Secure Data and Privacy for Contact Tracing Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 7472 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 JULY 1, 2020 Ms. SPEIER (for herself, Ms. DEGETTE, Mrs. DINGELL, Mr. CARSON of Indi- ana, Ms. BARRAGA´N, Mr. LYNCH, Mr. RASKIN, Mr. SAN NICOLAS, Mr. TAKANO, and Mr. HASTINGS) introduced the following bill; which was re- ferred to the Committee on Energy and Commerce 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 2020’’. 5 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 7472 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; or 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. 14 (b) FUNDING DISQUALIFICATION.—If a State, Trib- 15 al, or territorial public health agency develops or procures 16 any digital contact tracing technology with respect to 17 COVID–19 that does not meet each of the requirements 18 listed in subsection (c), such State, Tribal, or territorial 19 public health agency shall be ineligible to receive or con- 20 tinue to receive— 21 (1) any funds through a grant under this sec- 22 tion; and 23 (2) any other Federal funds, including under 24 the CARES Act (Public Law 116–136), for any dig- 25 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 7472 IH ital contact-tracing technology with respect to 1 COVID–19. 2 (c) DIGITAL CONTACT-TRACING REQUIREMENTS.—A 3 State, Tribal, or territorial public health agency may use 4 a grant under this section for digital contact tracing tech- 5 nology, as described in subsection (a), only if the tech- 6 nology meets each of the following requirements: 7 (1) The technology shall be voluntary for the 8 user and provide to the user complete and clear in- 9 formation on the intended use and processing of 10 data collected by the technology. To be voluntary for 11 the user, the technology shall meet requirements in- 12 cluding each of the following: 13 (A) Use of the technology and of contact- 14 tracing data collected using the technology shall 15 be predicated on the user’s affirmative consent. 16 (B) Use of the technology shall not be a 17 condition for the reception of government bene- 18 fits. 19 (C) Use of the technology shall not be 20 made a condition of employment or employment 21 status. 22 (2) The technology shall limit the collection of 23 data by the technology to only the data that is nec- 24 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 7472 IH essary to meet contact-tracing objectives, includ- 1 ing— 2 (A) the status of any person as an infected 3 or potentially infected person; and 4 (B) the proximity of a person to someone 5 who is symptomatic or has tested positive. 6 (3) The technology— 7 (A) shall delete or de-identify any contact- 8 tracing data that is individually identifiable in- 9 formation not later than the date that is 30 10 days after the end of the COVID–19 emergency 11 declaration; and 12 (B) shall include notifications to prompt 13 users to disable or completely remove any dig- 14 ital contact-tracing technology where practical. 15 (4) The technology shall have robust contact 16 detection specifications, including for distance and 17 time, that allow for detection consistent with guid- 18 ance of the Centers for Disease Control and Preven- 19 tion on COVID–19. 20 (5) The technology shall ensure that the storing 21 of proximity and any contact-tracing data is 22 encrypted to the maximum extent possible. 23 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 7472 IH (d) PLAN FOR INTEROPERABILITY.—As a condition 1 on receipt of a grant under this section, a State, Tribal, 2 or territorial public health agency shall— 3 (1) develop and make publicly available a plan 4 for how the digital contact-tracing technology of the 5 agency with respect to COVID–19 augments— 6 (A) traditional contact tracing efforts, if 7 applicable; and 8 (B) statewide efforts to prevent, prepare 9 for, and respond to COVID–19; and 10 (2) include in such plan a description of the 11 agency’s efforts to ensure that the digital contact- 12 tracing technologies of the agency with respect to 13 COVID–19 are interoperable with the digital con- 14 tact-tracing technology and public health agency 15 databases of other jurisdictions with respect to 16 COVID–19; and 17 (3) ensure that data collected by the digital 18 contact-tracing technology of the agency— 19 (A) is accessed and processed only by pub- 20 lic health authorities (or their designees); and 21 (B) is not shared with any person, or 22 accessed or used by any person, for any purpose 23 other than diagnosis, containment, treatment, 24 or reduction of, or research into, COVID–19. 