APPS Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 6677 To provide for greater transparency in and user control over the treatment of data collected by mobile applications and to enhance the security of such data. IN THE HOUSE OF REPRESENTATIVES MAY 1, 2020 Mr. JOHNSON of Georgia (for himself and Mr. CHABOT) introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To provide for greater transparency in and user control over the treatment of data collected by mobile applica- tions and to enhance the security of such data. 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 ‘‘Application Privacy, 4 Protection, and Security Act of 2020’’ or the ‘‘APPS Act 5 of 2020’’. 6 SEC. 2. TRANSPARENCY, USER CONTROL, AND SECURITY. 7 (a) CONSENT TO TERMS AND CONDITIONS.— 8 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 6677 IH (1) IN GENERAL.—Before a mobile application 1 collects personal data about a user of the applica- 2 tion, the developer of the application shall— 3 (A) provide the user with notice of the 4 terms and conditions governing the collection, 5 use, storage, and sharing of the personal data; 6 and 7 (B) obtain the consent of the user to such 8 terms and conditions. 9 (2) REQUIRED CONTENT.—The notice required 10 by paragraph (1)(A) shall include the following: 11 (A) The categories of personal data that 12 will be collected. 13 (B) The categories of purposes for which 14 the personal data will be used. 15 (C) The categories of third parties with 16 which the personal data will be shared. 17 (D) A data retention policy that governs 18 the length for which the personal data will be 19 stored and the terms and conditions applicable 20 to storage, including a description of the rights 21 of the user under subsection (b) and the proc- 22 ess by which the user may exercise such rights. 23 (3) ADDITIONAL SPECIFICATIONS AND FLEXI- 24 BILITY.—The Commission shall by regulation specify 25 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 6677 IH the format, manner, and timing of the notice re- 1 quired by paragraph (1)(A). In promulgating the 2 regulations, the Commission shall consider how to 3 ensure the most effective and efficient communica- 4 tion to the user regarding the treatment of personal 5 data. 6 (4) DIRECT ACCESS TO DATA BY THIRD PAR- 7 TIES.—For purposes of this Act, if the developer of 8 a mobile application allows a third party to access 9 personal data collected by the application, such per- 10 sonal data shall be considered to be shared with the 11 third party, whether or not such personal data are 12 first transmitted to the developer. 13 (b) WITHDRAWAL OF CONSENT.—The developer of a 14 mobile application shall— 15 (1) provide a user of the application with a 16 means of— 17 (A) notifying the developer that the user 18 intends to stop using the application; and 19 (B) requesting the developer— 20 (i) to refrain from any further collec- 21 tion of personal data through the applica- 22 tion; and 23 (ii) at the option of the user, either— 24 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 6677 IH (I) to the extent practicable, to 1 delete any personal data collected by 2 the application that is stored by the 3 developer; or 4 (II) to refrain from any further 5 use or sharing of such data; and 6 (2) within a reasonable and appropriate time 7 after receiving a request under paragraph (1)(B), 8 comply with such request. 9 (c) SECURITY OF PERSONAL DATA AND DE-IDENTI- 10 FIED DATA.—The developer of a mobile application shall 11 take reasonable and appropriate measures to prevent un- 12 authorized access to personal data and de-identified data 13 collected by the application. 14 (d) EXCEPTION.—Nothing in this Act prohibits the 15 developer of a mobile application from disclosing or pre- 16 serving personal data or de-identified data as required 17 by— 18 (1) other Federal law (including a court order); 19 or 20 (2) except as provided in section 6, the law of 21 a State or a political subdivision of a State (includ- 22 ing a court order). 23 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 6677 IH SEC. 3. APPLICATION AND ENFORCEMENT. 1 (a) GENERAL APPLICATION.—The requirements of 2 this Act and the regulations promulgated under this Act 3 apply, according to their terms, to those persons, partner- 4 ships, and corporations over which the Commission has 5 authority pursuant to section 5(a)(2) of the Federal Trade 6 Commission Act (15 U.S.C. 45(a)(2)). 