a direct relationship with an indi-
                                                                     12                                  vidual with whom the emergency health
                                                                     13                                  data is linked or is reasonably linkable.
                                                                     14                                  (B) EXCLUSION.—The term ‘‘third party’’
                                                                     15                         excludes, with respect to a covered organiza-
                                                                     16                         tion—
                                                                     17                                         (i) a service provider of such covered
                                                                     18                                  organization; or
                                                                     19                                         (ii) a public health authority.
                                                                     20                         (18) USE.—The term ‘‘use’’, with respect to
                                                                     21               emergency health data, means the processing, em-
                                                                     22               ployment, application, utilization, examination, or
                                                                     23               analysis of such data by a covered organization that
                                                                     24               maintains such data.



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                                                                       1     SEC. 3. PROTECTING THE PRIVACY AND SECURITY OF

                                                                       2                             EMERGENCY HEALTH DATA.

                                                                       3              (a) RIGHT TO PRIVACY.—A covered organization that
                                                                       4 collects emergency health data shall—
                                                                       5                        (1) only collect, use, or disclose such data that
                                                                       6              is necessary, proportionate, and limited for a good
                                                                       7              faith public health purpose, including a service or
                                                                       8              feature to support such a purpose;
                                                                       9                        (2) take reasonable measures, where possible, to
                                                                     10               ensure the accuracy of emergency health data and
                                                                     11               provide an effective mechanism for an individual to
                                                                     12               correct inaccurate information;
                                                                     13                         (3) adopt reasonable safeguards to prevent un-
                                                                     14               lawful discrimination on the basis of emergency
                                                                     15               health data; and
                                                                     16                         (4) only disclose such data to a government en-
                                                                     17               tity when the disclosure—
                                                                     18                                  (A) is to a public health authority; and
                                                                     19                                  (B) is made solely for good faith public
                                                                     20                         health purposes and in direct response to exi-
                                                                     21                         gent circumstances.
                                                                     22               (b) RIGHT TO SECURITY.—A covered organization or
                                                                     23 service provider that collects, uses, or discloses emergency
                                                                     24 health data shall establish and implement reasonable data




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                                                                     25 security policies, practices, and procedures to protect the
                                                                     26 security and confidentiality of emergency health data.
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                                                                       1              (c) PROHIBITED USES.—A covered organization shall
                                                                       2 not collect, use, or disclose emergency health data for any
                                                                       3 purpose not authorized under this section, including—
                                                                       4                        (1) commercial advertising, recommendation for
                                                                       5              e-commerce, or the training of machine-learning al-
                                                                       6              gorithms related to, or subsequently for use in, com-
                                                                       7              mercial advertising and e-commerce;
                                                                       8                        (2) soliciting, offering, selling, leasing, licensing,
                                                                       9              renting, advertising, marketing, or otherwise com-
                                                                     10               mercially contracting for employment, finance, cred-
                                                                     11               it, insurance, housing, or education opportunities in
                                                                     12               a manner that discriminates or otherwise makes op-
                                                                     13               portunities unavailable on the basis of emergency
                                                                     14               health data; and
                                                                     15                         (3) segregating, discriminating in, or otherwise
                                                                     16               making unavailable the goods, services, facilities,
                                                                     17               privileges, advantages, or accommodations of any
                                                                     18               place of public accommodation (as such term is de-
                                                                     19               fined in section 301 of the Americans With Disabil-
                                                                     20               ities Act of 1990 (42 U.S.C. 12181)), except as au-
                                                                     21               thorized by a State or Federal Government entity
                                                                     22               for a public health purpose notwithstanding sub-
                                                                     23               section (g).
                                                                     24               (d) CONSENT.—



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                                                                       1                        (1) IN GENERAL.—It shall be unlawful for a
                                                                       2              covered organization to collect, use, or disclose emer-
                                                                       3              gency health data, unless—
                                                                       4                                 (A) the individual to whom the data per-
                                                                       5                        tains has given affirmative express consent to
                                                                       6                        such collection, use, or disclosure;
                                                                       7                                 (B) such collection, use, or disclosure is
                                                                       8                        necessary and for the sole purpose of—
                                                                       9                                        (i) protecting against malicious, de-
                                                                     10                                  ceptive, fraudulent, or illegal activity; or
                                                                     11                                         (ii) detecting, responding to, or pre-
                                                                     12                                  venting information security incidents or
                                                                     13                                  threats; or
                                                                     14                                  (C) the covered organization is compelled
                                                                     15                         to do so by a legal obligation.
                                                                     16                         (2) REVOCATION.—
                                                                     17                                  (A) IN GENERAL.—A covered organization
                                                                     18                         shall provide an effective mechanism for an in-
                                                                     19                         dividual to revoke consent after it is given.
                                                                     20                                  (B) EFFECT.—After an individual revokes
                                                                     21                         consent, the covered organization shall cease
                                                                     22                         collecting, using, or disclosing the individual’s
                                                                     23                         emergency health data as soon as practicable,
                                                                     24                         but in no case later than 15 days after the re-



