Secure Data and Privacy for Contact Tracing Act of 2020

II 116TH CONGRESS 2D SESSION S. 5027 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 SENATE OF THE UNITED STATES DECEMBER 16, 2020 Mr. SCHATZ (for himself and Ms. BALDWIN) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions 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 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 2 •S 5027 IS 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.—Grant funding may be used for 17 the development, maintenance, or staffing of digital con- 18 tact tracing programs, associated outreach and marketing, 19 or other activities identified by a State, Tribal, or terri- 20 torial public health agency that advance the effectiveness 21 and reach of digital contact-tracing technologies. 22 (c) FUNDING DISQUALIFICATION.—If a State, Trib- 23 al, or territorial public health agency develops or procures 24 any digital contact-tracing technology with respect to 25 COVID–19 that does not meet each of the requirements 26 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 3 •S 5027 IS listed in subsection (d), such State, Tribal, or territorial 1 public health agency shall be ineligible to receive or con- 2 tinue to receive— 3 (1) any funds through a grant under this sec- 4 tion; and 5 (2) any other Federal funds, including under 6 the CARES Act (Public Law 116–136), for any dig- 7 ital contact-tracing technology with respect to 8 COVID–19. 9 (d) DIGITAL CONTACT-TRACING REQUIREMENTS.— 10 A State, Tribal, or territorial public health agency may 11 use a grant under this section for digital contact-tracing 12 technology, as described in subsections (a) and (b), only 13 if the technology meets each of the following requirements: 14 (1) The technology shall be voluntary for the 15 user and provide to the user complete and clear in- 16 formation on the intended use and processing of 17 data collected by the technology. To be voluntary for 18 the user, the technology shall meet requirements in- 19 cluding each of the following: 20 (A) Use of the technology and of contact- 21 tracing data collected using the technology shall 22 be predicated on the user’s affirmative consent. 23 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 4 •S 5027 IS (B) Use of the technology shall not be a 1 condition for the reception of government bene- 2 fits. 3 (C) Use of the technology shall not be 4 made a condition of employment or employment 5 status. 6 (2) The technology shall limit the collection of 7 data by the technology to only the data that is nec- 8 essary to meet contact tracing objectives, includ- 9 ing— 10 (A) the status of any person as an infected 11 or potentially infected person; and 12 (B) the proximity of a person to someone 13 who is symptomatic or has tested positive. 14 (3) The technology— 15 (A) shall delete or de-identify any contact- 16 tracing data that is individually identifiable in- 17 formation not later than the date that is 30 18 days after the end of the COVID–19 emergency 19 declaration; and 20 (B) shall include notifications to prompt 21 users to disable or completely remove any dig- 22 ital contact-tracing technology where practical. 23 (4) The technology shall have robust contact 24 detection specifications, including for distance and 25 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 5 •S 5027 IS time, that allow for detection consistent with guid- 1 ance of the Centers for Disease Control and Preven- 2 tion on COVID–19. 3 (5) The technology shall ensure that the storing 4 of proximity and any contact-tracing data is 5 encrypted to the maximum extent possible. 6 (e) PLAN FOR INTEROPERABILITY.—As a condition 7 on receipt of a grant under this section, a State, Tribal, 8 or territorial public health agency shall— 9 (1) develop and make publicly available a plan 10 for how the digital contact-tracing technology of the 11 agency with respect to COVID–19 augments— 12 (A) traditional contact tracing efforts, if 13 applicable; and 14 (B) statewide efforts to prevent, prepare 15 for, and respond to COVID–19; and 16 (2) include in such plan a description of the 17 agency’s efforts to ensure that the digital contact- 18 tracing technologies of the agency with respect to 19 COVID–19 are interoperable with the digital con- 20 tact-tracing technology and public health agency 21 databases of other jurisdictions with respect to 22 COVID–19; and 23 (3) ensure that data collected by the digital 24 contact-tracing technology of the agency— 25 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 6 •S 5027 IS (A) is accessed and processed only by pub- 1 lic health authorities (or their designees); and 2 (B) is not shared with any person, or 3 accessed or used by any person, for any purpose 4 other than diagnosis, containment, treatment, 5 or reduction of, or research into, COVID–19. 