Digital Accountability and Transparency to Advance Privacy Act or the DATA Privacy Act
This bill establishes information security requirements for businesses that collect, process, store, or disclose information relating to at least 50,000 people in a 12-month period. The bill applies to information that may be linked to a specific individual or a device associated with a specific individual. It does not cover data related to employment or publicly available government records.
Specifically, covered businesses must
The bill further requires the Federal Trade Commission to promulgate rules requiring covered businesses to
Finally, the bill requires the National Science Foundation, and other agencies, to support research of technology that increases the privacy and confidentiality of collected data.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5807 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 5807
To establish national data privacy standards in the United States, and
for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 1, 2021
Mr. Vela introduced the following bill; which was referred to the
Committee on Energy and Commerce, and in addition to the Committee on
Science, Space, and Technology, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To establish national data privacy standards in the United States, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Digital Accountability and
Transparency to Advance Privacy Act'' or the ``DATA Privacy Act''.
SEC. 2. DEFINITIONS.
(a) In General.--In this Act:
(1) Collect.--The term ``collect'' means taking any
operation or set of operations to obtain covered data,
including by automated means, including purchasing, leasing,
assembling, recording, gathering, acquiring, or procuring.
(2) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(3) Covered data.--The term ``covered data''--
(A) means any information that is--
(i) collected, processed, stored, or
disclosed by a covered entity;
(ii) collected over the internet or other
digital network; and
(iii)(I) linked to an individual or device
associated with an individual; or
(II) practicably linkable to an individual
or device associated with an individual,
including by combination with separate
information, by the covered entity or any
potential recipient of the data; and
(B) does not include data that is--
(i) collected, processed, stored, or
disclosed solely for the purpose of employment
of an individual; or
(ii) lawfully made available to the public
from Federal, State, or local government
records.
(4) Covered entity.--The term ``covered entity''--
(A) means any entity that collects, processes,
stores, or discloses covered data; and
(B) does not include any entity that collects,
processes, stores, or discloses covered data relating
to fewer than 50,000 individuals and devices during any
12-month period.
(5) Disclose.--The term ``disclose'' means taking any
action with respect to covered data, including by automated
means, to sell, share, provide, or otherwise transfer covered
data to another entity, person, or the general public.
(6) Privacy enhancing technology.--The term ``privacy
enhancing technology''--
(A) means any software solution, technical
processes, or other technological means of enhancing
the privacy and confidentiality of an individual's
covered data in data or sets of data; and
(B) includes anonymization and pseudonymization
techniques, filtering tools, anti-tracking technology,
differential privacy tools, synthetic data, and secure
multi-party computation.
(7) Privacy risk.--The term ``privacy risk'' means
potential harm to an individual resulting from the collection,
processing, storage, or disclosure of covered data, including--
(A) direct or indirect financial loss;
(B) stigmatization or reputational harm;
(C) anxiety, embarrassment, fear, and other severe
emotional trauma;
(D) loss of economic opportunity; or
(E) physical harm.
(8) Process.--The term ``process'' means any operation or
set of operations that is performed on covered data or on sets
of covered data, including by automated means, including
organizing, combining, adapting, altering, using, or
transforming.
(9) Protected characteristic.--The term ``protected
characteristic'' means an individual's race, sex, gender,
sexual orientation, nationality, religious belief, age, or
disability status.
(10) Pseudonymous data.--The term ``pseudonymous data''
means covered data that may only be linked to the identity of
an individual or the identity of a device associated with an
individual if combined with separate information.
(11) Reasonable interest.--The term ``reasonable interest''
means--
(A) a compelling business, operational,
administrative, legal, or educational justification for
the collection, processing, storage, or disclosure of
covered data exists; and
(B) the interest does not subject the individual
linked to the covered data to an unreasonable privacy
risk.
(12) Sensitive data.--The term ``sensitive data'' means any
covered data relating to--
(A) the health, biologic, physiologic, biometric,
sexual life, or genetic information of an individual;
or
(B) the precise geolocation information of a device
associated with an individual.
(13) Store.--The term ``store'' means any operation or set
of operations to continue possession of covered data, including
by automated means.
(14) Third party service provider.--The term ``third party
service provider'' means any covered entity that collects,
processes, stores, or discloses covered data at the direction
of, and for the sole benefit of, another covered entity under a
contract.
(b) Modified Definition by Rulemaking.--If the Commission
determines that a term defined in paragraph (10) or (12) is not
sufficient to protect an individual's data privacy, the Commission may
promulgated regulations under section 553 of title 5, United States
Code, to modify the definition as the Commission considers appropriate.