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                                                                     25                         ceipt of the individual’s revocation of consent.


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                                                                       1                                 (C) DESTRUCTION.—Not later than 30
                                                                       2                        days after the receipt of an individual’s revoca-
                                                                       3                        tion of consent, a covered organization shall de-
                                                                       4                        stroy or render not linkable that individual’s
                                                                       5                        emergency health data under the same proce-
                                                                       6                        dures in subsection (f).
                                                                       7              (e) NOTICE.—A covered organization that collects,
                                                                       8 uses, or discloses emergency health data shall provide to
                                                                       9 an individual a privacy policy that—
                                                                     10                         (1) is disclosed in a clear and conspicuous man-
                                                                     11               ner, in the language in which the individual typically
                                                                     12               interacts with the covered organization, prior to or
                                                                     13               at the point of the collection of emergency health
                                                                     14               data;
                                                                     15                         (2) describes how and for what purposes the
                                                                     16               covered organization collects, uses, and discloses
                                                                     17               emergency health data, including the categories of
                                                                     18               recipients to whom it discloses data and the purpose
                                                                     19               of disclosure for each category;
                                                                     20                         (3) describes the covered organization’s data re-
                                                                     21               tention and data security policies and practices for
                                                                     22               emergency health data; and
                                                                     23                         (4) describes how an individual may exercise
                                                                     24               the rights under this Act and how to contact the



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                                                                     25               Commission to file a complaint.


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                                                                       1              (f) PUBLIC REPORTING.—
                                                                       2                        (1) IN GENERAL.—A covered organization that
                                                                       3              collects, uses, or discloses emergency health data of
                                                                       4              at least 100,000 individuals shall, at least once every
                                                                       5              90 days, issue a public report—
                                                                       6                                 (A) stating in aggregate terms the number
                                                                       7                        of individuals whose emergency health data the
                                                                       8                        covered organization collected, used, or dis-
                                                                       9                        closed to the extent practicable; and
                                                                     10                                  (B) describing the categories of emergency
                                                                     11                         health data collected, used, or disclosed, the
                                                                     12                         purposes for which each such category of emer-
                                                                     13                         gency health data was collected, used, or dis-
                                                                     14                         closed, and the categories of third parties to
                                                                     15                         whom it was disclosed.
                                                                     16                         (2) RULES               OF       CONSTRUCTION.—Nothing                in
                                                                     17               this subsection shall be construed to require a cov-
                                                                     18               ered organization to—
                                                                     19                                  (A) take an action that would convert data
                                                                     20                         that is not emergency health data into emer-
                                                                     21                         gency health data;
                                                                     22                                  (B) collect or maintain emergency health
                                                                     23                         data that the covered organization would other-
                                                                     24                         wise not maintain; or



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                                                                       1                                 (C) maintain emergency health data longer
                                                                       2                        than the covered organization would otherwise
                                                                       3                        maintain such data.
                                                                       4              (g) REQUIRED DATA DESTRUCTION.—
                                                                       5                        (1) IN GENERAL.—A covered organization may
                                                                       6              not use or maintain emergency health data of an in-
                                                                       7              dividual after the later of—
                                                                       8                                 (A) the date that is 60 days after the ter-
                                                                       9                        mination of the public health emergency de-
                                                                     10                         clared by the Secretary on January 31, 2020,
                                                                     11                         pertaining             to       Coronavirus                    Disease   2019
                                                                     12                         (COVID–19) under section 319 of Public
                                                                     13                         Health Service Act (42 U.S.C. 247d) and any
                                                                     14                         renewals thereof;
                                                                     15                                  (B) the date that is 60 days after the ter-
                                                                     16                         mination of a public health emergency declared
                                                                     17                         by a governor or chief executive of a State per-
                                                                     18                         taining to Coronavirus Disease 2019 (COVID–
                                                                     19                         19) in which the individual resides; or
                                                                     20                                  (C) 60 days after collection.
                                                                     21                         (2)      REQUIREMENT.—For                             the         requirements
                                                                     22               under paragraph (1), data shall be destroyed or ren-
                                                                     23               dered not linkable in such a manner that it is impos-
                                                                     24               sible or demonstrably impracticable to identify any



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                                                                     25               individual from the data.