7 (b) ENFORCEMENT BY FEDERAL TRADE COMMIS- 8 SION.— 9 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 10 TICES.—A violation of this Act or a regulation pro- 11 mulgated under this Act shall be treated as a viola- 12 tion of a regulation under section 18(a)(1)(B) of the 13 Federal Trade Commission Act (15 U.S.C. 14 57a(a)(1)(B)) regarding unfair or deceptive acts or 15 practices. 16 (2) POWERS OF COMMISSION.—The Commis- 17 sion shall enforce this Act and the regulations pro- 18 mulgated under this Act in the same manner, by the 19 same means, and with the same jurisdiction, powers, 20 and duties as though all applicable terms and provi- 21 sions of the Federal Trade Commission Act (15 22 U.S.C. 41 et seq.) were incorporated into and made 23 a part of this Act. Any person who violates this Act 24 or a regulation promulgated under this Act shall be 25 subject to the penalties and entitled to the privileges 26 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 6677 IH and immunities provided in the Federal Trade Com- 1 mission Act. 2 (c) ACTIONS BY STATES.— 3 (1) IN GENERAL.—In any case in which the at- 4 torney general of a State, or an official or agency of 5 a State, has reason to believe that an interest of the 6 residents of such State has been or is threatened or 7 adversely affected by an act or practice in violation 8 of this Act or a regulation promulgated under this 9 Act, the State, as parens patriae, may bring a civil 10 action on behalf of the residents of the State in an 11 appropriate district court of the United States to— 12 (A) enjoin such act or practice; 13 (B) enforce compliance with this Act or 14 such regulation; 15 (C) obtain damages, restitution, or other 16 compensation on behalf of residents of the 17 State; or 18 (D) obtain such other legal and equitable 19 relief as the court may consider to be appro- 20 priate. 21 (2) NOTICE.—Before filing an action under this 22 subsection, the attorney general, official, or agency 23 of the State involved shall provide to the Commis- 24 sion a written notice of such action and a copy of 25 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 6677 IH the complaint for such action. If the attorney gen- 1 eral, official, or agency determines that it is not fea- 2 sible to provide the notice described in this para- 3 graph before the filing of the action, the attorney 4 general, official, or agency shall provide written no- 5 tice of the action and a copy of the complaint to the 6 Commission immediately upon the filing of the ac- 7 tion. 8 (3) AUTHORITY OF COMMISSION.— 9 (A) IN GENERAL.—On receiving notice 10 under paragraph (2) of an action under this 11 subsection, the Commission shall have the 12 right— 13 (i) to intervene in the action; 14 (ii) upon so intervening, to be heard 15 on all matters arising therein; and 16 (iii) to file petitions for appeal. 17 (B) LIMITATION ON STATE ACTION WHILE 18 FEDERAL ACTION IS PENDING.—If the Commis- 19 sion or the Attorney General of the United 20 States has instituted a civil action for violation 21 of this Act or a regulation promulgated under 22 this Act (referred to in this subparagraph as 23 the ‘‘Federal action’’), no State attorney gen- 24 eral, official, or agency may bring an action 25 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 6677 IH under this subsection during the pendency of 1 the Federal action against any defendant 2 named in the complaint in the Federal action 3 for any violation of this Act or such regulation 4 alleged in such complaint. 5 (4) RULE OF CONSTRUCTION.—For purposes of 6 bringing a civil action under this subsection, nothing 7 in this Act shall be construed to prevent an attorney 8 general, official, or agency of a State from exercising 9 the powers conferred on the attorney general, offi- 10 cial, or agency by the laws of such State to conduct 11 investigations, administer oaths and affirmations, or 12 compel the attendance of witnesses or the production 13 of documentary and other evidence. 14 SEC. 4. REGULATIONS. 15 Not later than 1 year after the date of the enactment 16 of this Act, the Commission shall promulgate regulations 17 in accordance with section 553 of title 5, United States 18 Code, to implement and enforce this Act. 19 SEC. 5. SAFE HARBOR. 20 (a) IN GENERAL.