SEC. 3. REQUIRED PRIVACY NOTICE.
(a) Privacy Notice.--Each covered entity shall post in an
accessible location a notice that is concise, in context, in easily
understandable language, accurate, clear, timely, updated, uses
visualizations where appropriate, conspicuous, and free of charge
regarding the covered entity's privacy practices.
(b) Contents of Notice.--The notice required by subsection (a)
shall include--
(1) a description of the covered data that the entity
collects, processes, stores, and discloses, including the
sources that provided the covered data if the covered entity
did not collect the covered data from the individual;
(2) the purposes for and means by which the entity
collects, processes, and stores the covered data;
(3) the persons and entities to whom, and purposes for
which, the covered entity discloses the covered data; and
(4) a conspicuous, clear, and understandable means for
individuals to access the methods necessary to exercise their
rights under sections 4 and 5.
SEC. 4. REQUIRED DATA PRACTICES.
(a) Regulations.--Not later than 1 year after the date of the
enactment of this Act, the Commission shall promulgate regulations
under section 553 of title 5, United States Code, that require covered
entities to implement, practice, and maintain certain data procedures
and processes that meet the following requirements:
(1) Minimum data processing requirements.--Except as
provided in subsection (b), require covered entities to meet
all of the following requirements regarding the means by and
purposes for which covered data is collected, processed,
stored, and disclosed:
(A) Reasonable.--
(i) In general.--Except as provided in
paragraph (3), covered data collection,
processing, storage, and disclosure practices
must meet a reasonable interest of the covered
entity, including--
(I) business, educational, and
administrative operations that are
relevant and appropriate to the context
of the relationship between the covered
entity and the individual linked to the
covered data;
(II) relevant and appropriate
product and service development and
enhancement;
(III) preventing and detecting
abuse, fraud, and other criminal
activity;
(IV) reasonable communications and
marketing practices that follow best
practices, rules, and ethical
standards;
(V) engaging in scientific,
medical, or statistical research that
follows commonly accepted ethical
standards; or
(VI) any other purpose for which
the Commission considers to be
reasonable.
(ii) Considerations.--In promulgating
regulations in accordance with this
subparagraph, the Commission shall consider--
(I) the role of impact assessments
in determining the privacy risk for
high-risk processing;
(II) the sensitivity of the covered
data; and
(III) the impact of such
regulations on small business.
(B) Equitable.--
(i) In general.--Covered data collection,
processing, storage, and disclosure practices
may not be for purposes that result in
discrimination against a protected
characteristic, including--
(I) discriminatory targeted
advertising practices;
(II) price, service, or employment
opportunity discrimination; or
(III) any other practice the
Commission considers likely to result
in discrimination against a protected
characteristic.
(ii) Considerations.--In promulgating
regulations in accordance with this
subparagraph, the Commission shall consider--
(I) established civil rights laws,
common law, and existing relevant
consent decrees;
(II) the existing economic models
and technology available in the digital
advertising system;
(III) the role of algorithms and
impact assessments; and
(IV) the impact of such regulations
on small businesses.
(C) Forthright.--
(i) In general.--Covered data collection,
processing, storage, and disclosure practices
may not be accomplished with means or for
purposes that are deceptive, including--
(I) the use of inconspicuous
recording or tracking devices and
methods;
(II) the disclosure of covered data
that a reasonable individual believes
to be the content of a private
communication with another party or
parties;
(III) notices, interfaces, or other
representations likely to mislead
consumers; or
(IV) any other practice that the
Commission considers likely to mislead
individuals regarding the purposes for
and means by which covered data is
collected, processed, stored, or
disclosed.
(ii) Considerations.--In promulgating
regulations in accordance with this
subparagraph, the Commission shall consider--
(I) existing relevant consent
decrees;
(II) the reasonable expectations of
consumers;
(III) research on deceptive
practices;
(IV) the role of deceptive user
interfaces; and
(V) the impact of such regulations
on small businesses.
(2) Requirements for opt-out consent.--Except as provided
in subsection (b), require covered entities to provide
individuals with conspicuous access to a method that is in
easily understandable language, concise, accurate, clear, to
opt out of any collection, processing, storage, or disclosure
of covered data linked to the individual.