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                                                                       1                        (3) RELATION TO CERTAIN REQUIREMENTS.—
                                                                       2              The provisions of this subsection shall not supersede
                                                                       3              any requirements or authorizations under—
                                                                       4                                 (A) the Privacy Act of 1974 (Public Law
                                                                       5                        93–79);
                                                                       6                                 (B) the HIPAA regulations; or
                                                                       7                                 (C) Federal or State medical records reten-
                                                                       8                        tion and health privacy laws or regulations, or
                                                                       9                        other applicable Federal or State laws.
                                                                     10               (h) EMERGENCY DATA COLLECTED, USED, OR DIS-
                                                                     11      CLOSED BEFORE ENACTMENT.—

                                                                     12                         (1) INITIATING                   A     RULEMAKING.—Not                later
                                                                     13               than 7 days after the date of enactment of this Act,
                                                                     14               the Commission shall initiate a public rulemaking to
                                                                     15               promulgate regulations to ensure a covered organiza-
                                                                     16               tion that has collected, used, or disclosed emergency
                                                                     17               health data before the date of enactment of this Act
                                                                     18               is in compliance with this Act, to the degree prac-
                                                                     19               ticable.
                                                                     20                         (2) COMPLETING A RULEMAKING.—The Com-
                                                                     21               mission shall complete the rulemaking within 45
                                                                     22               days after the date of enactment of this Act.
                                                                     23               (i) NON-APPLICATION TO MANUAL CONTACT TRAC-
                                                                     24      ING AND CASE INVESTIGATION.—Nothing in this Act shall




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                                                                       1 from administering programs or activities to identify indi-
                                                                       2 viduals who have contracted, or may have been exposed
                                                                       3 to, COVID–19 through interviews, outreach, case inves-
                                                                       4 tigation, and other recognized investigatory measures by
                                                                       5 a public health authority or their designated agent in-
                                                                       6 tended to monitor and mitigate the transmission of a dis-
                                                                       7 ease or disorder.
                                                                       8              (j) RESEARCH AND DEVELOPMENT.—This section
                                                                       9 shall not be construed to prohibit—
                                                                     10                         (1) public health or scientific research associ-
                                                                     11               ated with the COVID–19 public health emergency
                                                                     12               by—
                                                                     13                                  (A) a public health authority;
                                                                     14                                  (B) a nonprofit organization, as described
                                                                     15                         in section 501(c)(3) of the Internal Revenue
                                                                     16                         Code of 1986; or
                                                                     17                                  (C) an institution of higher education, as
                                                                     18                         such term is defined in section 101 of the High-
                                                                     19                         er Education Act of 1965 (20 U.S.C. 1001); or
                                                                     20                         (2) research, development, manufacture, or dis-
                                                                     21               tribution of a drug, biological product, or vaccine
                                                                     22               that relates to a disease or disorder that is associ-
                                                                     23               ated or potentially associated with a public health
                                                                     24               emergency.



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                                                                       1              (k) LEGAL REQUIREMENTS.—Notwithstanding sub-
                                                                       2 section (a)(5), nothing in this Act shall be construed to
                                                                       3 prohibit a good faith response to, or compliance with, oth-
                                                                       4 erwise valid subpoenas, court orders, or other legal proc-
                                                                       5 esses, or to prohibit storage or providing information as
                                                                       6 otherwise required by law.
                                                                       7              (l) APPLICATION TO HIPAA COVERED ENTITIES.—
                                                                       8                        (1) IN GENERAL.—This Act does not apply to
                                                                       9              a ‘‘covered entity’’ or a person acting as a ‘‘business
                                                                     10               associate’’ under the HIPAA regulations (to the ex-
                                                                     11               tent that such entities or associates are acting in
                                                                     12               such capacity) or any health care provider.
                                                                     13                         (2) GUIDANCE FOR CONSISTENCY.—Not later
                                                                     14               than 30 days after the date of enactment of this
                                                                     15               Act, the Secretary shall promulgate guidance on the
                                                                     16               applicability of requirements, similar to those in this
                                                                     17               section to ‘‘covered entities’’ and persons acting as
                                                                     18               ‘‘business associates’’ under the HIPAA regulations.
                                                                     19               In promulgating such guidance, the Secretary shall
                                                                     20               reduce duplication of requirements and may exclude
                                                                     21               a requirement of this section if such requirement is
                                                                     22               already a requirement of the HIPAA regulations.
                                                                     23      SEC. 4. PROTECTING THE RIGHT TO VOTE.