6 (f) INDEPENDENT SECURITY ASSESSMENTS.— 7 (1) IN GENERAL.—As a condition on receipt of 8 a grant under this section, a State, Tribal, or terri- 9 torial public health agency shall— 10 (A) establish procedures for completing or 11 obtaining independent security assessments of 12 digital contact tracing infrastructure to ensure 13 that physical and network security is resilient 14 and secure; and 15 (B) develop a process to address the miti- 16 gation or remediation of the security 17 vulnerabilities discovered during such inde- 18 pendent security assessments. 19 (2) SOURCE CODE.—A State, Tribal, or terri- 20 torial public health agency should consider making 21 public the source code of the digital contact-tracing 22 technology used by the agency. 23 (g) APPLICATION.—To seek a grant under this sec- 24 tion, an eligible State, Tribal, or territorial public health 25 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 7 •S 5027 IS agency shall submit an application in such form, in such 1 manner, and containing such information and assurances 2 as the Director may require. 3 (h) SECURING DIGITAL CONTACT-TRACING DATA.— 4 (1) IN GENERAL.—The provisions of the 5 HIPAA privacy and security law (as defined in sec- 6 tion 3009(a)(2) of the Public Health Service Act (42 7 U.S.C. 300jj–19(a)(2))) shall apply to a State, Trib- 8 al, or territorial public health agency receiving a 9 grant under subsection (a) with respect to individ- 10 ually identifiable health information (as defined in 11 section 1171(a)(6) of the Social Security Act (42 12 U.S.C. 1320d(a)(6))) received by, maintained on, or 13 transmitted through a contact tracing program de- 14 scribed in such subsection (a) in the same manner 15 as such provisions apply with respect to such infor- 16 mation and a covered entity (as defined in section 17 13400(3) of the HITECH Act (42 U.S.C. 18 17921(3))). 19 (2) BUSINESS ASSOCIATES.— 20 (A) IN GENERAL.—Any entity with a con- 21 tract in effect with an agency described in para- 22 graph (1) for the development, maintenance, or 23 operation of a program described in such para- 24 graph shall be deemed to be a business asso- 25 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 8 •S 5027 IS ciate of such agency for purposes of subtitle D 1 of the HITECH Act (42 U.S.C. 17921 et seq.). 2 (B) REVISION OF SAMPLE AGREEMENT.— 3 Not later than 180 days after the date of the 4 enactment of this Act, the Secretary shall revise 5 the sample business associate agreement provi- 6 sions published on January 25, 2013, to take 7 account of the provisions of this subsection. 8 (C) EFFECTIVE DATE.—The provisions of 9 subparagraph (A) shall apply beginning on the 10 day after the Secretary revises the provisions 11 described in subparagraph (B). 12 (i) LIMITATION ON USE OF DATA.—Data generated 13 in connection with the operation of digital contact-tracing 14 technology funded pursuant to this section may not be 15 used for any punitive purpose, including law enforcement, 16 immigration enforcement, or criminal prosecution. Such 17 data and any information derived from it, whether in 18 whole or in part, may not be received as evidence in any 19 trial, hearing, or other proceeding in or before any court, 20 grand jury, department, officer, agency, regulatory body, 21 legislative committee, or other authority of the United 22 States, a State, or a political subdivision thereof. 23 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 9 •S 5027 IS (j) REPORT TO CONGRESS.