(3) Requirements for affirmative consent.--Except as
provided in subsection (b), require covered entities to provide
individuals with a notice that is concise, in easily
understandable language, accurate, clear, timely, and
conspicuous to express affirmative, opt in consent--
(A) before the covered entity collects or discloses
sensitive data linked to the individual; or
(B) before the covered entity collects, processes,
stores, or discloses data for purposes which are
outside the context of the relationship of the covered
entity with the individual linked to the data,
including--
(i) the use of covered data beyond what is
necessary to provide, improve, or market a good
or service that the individual requests;
(ii) the processing or disclosure of
covered data differs in material ways from the
purposes described in the privacy policy that
was in effect when the data was collected; or
(iii) any other purpose that Commission
considers outside of context.
(4) Data minimization requirements.--Except as provided in
subsection (b), require covered entities to--
(A) take reasonable measures to limit the
collection, processing, storage, and disclosure of
covered data to the amount that is necessary to carry
out the purposes for which the data is collected; and
(B) store covered data only as long as is
reasonably necessary to carry out the purposes for
which the data was collected.
(b) Exemptions.--Subsection (a) shall not apply if the limitations
on the collection, processing, storage, or disclosure of covered data
would--
(1) inhibit detection or prevention of a security risk or
incident;
(2) risk the health, safety, or property of the covered
entity or individual; or
(3) prevent compliance with an applicable law (including
regulations) or legal process.
SEC. 5. INDIVIDUAL CONTROL OVER DATA USE.
(a) Regulations.--Not later than 1 year after the date of the
enactment of this Act, the Commission shall promulgate regulations
under section 553 of title 5, United States Code, to require covered
entities to provide conspicuous, understandable, clear, and free of
charge method to--
(1) upon the request of an individual, provide the
individual with access to, or an accurate representation of,
covered data linked to with the individual or the individual's
device stored by the covered entity;
(2) upon the request of an individual, provide the
individual with a means to dispute and resolve the accuracy or
completeness of the covered data linked to the individual or
the individual's device stored by the entity;
(3) upon the request of an individual, delete any covered
data that the covered entity stores linked to the individual or
the individual's device; and
(4) when technically feasible, upon the request of an
individual, allow the individual to transmit or transfer
covered data linked to the individual or the individual's
device that is maintained by the entity to the individual in a
format that is standardized and interoperable.
(b) Pseudonymous Data.--If the covered data that an individual has
requested processed under subsection (a) is pseudonymous data, a
covered entity may decline the request if processing the request is not
technically feasible.
(c) Timeliness of Requests.--In fulfilling any requests made by the
individual under subsection (a) the covered entity shall act in as
timely a manner as is reasonably possible.
(d) Access to Same Service.--A covered entity shall not
discriminate against an individual because of any action the individual
took under their rights described in subsection (a), including--
(1) denying goods or services to the individual;
(2) charging, or advertising, different prices or rates for
goods or services; or
(3) providing different quality of goods or services.
(e) Consideration.--The Commission shall allow a covered entity, by
contract, to provide relevant obligations to the individual under
subsection (a) on behalf of a third party service provider that
collects, processes, stores, or discloses covered data only on behalf
of the covered entity.
SEC. 6. INFORMATION SECURITY STANDARDS.
(a) Required Data Security Practices.--
(1) Regulations.--Not later than 1 year after the date of
enactment of this Act, the Commission shall promulgate
regulations under section 553 of title 5, United States Code,
to require covered entities to establish and implement policies
and procedures regarding information security practices for the
treatment and protection of covered data taking into
consideration--
(A) the level of identifiability of the covered
data and the associated privacy risk;
(B) the sensitivity of the covered data collected,
processed, and stored and the associated privacy risk;
(C) the currently available and widely accepted
technological, administrative, and physical means to
protect covered data under the control of the covered
entity;
(D) the cost associated with implementing,
maintaining, and regularly reviewing the safeguards;
and
(E) the impact of these requirements on small- and
medium-sized businesses.
(2) Limitations.--In promulgating the regulations required
under this section, the Commission shall consider a covered
entity who is in compliance with existing information security
laws that the Commission determines are sufficiently rigorous
to be in compliance with this section with respect to
particular types of covered data to the extent those types of
covered data are covered by such law, including the following:
(A) Title V of the Gramm-Leach-Bliley Act (15
U.S.C. 6801 et seq.).
(B) The Health Information Technology for Economic
and Clinical Health Act (42 U.S.C. 17931).
(C) The Health Insurance Portability and
Accountability Act of 1996 Security Rule (45 CFR
160.103 and part 164).
(D) Any other existing law requiring a covered
entity to implement and maintain information security
practices and procedures that the Commission determines
to be sufficiently rigorous.
SEC. 7. PRIVACY PROTECTION OFFICERS.