                                                                     24               (a) IN GENERAL.—A government entity may not, and



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                                                                       1 the basis of an individual’s emergency health data, medical
                                                                       2 condition, or participation or non-participation in a pro-
                                                                       3 gram to collect emergency health data—
                                                                       4                        (1) deny, restrict, or interfere with the right to
                                                                       5              vote in a Federal, State, or local election;
                                                                       6                        (2) attempt to deny, restrict, or interfere with
                                                                       7              the right to vote in a Federal, State, or local elec-
                                                                       8              tion; or
                                                                       9                        (3) retaliate against an individual for voting in
                                                                     10               a Federal, State, or local election.
                                                                     11               (b) CIVIL ACTION.—In the case of any violation of
                                                                     12 subsection (a), an individual may bring a civil action to
                                                                     13 obtain appropriate relief against a government entity in
                                                                     14 a Federal district court.
                                                                     15      SEC. 5. REPORTS ON CIVIL RIGHTS IMPACTS.

                                                                     16               (a) REPORT REQUIRED.—The Secretary, in consulta-
                                                                     17 tion with the United States Commission on Civil Rights
                                                                     18 and the Commission, shall prepare and submit to Con-
                                                                     19 gress reports that examines the civil rights impact of the
                                                                     20 collection, use, and disclosure of health information in re-
                                                                     21 sponse to the COVID–19 public health emergency.
                                                                     22               (b) SCOPE OF REPORT.—Each report required under
                                                                     23 subsection (a) shall, at a minimum—
                                                                     24                         (1) evaluate the impact of such practices on



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                                                                     25               civil rights and protections for individuals based on


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                                                                       1              race, color, ethnicity, national origin, religion, sex,
                                                                       2              gender, gender identity, sexual orientation, age,
                                                                       3              Tribal affiliation, disability, domicile, employment
                                                                       4              status, familial status, immigration status, or vet-
                                                                       5              eran status;
                                                                       6                        (2) analyze the impact, risks, costs, legal con-
                                                                       7              siderations, disparate impacts, and other implica-
                                                                       8              tions to civil rights of policies to incentivize or re-
                                                                       9              quire the adoption of digital tools or apps used for
                                                                     10               contact tracing, exposure notification, or health
                                                                     11               monitoring; and
                                                                     12                         (3) include recommendations on preventing and
                                                                     13               addressing undue or disparate impact, segregation,
                                                                     14               discrimination, or infringements of civil rights in the
                                                                     15               collection and use of health information, including
                                                                     16               during a national health emergency.
                                                                     17               (c) TIMING.—
                                                                     18                         (1) INITIAL REPORT.—The Secretary shall sub-
                                                                     19               mit an initial report under subsection (a) not sooner
                                                                     20               than 9 months, and not later than 12 months after
                                                                     21               the date of enactment of this Act.
                                                                     22                         (2) SUBSEQUENT                       REPORTS.—The                     Secretary
                                                                     23               shall submit reports annually after the initial report
                                                                     24               required under paragraph (1) until 1 year after the



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                                                                     25               termination of any public health emergency per-


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                                                                       1              taining to Coronavirus Disease 2019 (COVID–19)
                                                                       2              under section 319 of Public Health Service Act (42
                                                                       3              U.S.C. 247d).
                                                                       4     SEC. 6. ENFORCEMENT.

