Secure Data and Privacy for Contact Tracing Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 778 To authorize the Director of the Centers for Disease Control and Prevention to award grants to eligible State, Tribal, and territorial public health agencies to develop and administer a program for digital contact tracing for COVID–19, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 3, 2021 Ms. SPEIER (for herself, Ms. DEGETTE, Mrs. DINGELL, Mr. CARSON, Mr. JONES, Mr. LYNCH, Mr. RASKIN, and Mr. TAKANO) introduced the fol- lowing bill; which was referred to the Committee on Energy and Com- merce A BILL To authorize the Director of the Centers for Disease Control and Prevention to award grants to eligible State, Tribal, and territorial public health agencies to develop and ad- minister a program for digital contact tracing for COVID–19, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Secure Data and Pri- 4 vacy for Contact Tracing Act of 2021’’. 5 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 778 IH SEC. 2. GRANT PROGRAM FOR DIGITAL CONTACT TRACING 1 FOR COVID–19. 2 (a) IN GENERAL.—The Director of the Centers for 3 Disease Control and Prevention shall award grants to eli- 4 gible State, Tribal, and territorial public health agencies 5 to— 6 (1) establish a contact tracing program that im- 7 plements traditional contact tracing protocols with 8 the assistance of digital contact-tracing technology 9 to track and prevent the spread of COVID–19; 10 (2) incorporate digital contact-tracing tech- 11 nology into a contact tracing program that imple- 12 ments traditional contact tracing protocols to track 13 and prevent the spread of COVID–19; and 14 (3) expand or maintain an existing program as 15 described in paragraph (1). 16 (b) USE OF FUNDS.— 17 (1) IN GENERAL.—Funds received through a 18 grant under this section may be used for— 19 (A) the development, maintenance, or 20 staffing of digital contact tracing programs; 21 (B) associated outreach and marketing; or 22 (C) other activities identified by the State, 23 Tribal, or territorial public health agency re- 24 ceiving the grant as advancing the effectiveness 25 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 778 IH and reach of digital contact-tracing tech- 1 nologies. 2 (2) EDUCATION AND OUTREACH.—Of the funds 3 received by a State, Tribal, or territorial public 4 health agency through a grant under this section, 5 the agency may use not more than 10 percent of 6 such funds to integrate education and outreach re- 7 lated to vaccines for COVID–19 into digital contact- 8 tracing programs. 9 (c) FUNDING DISQUALIFICATION.—If a State, Trib- 10 al, or territorial public health agency develops or procures 11 any digital contact-tracing technology with respect to 12 COVID–19 that does not meet each of the requirements 13 listed in subsection (d), such State, Tribal, or territorial 14 public health agency shall be ineligible to receive or con- 15 tinue to receive— 16 (1) any funds through a grant under this sec- 17 tion; and 18 (2) any other Federal funds, including under 19 the CARES Act (Public Law 116–136), for any dig- 20 ital contact-tracing technology with respect to 21 COVID–19. 22 (d) DIGITAL CONTACT-TRACING REQUIREMENTS.— 23 A State, Tribal, or territorial public health agency may 24 use a grant under this section for digital contact-tracing 25 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 778 IH technology, as described in subsections (a) and (b), only 1 if the technology meets each of the following requirements: 2 (1) The technology shall be voluntary for the 3 user and provide to the user complete and clear in- 4 formation on the intended use and processing of 5 data collected by the technology. To be voluntary for 6 the user, the technology shall meet requirements in- 7 cluding each of the following: 8 (A) Use of the technology and of contact- 9 tracing data collected using the technology shall 10 be predicated on the user’s affirmative express 11 consent. 12 (B) Use of the technology shall not be a 13 condition for the reception of government bene- 14 fits. 15 (C) Use of the technology shall not be 16 made a condition of employment or employment 17 status. 18 (2) The technology shall limit the collection of 19 data by the technology to only the data that is nec- 20 essary to meet contact tracing objectives, includ- 21 ing— 22 (A) the status of any person as an infected 23 or potentially infected person; and 24 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 778 IH (B) the proximity of a person to someone 1 who is symptomatic or has tested positive. 