—The developer of a mobile applica- 21 tion may satisfy the requirements of this Act and the regu- 22 lations promulgated under this Act by adopting and fol- 23 lowing a code of conduct for consumer data privacy (inso- 24 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 6677 IH far as such code relates to data collected by a mobile appli- 1 cation) that— 2 (1) was developed in a multistakeholder process 3 convened by the National Telecommunications and 4 Information Administration, as described in the doc- 5 ument issued by the President on February 23, 6 2012, entitled ‘‘Consumer Data Privacy in a 7 Networked World: A Framework for Protecting Pri- 8 vacy and Promoting Innovation in the Global Digital 9 Economy’’; and 10 (2) the Commission has approved as meeting 11 the requirements of the regulations promulgated 12 under section 4. 13 (b) REGULATIONS.—The Commission shall promul- 14 gate regulations in accordance with section 553 of title 15 5, United States Code, to govern the consideration and 16 approval of codes of conduct under subsection (a)(2). 17 SEC. 6. RELATIONSHIP TO STATE LAW. 18 This Act and the regulations promulgated under this 19 Act supercede a provision of law of a State or a political 20 subdivision of a State only to the extent that such provi- 21 sion— 22 (1) conflicts with this Act or such regulations, 23 as determined without regard to section 2(d)(2); 24 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 6677 IH (2) specifically relates to the treatment of per- 1 sonal data or de-identified data; and 2 (3) provides a level of transparency, user con- 3 trol, or security in the treatment of personal data or 4 de-identified data that is less than the level provided 5 by this Act and such regulations. 6 SEC. 7. PRESERVATION OF FTC AUTHORITY. 7 Nothing in this Act may be construed in any way to 8 limit or affect the authority of the Commission under any 9 other provision of law. 10 SEC. 8. DEFINITIONS. 11 In this Act: 12 (1) COMMISSION.—The term ‘‘Commission’’ 13 means the Federal Trade Commission. 14 (2) DE-IDENTIFIED DATA.—The term ‘‘de-iden- 15 tified data’’ means data that cannot reasonably be 16 used to identify or infer information about, or other- 17 wise be linked to, a particular individual or mobile 18 device, as determined with a reasonable level of jus- 19 tified confidence based on the available methods and 20 technologies, the nature of the data at issue, and the 21 purposes for which the data will be used. 22 (3) DEVELOPER.—The term ‘‘developer’’ shall 23 have the meaning given such term by the Commis- 24 sion by regulation. 25 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 6677 IH (4) MOBILE APPLICATION.—The term ‘‘mobile 1 application’’ means a software program that— 2 (A) runs on the operating system of a mo- 3 bile device; and 4 (B) collects data from a user. 5 (5) MOBILE DEVICE.—The term ‘‘mobile de- 6 vice’’ means a smartphone, tablet computer, or simi- 7 lar portable computing device that transmits data 8 over a wireless connection. 9 (6) PERSONAL DATA.—The term ‘‘personal 10 data’’ shall have the meaning given such term by the 11 Commission by regulation, except that such term 12 shall not include de-identified data. 13 (7) STATE.—The term ‘‘State’’ means each of 14 the several States, the District of Columbia, each 15 commonwealth, territory, or possession of the United 16 States, and each federally recognized Indian Tribe. 17 (8) THIRD PARTY.—The term ‘‘third party’’ 18 means, with respect to the developer of an applica- 19 tion, an entity that holds itself out to the public as 20 separate from the developer such that a user of the 21 application acting reasonably under the cir- 22 cumstances would not expect the entity to be related 23 to the developer or to have access to personal data 24 the user provides to the developer. Such term in- 25 VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 6677 IH cludes an affiliate of the developer unless the affili- 1 ation is reasonably clear to users of the application. 2 SEC. 9. EFFECTIVE DATE. 3 This Act shall apply with respect to any collection, 4 use, storage, or sharing of personal data or de-identified 5 data that occurs after the date that is 30 days after the 6 promulgation of final regulations under section 4. 7 Æ VerDate Sep 11 2014 18:28 May 08, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6301 E:\BILLS\H6677.IH H6677 pamtmann on DSKBC07HB2PROD with BILLS