                                                                       5              (a) FEDERAL TRADE COMMISSION.—
                                                                       6                        (1) UNFAIR OR DECEPTIVE ACTS OR PRAC-
                                                                       7              TICES.—A violation of this Act or a regulation pro-

                                                                       8              mulgated under this Act shall be treated as a viola-
                                                                       9              tion of a rule defining an unfair or deceptive act or
                                                                     10               practice under section 18(a)(1)(B) of the Federal
                                                                     11               Trade Commission Act (15 U.S.C. 57a(a)(1)(B)) re-
                                                                     12               garding unfair or deceptive acts or practices.
                                                                     13                         (2) POWERS OF COMMISSION.—The Commis-
                                                                     14               sion shall enforce this Act and the regulations pro-
                                                                     15               mulgated under this Act in the same manner, by the
                                                                     16               same means, and with the same jurisdiction, powers,
                                                                     17               and duties as though all applicable terms and provi-
                                                                     18               sions of the Federal Trade Commission Act (15
                                                                     19               U.S.C. 41 et seq.) were incorporated into and made
                                                                     20               a part of this Act. Any person who violates this Act
                                                                     21               or a regulation promulgated under this Act shall be
                                                                     22               subject to the penalties and entitled to the privileges
                                                                     23               and immunities provided in the Federal Trade Com-
                                                                     24               mission Act. Provided, however, that, notwith-



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                                                                     25               standing the requirements of section 16(a) of the


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                                                                       1              Federal Trade Commission Act (15 U.S.C. 56(a)),
                                                                       2              the Commission shall have the exclusive authority to
                                                                       3              commence or defend, and supervise the litigation of,
                                                                       4              any action for a violation of this Act or a regulation
                                                                       5              promulgated under this Act and any appeal of such
                                                                       6              action in its own name by any of its attorneys des-
                                                                       7              ignated by it for such purpose, without first refer-
                                                                       8              ring the matter to the Attorney General.
                                                                       9                        (3) RULEMAKING AUTHORITY.—
                                                                     10                                  (A) IN GENERAL.—The Commission shall
                                                                     11                         have authority under section 553 of title 5,
                                                                     12                         United States Code, to promulgate any regula-
                                                                     13                         tions necessary to implement this Act.
                                                                     14                                  (B) CONSULTATION.—In promulgating any
                                                                     15                         regulations under this Act, the Commission
                                                                     16                         shall consult with the Secretary.
                                                                     17                         (4) COMMON CARRIERS AND NONPROFIT ORGA-
                                                                     18               NIZATIONS.—Notwithstanding section 4, 5(a)(2), or

                                                                     19               6 of the Federal Trade Commission Act (15 U.S.C.
                                                                     20               44; 45(a)(2); 46) or any jurisdictional limitation of
                                                                     21               the Commission, the Commission shall also enforce
                                                                     22               this Act, in the same manner provided in paragraphs
                                                                     23               (1) and (2) of this paragraph, with respect to—
                                                                     24                                  (A) common carriers subject to the Acts to



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                                                                       1                        carriers subject to part A of subtitle VII of title
                                                                       2                        49, and persons, partnerships, or corporations
                                                                       3                        insofar as they are subject to the Packers and
                                                                       4                        Stockyards Act, 1921 (7 U.S.C. 181 et seq.),
                                                                       5                        except as provided in section 406(b) of such Act
                                                                       6                        (7 U.S.C. 227(b)); and
                                                                       7                                 (B) organizations not organized to carry
                                                                       8                        on business for their own profit or that of their
                                                                       9                        members.
                                                                     10               (b) ENFORCEMENT BY STATES.—
                                                                     11                         (1) IN GENERAL.—In any case in which the at-
                                                                     12               torney general of a State has reason to believe that
                                                                     13               an interest of the residents of the State has been or
                                                                     14               is threatened or adversely affected by the engage-
                                                                     15               ment of any person subject to this Act in a practice
                                                                     16               that violates such subsection, the attorney general of
                                                                     17               the State may, as parens patriae, bring a civil action
                                                                     18               on behalf of the residents of the State in an appro-
                                                                     19               priate district court of the United States to obtain
                                                                     20               appropriate relief.
                                                                     21                         (2) RIGHTS OF THE FEDERAL TRADE COMMIS-
                                                                     22               SION.—

                                                                     23                                  (A) NOTICE TO FEDERAL TRADE COMMIS-
                                                                     24                         SION.—