25 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 7472 IH (e) INDEPENDENT SECURITY ASSESSMENTS.— 1 (1) IN GENERAL.—As a condition on receipt of 2 a grant under this section, a State, Tribal, or terri- 3 torial public health agency shall— 4 (A) establish procedures for completing or 5 obtaining independent security assessments of 6 digital contact-tracing infrastructure to ensure 7 that physical and network security is resilient 8 and secure; and 9 (B) develop a process to address the miti- 10 gation or remediation of the security 11 vulnerabilities discovered during such inde- 12 pendent security assessments. 13 (2) SOURCE CODE.—A State, Tribal, or terri- 14 torial public health agency should consider making 15 public the source code of the digital contact-tracing 16 technology used by the agency. 17 (f) APPLICATION.—To seek a grant under this sec- 18 tion, an eligible State, Tribal, or territorial public health 19 agency shall submit an application in such form, in such 20 manner, and containing such information and assurances 21 as the Director may require. 22 (g) SECURING DIGITAL CONTACT-TRACING DATA.— 23 (1) IN GENERAL.—The provisions of the 24 HIPAA privacy and security law (as defined in sec- 25 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 7472 IH tion 3009(a)(2) of the Public Health Service Act (42 1 U.S.C. 300jj–19(a)(2))) shall apply to a State, Trib- 2 al, or territorial public health agency receiving a 3 grant under subsection (a) with respect to individ- 4 ually identifiable health information (as defined in 5 section 1171(a)(6) of the Social Security Act (42 6 U.S.C. 1320d(a)(6))) received by, maintained on, or 7 transmitted through a contact-tracing program de- 8 scribed in such subsection (a) in the same manner 9 as such provisions apply with respect to such infor- 10 mation and a covered entity (as defined in section 11 13400(3) of the HITECH Act (42 U.S.C. 12 17921(3))). 13 (2) BUSINESS ASSOCIATES.— 14 (A) IN GENERAL.—Any entity with a con- 15 tract in effect with an agency described in para- 16 graph (1) for the development, maintenance, or 17 operation of a program described in such para- 18 graph shall be deemed to be a business asso- 19 ciate of such agency for purposes of subtitle D 20 of the HITECH Act (42 U.S.C. 17921 et seq.). 21 (B) REVISION OF SAMPLE AGREEMENT.— 22 Not later than 180 days after the date of the 23 enactment of this Act, the Secretary shall revise 24 the sample business associate agreement provi- 25 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 7472 IH sions published on January 25, 2013, to take 1 account of the provisions of this subsection. 2 (C) EFFECTIVE DATE.—The provisions of 3 subparagraph (A) shall apply beginning on the 4 day after the Secretary revises the provisions 5 described in subparagraph (B). 6 (h) LIMITATION ON USE OF DATA.—Data generated 7 in connection with the operation of digital contact tracing 8 technology funded pursuant to this section may not be 9 used for any punitive purpose, including law enforcement, 10 immigration enforcement, or criminal prosecution. Such 11 data and any information derived from it, whether in 12 whole or in part, may not be received as evidence in any 13 trial, hearing, or other proceeding in or before any court, 14 grand jury, department, officer, agency, regulatory body, 15 legislative committee, or other authority of the United 16 States, a State, or a political subdivision thereof. 17 (i) REPORT TO CONGRESS.—Not later than 90 days 18 after the date of enactment of this Act, the Comptroller 19 General of the United States shall— 20 (1) evaluate the outcome of the grants awarded 21 under this section, including an assessment of the 22 impact of the implementation of digital contact-trac- 23 ing programs funded through such grants on the 24 spread of COVID–19; and 25 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 7472 IH (2) submit to the Congress a report on the re- 1 sults of such evaluation. 