—Not later than 24 1 months after the date of enactment of this Act, the Comp- 2 troller General of the United States shall— 3 (1) evaluate the outcome of the grants awarded 4 under this section, including an assessment of the 5 impact of the implementation of digital contact trac- 6 ing programs funded through such grants on the 7 spread of COVID–19; and 8 (2) submit to the Congress a report on the re- 9 sults of such evaluation. 10 (k) DEFINITIONS.—In this section: 11 (1) AFFIRMATIVE EXPRESS CONSENT.—The 12 term ‘‘affirmative express consent’’ means an affirm- 13 ative act by an individual that clearly and conspicu- 14 ously communicates the individual’s authorization 15 for an act or practice, in response to a specific re- 16 quest that— 17 (A) is provided to the individual in a clear 18 and conspicuous disclosure that is separate 19 from other options or acceptance of general 20 terms; 21 (B) includes a description of each act or 22 practice for which the individual’s consent is 23 sought and— 24 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 10 •S 5027 IS (i) is written clearly and unmistakably 1 stated; and 2 (ii) includes a prominent heading that 3 would enable a reasonable individual to 4 identify and understand the act or prac- 5 tice; and 6 (C) cannot be inferred from inaction. 7 (2) CONTACT-TRACING DATA.—The term ‘‘con- 8 tact-tracing data’’ means information linked or rea- 9 sonably linkable to a user or device, that— 10 (A) concerns the COVID–19 pandemic; 11 and 12 (B) is gathered, processed, or transferred 13 by digital contact-tracing technology. 14 (3) COVID–19 EMERGENCY DECLARATION.— 15 The term ‘‘COVID–19 emergency declaration’’ has 16 the meaning given to such term in section 17 1135(g)(1)(B) of the Social Security Act (42 U.S.C. 18 1320b–5). 19 (4) DE-IDENTIFY.—The term ‘‘de-identify’’ 20 means to ensure that information cannot reasonably 21 identify, relate to, describe, be capable of being asso- 22 ciated with, or be linked, directly or indirectly, to a 23 particular individual. 24 (5) DESIGNEE.—The term ‘‘designee’’— 25 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 11 •S 5027 IS (A) subject to subparagraph (B), means 1 any person or entity, other than a public health 2 agency, that collects, processes, or transfers 3 contact-tracing data in the course of performing 4 a service or function on behalf of, for the ben- 5 efit of, under instruction of, and under contrac- 6 tual agreement with a public health authority; 7 and 8 (B) excludes any Federal, State, Tribal, 9 territorial, or local law (including immigration 10 law) enforcement personnel or entity. 11 (6) DIGITAL CONTACT-TRACING TECH- 12 NOLOGY.— 13 (A) IN GENERAL.—The term ‘‘digital con- 14 tact-tracing technology’’ means a website, on- 15 line application, mobile application, mobile oper- 16 ating system feature, or smart device applica- 17 tion that is designed, in part or in full, for the 18 purpose of— 19 (i) determining that a contact incident 20 has occurred relating to the COVID–19 21 pandemic; and 22 (ii) taking consequent steps such as 23 reporting the incident to a public health 24 authority or user, or providing guidance or 25 VerDate Sep 11 2014 19:58 Jan 01, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S5027.IS S5027 12 •S 5027 IS instructions to the user of the mobile de- 1 vice or the user’s household. 2 (B) LIMITATIONS.—Such term does not in- 3 clude any technology to assist individuals to 4 evaluate whether they are experiencing COVID– 5 19 symptoms to the extent the technology is not 6 used as described in subparagraph (A). 7 (7) DIRECTOR.—The term ‘‘Director’’ means 8 the Director of the Centers for Disease Control and 9 Prevention. 10 (8) MOBILE APPLICATION.—The term ‘‘mobile 11 application’’ means a software program that runs on 12 the operating system of a mobile device. 13 (9) MOBILE DEVICE.—The term ‘‘mobile de- 14 vice’’ means a smartphone, tablet computer, or simi- 15 lar portable computing device that transmits data 16 over a wireless connection. 17 (10) SOURCE CODE.—The term ‘‘source code’’ 18 is the programming instruction for a computer pro- 19 gram in its original form and saved in a file. 20 (11) TRADITIONAL CONTACT TRACING.—The 21 term ‘‘traditional contact tracing’’ means contact 22 tracing by traditional means prior to contemporary 23 digital contact tracing. 24 VerD [Text truncated for display. Full text available on Congress.gov.]