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                                                                       1                                        (i) IN GENERAL.—Except as provided
                                                                       2                                 in clause (iii), the attorney general of a
                                                                       3                                 State shall notify the Commission in writ-
                                                                       4                                 ing that the attorney general intends to
                                                                       5                                 bring a civil action under paragraph (1)
                                                                       6                                 before initiating the civil action against a
                                                                       7                                 person subject to this Act.
                                                                       8                                        (ii) CONTENTS.—The notification re-
                                                                       9                                 quired by clause (i) with respect to a civil
                                                                     10                                  action shall include a copy of the complaint
                                                                     11                                  to be filed to initiate the civil action.
                                                                     12                                         (iii) EXCEPTION.—If it is not feasible
                                                                     13                                  for the attorney general of a State to pro-
                                                                     14                                  vide the notification required by clause (i)
                                                                     15                                  before initiating a civil action under para-
                                                                     16                                  graph (1), the attorney general shall notify
                                                                     17                                  the Commission immediately upon insti-
                                                                     18                                  tuting the civil action.
                                                                     19                                  (B) INTERVENTION                          BY      THE        FEDERAL

                                                                     20                         TRADE COMMISSION.—The Commission may—

                                                                     21                                         (i) intervene in any civil action
                                                                     22                                  brought by the attorney general of a State
                                                                     23                                  under paragraph (1); and
                                                                     24                                         (ii) upon intervening—



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                                                                       1                                                 (I) be heard on all matters aris-
                                                                       2                                        ing in the civil action; and
                                                                       3                                                 (II) file petitions for appeal of a
                                                                       4                                        decision in the civil action.
                                                                       5                                 (C) INVESTIGATORY POWERS.—Nothing in
                                                                       6                        this subsection may be construed to prevent the
                                                                       7                        attorney general of a State from exercising the
                                                                       8                        powers conferred on the attorney general by the
                                                                       9                        laws of the State to conduct investigations, to
                                                                     10                         administer oaths or affirmations, or to compel
                                                                     11                         the attendance of witnesses or the production of
                                                                     12                         documentary or other evidence.
                                                                     13                         (3) ACTION BY THE FEDERAL TRADE COMMIS-
                                                                     14               SION.—If            the Commission institutes a civil action
                                                                     15               with respect to a violation of this Act, the attorney
                                                                     16               general of a State may not, during the pendency of
                                                                     17               such action, bring a civil action under paragraph (1)
                                                                     18               of this subsection against any defendant named in
                                                                     19               the complaint of the Commission for the violation
                                                                     20               with respect to which the Commission instituted
                                                                     21               such action.
                                                                     22                         (4) VENUE; SERVICE OF PROCESS.—
                                                                     23                                  (A) VENUE.—Any action brought under
                                                                     24                         paragraph (1) may be brought in—



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                                                                       1                                        (i) the district court of the United
                                                                       2                                 States that meets applicable requirements
                                                                       3                                 relating to venue under section 1391 of
                                                                       4                                 title 28, United States Code; or
                                                                       5                                        (ii) another court of competent juris-
                                                                       6                                 diction.
                                                                       7                                 (B) SERVICE OF PROCESS.—In an action
                                                                       8                        brought under paragraph (1), process may be
                                                                       9                        served in any district in which the defendant—
                                                                     10                                         (i) is an inhabitant; or
                                                                     11                                         (ii) may be found.
                                                                     12                                  (C) ACTIONS                  BY       OTHER           STATE   OFFI-

                                                                     13                         CIALS.—

                                                                     14                                         (i) IN GENERAL.—In addition to civil
                                                                     15                                  actions brought by attorneys general under
                                                                     16                                  paragraph (1), any other officer of a State
                                                                     17                                  who is authorized by the State to do so
                                                                     18                                  may bring a civil action under paragraph
                                                                     19                                  (1), subject to the same requirements and
                                                                     20                                  limitations that apply under this sub-
                                                                     21                                  section to civil actions brought by attor-
                                                                     22                                  neys general.
                                                                     23                                         (ii) SAVINGS PROVISION.—Nothing in
                                                                     24                                  this subsection may be construed to pro-



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                                                                     25                                  hibit an authorized official of a State from