2 (3) The technology— 3 (A) shall delete or de-identify any contact- 4 tracing data that is individually identifiable in- 5 formation not later than the date that is 30 6 days after the end of the COVID–19 emergency 7 declaration; and 8 (B) shall include notifications to prompt 9 users to disable or completely remove any dig- 10 ital contact-tracing technology where practical. 11 (4) The technology shall have robust contact 12 detection specifications, including for distance and 13 time, that allow for detection consistent with guid- 14 ance of the Centers for Disease Control and Preven- 15 tion on COVID–19. 16 (5) The technology shall ensure that the storing 17 of proximity and any contact-tracing data is 18 encrypted to the maximum extent possible. 19 (e) PLAN FOR INTEROPERABILITY.—As a condition 20 on receipt of a grant under this section, a State, Tribal, 21 or territorial public health agency shall— 22 (1) develop and make publicly available a plan 23 for how the digital contact-tracing technology of the 24 agency with respect to COVID–19 augments— 25 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 778 IH (A) traditional contact tracing efforts, if 1 applicable; and 2 (B) statewide efforts to prevent, prepare 3 for, and respond to COVID–19; and 4 (2) include in such plan a description of the 5 agency’s efforts to ensure that the digital contact- 6 tracing technologies of the agency with respect to 7 COVID–19 are interoperable with the digital con- 8 tact-tracing technology and public health agency 9 databases of other jurisdictions with respect to 10 COVID–19; and 11 (3) ensure that data collected by the digital 12 contact-tracing technology of the agency— 13 (A) is accessed and processed only by pub- 14 lic health authorities (or their designees); and 15 (B) is not shared with any person, or 16 accessed or used by any person, for any purpose 17 other than diagnosis, containment, treatment, 18 or reduction of, or research into, COVID–19. 19 (f) INDEPENDENT SECURITY ASSESSMENTS.— 20 (1) IN GENERAL.—As a condition on receipt of 21 a grant under this section, a State, Tribal, or terri- 22 torial public health agency shall— 23 (A) establish procedures for completing or 24 obtaining independent security assessments of 25 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 778 IH digital contact tracing infrastructure to ensure 1 that physical and network security is resilient 2 and secure; and 3 (B) develop a process to address the miti- 4 gation or remediation of the security 5 vulnerabilities discovered during such inde- 6 pendent security assessments. 7 (2) SOURCE CODE.—A State, Tribal, or terri- 8 torial public health agency should consider making 9 public the source code of the digital contact-tracing 10 technology used by the agency. 11 (g) APPLICATION.—To seek a grant under this sec- 12 tion, an eligible State, Tribal, or territorial public health 13 agency shall submit an application in such form, in such 14 manner, and containing such information and assurances 15 as the Director may require. 16 (h) SECURING DIGITAL CONTACT-TRACING DATA.— 17 (1) IN GENERAL.—The provisions of the 18 HIPAA privacy and security law (as defined in sec- 19 tion 3009(a)(2) of the Public Health Service Act (42 20 U.S.C. 300jj–19(a)(2))) shall apply to a State, Trib- 21 al, or territorial public health agency receiving a 22 grant under subsection (a) with respect to individ- 23 ually identifiable health information (as defined in 24 section 1171(a)(6) of the Social Security Act (42 25 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 778 IH U.S.C. 1320d(a)(6))) received by, maintained on, or 1 transmitted through a contact tracing program de- 2 scribed in such subsection (a) in the same manner 3 as such provisions apply with respect to such infor- 4 mation and a covered entity (as defined in section 5 13400(3) of the HITECH Act (42 U.S.C. 6 17921(3))). 7 (2) BUSINESS ASSOCIATES.— 8 (A) IN GENERAL.—Any entity with a con- 9 tract in effect with an agency described in para- 10 graph (1) for the development, maintenance, or 11 operation of a program described in such para- 12 graph shall be deemed to be a business asso- 13 ciate of such agency for purposes of subtitle D 14 of the HITECH Act (42 U.S.C. 17921 et seq.). 15 (B) REVISION OF SAMPLE AGREEMENT.— 16 Not later than 180 days after the date of the 17 enactment of this Act, the Secretary of Health 18 and Human Services shall revise the sample 19 business associate agreement provisions pub- 20 lished on January 25, 2013, to take account of 21 the provisions of this subsection. 