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Two privacy bills have been introduced relating to COVID-19 contact tracing apps that are now being considered by Congress. The competing bills, introduced by Republican and Democratic lawmakers, share some common ground and and introduce measures to protect the privacy of Americans and ensure personal data is not misused.
The first bill, the COVID-19 Consumer Data Protection Act, was introduced by Republican senators Roger Wicker (R-Miss), John Thune (R-S.D), Jerry Moran, (R-Kan), and Marsha Blackburn (R-Tenn) last month “to protect the privacy of consumers’ personal health information, proximity data, device data, and geolocation data during the coronavirus public health crisis.”
The bill would make it illegal for personal health information, proximity data, device data, and geolocation data to be collected unless notice was given to consumers about the purpose of collecting data and consumers are required to give their consent to the collection, processing, and transfer of their data. The bill prohibits the collection, use, or transfer of data for any secondary purposes.
The allowed purposed for the collection, processing, and transfer of data is limited to tracking the spread, signs, and symptoms of COVID-19; the collection, processing and transfer of an individual’s data to measure compliance with social distancing guidelines and other requirements related to COVID-19 imposed on individuals; and the collection, processing, or transfer of data for COVID-19 contact tracing purposes.
The bill also requires companies to allow individuals to opt out, provide transparency reports describing data collection activities, establish data minimization and data security requirements, define what constitutes aggregate and de-identified data to ensure companies adopt certain technical and legal safeguards to prevent re-identification; and to require companies to delete collected data when the COVID-19 public health emergency is over.
According to Senator Thune, “This bill strikes the right balance between innovation – allowing technology companies to continue their work toward developing platforms that could trace the virus and help flatten the curve and stop the spread – and maintaining privacy protections for U.S. citizens.”
The Democratic bill, the Public Health Emergency Privacy Act, was introduced by Representatives Anna G. Eshoo (D-Calif), Jan Schakowsky (D-Ill), Suzan DelBene(D-Wash), and Senators Richard Blumenthal (D-Conn) and Mark Warner (D-Va). The aim of the bill is to ensure there is transparency over the health and location data collected by contact-tracing apps and to give Americans control over the collection and use of their data. The bill also ensures that businesses can be held to account by consumers if their data is used for any activities other than the fight against COVID-19.
The bill requires health data to only be used for public health purposes; prohibits the use of health data for discriminatory, unrelated, or intrusive purposes, including commercial advertising or to gate access to employment, finance, insurance, housing, or education opportunities; prevents misuse of data by government agencies that have no role in public health; ensures meaningful data security and data integrity protections are implemented; prohibits conditioning the right to vote based on a medical condition or use of contact tracing apps; and requires reports to be regularly produced on the impact of digital collection tools on civil rights.
The bill requires the public to be given control over participation in contact tracing through opt-in consent, there must be meaningful transparency, and robust private and public enforcement. The bill also calls for the destruction of data within 60 days of the end of the public health emergency. The bill would not apply to HIPAA-covered entities or their business associates, which would continue to be required to comply with HIPAA Rules.
“As we continue to respond to the devastating suffering caused by COVID-19, our country’s first and foremost public health response must be testing, testing, testing, AND manual contact tracing. Digital contact tracing can and should complement these efforts, but it is just that – complimentary. However, if we do pursue digital contact tracing, consumers need clearly-defined privacy rights and strong enforcement to safeguard these rights,” said Rep. Jan Schakowsky.
Given the similarity of both bills and their common goals, it may be possible for some consensus to be reached on the content of any new legislation and for both sides to work together to get a bill passed to protect the privacy of Americans and ensure that data collected by COVID-19 contact tracing apps is not misused.