(a) Appointment of a Privacy Protection Officer.--Each covered
entity with annual revenue in excess of $50,000,000 the prior year
shall designate at least 1 appropriately qualified employee as a
privacy protection officer who shall--
(1) educate employees about compliance requirements;
(2) train employees involved in data processing;
(3) conduct regular, comprehensive audits to ensure
compliance and make records of the audits available to
enforcement authorities upon request;
(4) maintain updated, clear, and understandable records of
all data security practices undertaken by the covered entity;
(5) serve as the point of contact between the covered
entity and enforcement authorities; and
(6) advocate for policies and practices within the covered
entity that promote individual privacy.
(b) Protections.--The privacy protection officer shall not be
dismissed or otherwise penalized by the covered entity for performing
any of the tasks assigned to the person under this section.
SEC. 8. RESEARCH INTO PRIVACY ENHANCING TECHNOLOGY.
(a) National Science Foundation Support of Research on Privacy
Enhancing Technology.--The Director of the National Science Foundation,
in consultation with other relevant Federal agencies (as determined by
the Director), shall support merit-reviewed and competitively awarded
research on privacy enhancing technologies, which may include--
(1) fundamental research on technologies for de-
identification, pseudonymization, anonymization, or obfuscation
of covered data in data sets while maintaining fairness,
accuracy, and efficiency;
(2) fundamental research on algorithms and other similar
mathematical tools used to protect individual privacy when
collecting, storing, sharing, or aggregating data;
(3) fundamental research on technologies that promote data
minimization principles in data collection, sharing, and
analytics; and
(4) research awards on privacy enhancing technologies
coordinated with other relevant Federal agencies and programs.
(b) Integration Into the Computer and Network Security Program.--
Subparagraph (D) of section 4(a)(1) of the Cyber Security Research and
Development Act (15 U.S.C. 7403(a)(1)(D)) is amended to read as
follows:
``(D) privacy enhancing technologies and
confidentiality;''.
(c) Coordination With the National Institute of Standards and
Technology and Other Stakeholders.--
(1) In general.--The Director of the Office of Science and
Technology Policy, acting through the Networking and
Information Technology Research and Development Program, shall
coordinate with the Director of the National Science
Foundation, the Director of the National Institute of Standards
and Technology, and the Commission to accelerate the
development and use of privacy enhancing technologies.
(2) Outreach.--The Director of the National Institute of
Standards and Technology shall conduct outreach to--
(A) receive input from private, public, and
academic stakeholders, including the National
Institutes of Health and the Centers for Disease
Control and Prevention, for the purpose of facilitating
public health research, on the development of privacy
enhancing technologies; and
(B) develop ongoing public and private sector
engagement to create and disseminate voluntary,
consensus-based resources to increase the integration
of privacy enhancing technologies in data collection,
sharing, and analytics by the public and private
sectors.
(d) Report on Research and Standards Development.--Not later than 2
years after the date of enactment of this Act, the Director of the
Office of Science and Technology Policy, acting through the Networking
and Information Technology Research and Development Program, shall, in
coordination with the Director of the National Science Foundation and
the Director of the National Institute of Standards and Technology,
submit to the Committee on Commerce, Science, and Transportation of the
Senate, the Subcommittee on Commerce, Justice, Science, and Related
Agencies of the Committee on Appropriations of the Senate, the
Committee on Science, Space, and Technology of the House of
Representatives, and the Subcommittee on Commerce, Justice, Science,
and Related Agencies of the Committee on Appropriations of the House of
Representatives, a report containing--
(1) the progress of research on privacy enhancing
technologies;
(2) the progress of the development of voluntary resources
described under subsection (c)(2)(B); and
(3) any policy recommendations of the Directors that could
facilitate and improve communication and coordination between
the private sector, the National Science Foundation, and
relevant Federal agencies through the implementation of privacy
enhancing technologies.
SEC. 9. ENFORCEMENT.
(a) Enforcement by the Commission.--
(1) In general.--This Act and the regulations prescribed
under this Act, other than the provisions of and amendments
made by section 8, shall be enforced by the Commission under
the Federal Trade Commission Act (15 U.S.C. 41 et seq.).