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                                                                       1                                 initiating or continuing any proceeding in
                                                                       2                                 a court of the State for a violation of any
                                                                       3                                 civil or criminal law of the State.
                                                                       4              (c) PRIVATE RIGHT OF ACTION.—
                                                                       5                        (1) ENFORCEMENT BY INDIVIDUALS.—
                                                                       6                                 (A) IN GENERAL.—Any individual alleging
                                                                       7                        a violation of this Act may bring a civil action
                                                                       8                        in any court of competent jurisdiction, State or
                                                                       9                        Federal.
                                                                     10                                  (B) RELIEF.—In a civil action brought
                                                                     11                         under paragraph (1) in which the plaintiff pre-
                                                                     12                         vails, the court may award—
                                                                     13                                         (i) an amount not less than $100 and
                                                                     14                                  not greater than $1,000 per violation
                                                                     15                                  against any person who negligently violates
                                                                     16                                  a provision of this Act;
                                                                     17                                         (ii) an amount not less than $500 and
                                                                     18                                  not greater than $5,000 per violation
                                                                     19                                  against any person who recklessly, will-
                                                                     20                                  fully, or intentionally violates a provision of
                                                                     21                                  this Act;
                                                                     22                                         (iii) reasonable attorney’s fees and
                                                                     23                                  litigation costs; and




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                                                                       1                                        (iv) any other relief, including equi-
                                                                       2                                 table or declaratory relief, that the court
                                                                       3                                 determines appropriate.
                                                                       4                                 (C) INJURY IN FACT.—A violation of this
                                                                       5                        Act with respect to the emergency health data
                                                                       6                        of an individual constitutes a concrete and par-
                                                                       7                        ticularized injury in fact to that individual.
                                                                       8                        (2) INVALIDITY OF PRE-DISPUTE ARBITRATION
                                                                       9              AGREEMENTS                     AND        PRE-DISPUTE                    JOINT   ACTION

                                                                     10               WAIVERS.—

                                                                     11                                  (A) IN          GENERAL.—Notwithstanding                         any
                                                                     12                         other provision of law, no pre-dispute arbitra-
                                                                     13                         tion agreement or pre-dispute joint action waiv-
                                                                     14                         er shall be valid or enforceable with respect to
                                                                     15                         a dispute arising under this Act.
                                                                     16                                  (B) APPLICABILITY.—Any determination
                                                                     17                         as to whether or how this subsection applies to
                                                                     18                         any dispute shall be made by a court, rather
                                                                     19                         than an arbitrator, without regard to whether
                                                                     20                         such agreement purports to delegate such deter-
                                                                     21                         mination to an arbitrator.
                                                                     22                                  (C) DEFINITIONS.—In this subsection:
                                                                     23                                         (i) The term ‘‘pre-dispute arbitration
                                                                     24                                  agreement’’ means any agreement to arbi-



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                                                                       1                                 trate a dispute that has not arisen at the
                                                                       2                                 time of making the agreement.
                                                                       3                                        (ii) The term ‘‘pre-dispute joint-action
                                                                       4                                 waiver’’ means an agreement, whether or
                                                                       5                                 not part of a pre-dispute arbitration agree-
                                                                       6                                 ment, that would prohibit, or waive the
                                                                       7                                 right of, one of the parties to the agree-
                                                                       8                                 ment to participate in a joint, class, or col-
                                                                       9                                 lective action in a judicial, arbitral, admin-
                                                                     10                                  istration, or other forum, concerning a dis-
                                                                     11                                  pute that has not yet arisen at the time of
                                                                     12                                  making the agreement.
                                                                     13                                         (iii) The term ‘‘dispute’’ means any
                                                                     14                                  claim related to an alleged violation of this
                                                                     15                                  Act and between an individual and a cov-
                                                                     16                                  ered organization.
                                                                     17      SEC. 7. NONPREEMPTION.

                                                                     18               Nothing in this Act shall preempt or supersede, or
                                                                     19 be interpreted to preempt or supersede, any Federal or
                                                                     20 State law or regulation, or limit the authority of the Com-
                                                                     21 mission or the Secretary under any other provision of law.
                                                                     22      SEC. 8. EFFECTIVE DATE.

                                                                     23               (a) IN GENERAL.—This Act shall apply beginning on
                                                                     24 the date that is 30 days after the date of enactment of



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                                                                     25 this Act.


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                                                                       1              (b) AUTHORITY TO PROMULGATE REGULATIONS AND
                                                                       2 TAKE CERTAIN OTHER ACTIONS.—Nothing in subsection
                                                                       3 (a) affects—
                                                                       4                        (1) the authority of any person to take an ac-
                                                                       5              tion expressly required by a provision of this Act be-
                                                                       6              fore the effective date described in such subsection;
                                                                       7              or
                                                                       8                        (2) the authority of the Commission to promul-
                                                                       9              gate regulations to implement this Act or begin a
                                                                     10               rulemaking to promulgate such regulations.
                                                                                                                                Æ




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