22 (C) EFFECTIVE DATE.—The provisions of 23 subparagraph (A) shall apply beginning on the 24 day after the Secretary of Health and Human 25 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 778 IH Services revises the provisions described in sub- 1 paragraph (B). 2 (i) LIMITATION ON USE OF DATA.—Data generated 3 in connection with the operation of digital contact-tracing 4 technology funded pursuant to this section may not be 5 used for any punitive purpose, including law enforcement, 6 immigration enforcement, or criminal prosecution. Such 7 data and any information derived from it, whether in 8 whole or in part, may not be received as evidence in any 9 trial, hearing, or other proceeding in or before any court, 10 grand jury, department, officer, agency, regulatory body, 11 legislative committee, or other authority of the United 12 States, a State, or a political subdivision thereof. 13 (j) REPORT TO CONGRESS.—Not later than 24 14 months after the date of enactment of this Act, the Comp- 15 troller General of the United States shall— 16 (1) evaluate the outcome of the grants awarded 17 under this section, including an assessment of the 18 impact of the implementation of digital contact trac- 19 ing programs funded through such grants on the 20 spread of COVID–19; and 21 (2) submit to the Congress a report on the re- 22 sults of such evaluation. 23 (k) DEFINITIONS.—In this section: 24 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 778 IH (1) AFFIRMATIVE EXPRESS CONSENT.—The 1 term ‘‘affirmative express consent’’ means an affirm- 2 ative act by an individual that clearly and conspicu- 3 ously communicates the individual’s authorization 4 for an act or practice, in response to a specific re- 5 quest that— 6 (A) is provided to the individual in a clear 7 and conspicuous disclosure that is separate 8 from other options or acceptance of general 9 terms; 10 (B) includes a description of each act or 11 practice for which the individual’s consent is 12 sought and— 13 (i) is written clearly and unmistakably 14 stated; and 15 (ii) includes a prominent heading that 16 would enable a reasonable individual to 17 identify and understand the act or prac- 18 tice; and 19 (C) cannot be inferred from inaction. 20 (2) CONTACT-TRACING DATA.—The term ‘‘con- 21 tact-tracing data’’ means information linked or rea- 22 sonably linkable to a user or device, that— 23 (A) concerns the COVID–19 pandemic; 24 and 25 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 778 IH (B) is gathered, processed, or transferred 1 by digital contact-tracing technology. 2 (3) COVID–19 EMERGENCY DECLARATION.— 3 The term ‘‘COVID–19 emergency declaration’’ has 4 the meaning given to such term in section 5 1135(g)(1)(B) of the Social Security Act (42 U.S.C. 6 1320b–5). 7 (4) DE-IDENTIFY.—The term ‘‘de-identify’’ 8 means to ensure that information cannot reasonably 9 identify, relate to, describe, be capable of being asso- 10 ciated with, or be linked, directly or indirectly, to a 11 particular individual. 12 (5) DESIGNEE.—The term ‘‘designee’’— 13 (A) subject to subparagraph (B), means 14 any person or entity, other than a public health 15 agency, that collects, processes, or transfers 16 contact-tracing data in the course of performing 17 a service or function on behalf of, for the ben- 18 efit of, under instruction of, and under contrac- 19 tual agreement with a public health authority; 20 and 21 (B) excludes any Federal, State, Tribal, 22 territorial, or local law (including immigration 23 law) enforcement personnel or entity. 24 VerDate Sep 11 2014 20:40 Feb 23, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H778.IH H778 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 778 IH (6) DIGITAL CONTACT-TRACING TECH- 1 NOLOGY.— 2 (A) IN GENERAL.—The term ‘‘digital con- 3 tact-tracing technology’’ means a website, on- 4 line application, mobile application, mobile oper- 5 ating system feature, or smart device applica- 6 tion that is designed, in part or in full, for the 7 purpose of— 8 (i) determining that a contact incident 9 has occurred relating to the COVID–19 10 pandemic; and 11 (ii) taking consequent steps such as 12 reporting the incident to a public health 13 authority or user, or providing guidance or 14 instructions to the user of the mobile de- 15 vice or the user’s household. 16 (B) LIMITATIONS.—Such term does not in- 17 clude any technology to [Text truncated for display. 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