2 (j) DEFINITIONS.—In this section: 3 (1) AFFIRMATIVE EXPRESS CONSENT.—The 4 term ‘‘affirmative express consent’’ means an affirm- 5 ative act by an individual that clearly and conspicu- 6 ously communicates the individual’s authorization 7 for an act or practice, in response to a specific re- 8 quest that— 9 (A) is provided to the individual in a clear 10 and conspicuous disclosure that is separate 11 from other options or acceptance of general 12 terms; 13 (B) includes a description of each act or 14 practice for which the individual’s consent is 15 sought and— 16 (i) is written clearly and unmistakably 17 stated; and 18 (ii) includes a prominent heading that 19 would enable a reasonable individual to 20 identify and understand the act or prac- 21 tice; and 22 (C) cannot be inferred from inaction. 23 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 7472 IH (2) CONTACT-TRACING DATA.—The term ‘‘con- 1 tact-tracing data’’ means information linked or rea- 2 sonably linkable to a user or device, that— 3 (A) concerns the COVID–19 pandemic; 4 and 5 (B) is gathered, processed, or transferred 6 by digital contact tracing technology. 7 (3) COVID–19 EMERGENCY DECLARATION.— 8 The term ‘‘COVID–19 emergency declaration’’ has 9 the meaning given to such term in section 10 1135(g)(1)(B) of the Social Security Act (42 U.S.C. 11 1320b–5). 12 (4) DE-IDENTIFY.—The term ‘‘de-identify’’ 13 means to ensure that information cannot reasonably 14 identify, relate to, describe, be capable of being asso- 15 ciated with, or be linked, directly or indirectly, to a 16 particular individual. 17 (5) DESIGNEE.—The term ‘‘designee’’— 18 (A) subject to subparagraph (B), means 19 any person or entity, other than a public health 20 agency, that collects, processes, or transfers 21 contact-tracing data in the course of performing 22 a service or function on behalf of, for the ben- 23 efit of, under instruction of, and under contrac- 24 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 7472 IH tual agreement with a public health authority; 1 and 2 (B) excludes any Federal, State, Tribal, 3 territorial, or local law (including immigration 4 law) enforcement personnel or entity. 5 (6) DIGITAL CONTACT-TRACING TECH- 6 NOLOGY.— 7 (A) IN GENERAL.—The term ‘‘digital con- 8 tact-tracing technology’’ means a website, on- 9 line application, mobile application, mobile oper- 10 ating system feature, or smart device applica- 11 tion that is designed, in part or in full, for the 12 purpose of— 13 (i) determining that a contact incident 14 has occurred relating to the COVID–19 15 pandemic; and 16 (ii) taking consequent steps such as 17 reporting the incident to a public health 18 authority or user, or providing guidance or 19 instructions to the user of the mobile de- 20 vice or the user’s household. 21 (B) LIMITATIONS.—Such term does not in- 22 clude any technology to assist individuals to 23 evaluate whether they are experiencing COVID– 24 VerDate Sep 11 2014 04:52 Jul 27, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H7472.IH H7472 pbinns on DSKJLVW7X2PROD with BILLS 12 •HR 7472 IH 19 symptoms to the extent the technology is not 1 used as described in subparagraph (A). 2 (7) DIRECTOR.—The term ‘‘Director’’ means 3 the Director of the Centers for Disease Control and 4 Prevention. 5 (8) MOBILE APPLICATION.—The term ‘‘mobile 6 application’’ means a software program that runs on 7 the operating system of a mobile device. 8 (9) MOBILE DEVICE.—The term ‘‘mobile de- 9 vice’’ means a smartphone, tablet computer, or simi- 10 lar portable computing device that transmits data 11 over a wireless connection. 12 (10) SOURCE CODE.—The term ‘‘source code’’ 13 is the programming instruction for a computer pro- 14 gram in its original form and saved in a file. 15 (11) TRADITIONAL CONTACT TRACING.—The 16 term ‘‘traditional contact tracing’’ means contact 17 tracing by traditional means prior to contemporary [Text truncated for display. 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