(2) Unfair or deceptive acts or practices.--A violation of
this Act or a regulation prescribed under this Act shall be
treated as a violation of a rule defining an unfair or
deceptive act or practice prescribed under section 18(a)(1)(B)
of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
(3) Actions by the commission.--Subject to paragraph (4),
the Commission shall prevent any person from violating this Act
or a regulation prescribed under this Act in the same manner,
by the same means, and with the same jurisdiction, powers, and
duties as though all applicable terms and provisions of the
Federal Trade Commission Act (15 U.S.C. 41 et seq.) were
incorporated into and made a part of this Act, and any person
who violates this Act or such regulation shall be subject to
the penalties and entitled to the privileges and immunities
provided in the Federal Trade Commission Act (15 U.S.C. 41 et
seq.).
(4) Common carriers.--Notwithstanding section 4, 5(a)(2),
or 6 of the Federal Trade Commission Act (15 U.S.C. 44,
45(a)(2), and 46) or any jurisdictional limitation of the
Commission, the Commission shall also enforce this Act, in the
same manner provided in paragraphs (1), (2), and (3) with
respect to common carriers subject to the Communications Act of
1934 (47 U.S.C. 151 et seq.) and Acts amendatory thereof and
supplementary thereto.
(b) Enforcement by State Attorneys General.--
(1) In general.--
(A) Civil actions.--In any case in which the
attorney general of a State has reason to believe that
an interest of the residents of that State has been or
is threatened or adversely affected by the engagement
of any person in a practice that violates this Act or a
regulation prescribed under this Act, the State, as
parens patriae, may bring a civil action on behalf of
the residents of the State in a district court of the
United States of appropriate jurisdiction to--
(i) enjoin that practice;
(ii) enforce compliance with this Act or
such regulation;
(iii) obtain damages, restitution, or other
compensation on behalf of residents of the
State;
(iv) impose a civil penalty in an amount
that is not greater than the product of the
number of individuals whose information was
affected by a violation and $40,000; or
(v) obtain such other relief as the court
may consider to be appropriate.
(B) Adjustment for inflation.--Beginning on the
date that the Consumer Price Index is first published
by the Bureau of Labor Statistics that is after 1 year
after the date of enactment of this Act, and each year
thereafter, the amounts specified in subparagraph
(A)(iv) shall be increased by the percentage increase
in the Consumer Price Index published on that date from
the Consumer Price Index published the previous year.
(C) Notice.--
(i) In general.--Before filing an action
under subparagraph (A), the attorney general of
the State involved shall provide to the
Commission--
(I) written notice of that action;
and
(II) a copy of the complaint for
that action.
(ii) Exemption.--
(I) In general.--Clause (i) shall
not apply with respect to the filing of
an action by an attorney general of a
State under this paragraph if the
attorney general determines that it is
not feasible to provide the notice
described in that clause before the
filing of the action.
(II) Notification.--In an action
described in subclause (I), the
attorney general of a State shall
provide notice and a copy of the
complaint to the Commission at the same
time as the attorney general files the
action.
(c) Rights of the Commission.--
(1) Intervention by the commission.--The Commission may
intervene in any civil action brought by the attorney general
of a State under subsection (b) and upon intervening--
(A) be heard on all matters arising in the civil
action; and
(B) file petitions for appeal of a decision in the
civil action.
(2) Powers.--Nothing in this subsection may be construed to
prevent the attorney general of a State from exercising the
powers conferred on the attorney general by the laws of the
State to conduct investigations, to administer oaths or
affirmations, or to compel the attendance of witnesses or the
production of documentary or other evidence.
(3) Action by the commission.--If the Commission institutes
a civil action for violation of this title or a regulation
promulgated under this title, no attorney general of a State
may bring a civil action under subsection (b) against any
defendant named in the complaint of the Commission for
violation of this Act or a regulation promulgated under this
Act that is alleged in the complaint.
(d) Venue and Service of Process.--
(1) Venue.--Any action brought under subsection (b) may be
brought in--
(A) the district court of the United States that
meets applicable requirements relating to venue under
section 1391 of title 28, United States Code; or
(B) another court of competent jurisdiction.
(2) Service of process.--In an action brought under
subsection (b), process may be served in any district in which
the defendant--
(A) is an inhabitant; or
(B) may be found.
(e) Action of Other State Officials.--
(1) In general.--In addition to civil actions brought by
attorneys general under subsection (b), any other officer of a
State who is authorized by the State to do so may bring a civil
action under subsection (b), subject to the same requirements
and limitations that apply under this subsection to civil
actions brought by attorneys general.
(2) Savings provision.--Nothing in this subsection may be
construed to prohibit an authorized official of a State from
initiating or continuing any proceeding in a court of the State
for a violation of any civil or criminal law of the State.
(f) Preservation of Authority.--Nothing in this Act shall be
construed to limit the authority of the Federal Trade Commission under
any other provision of law.
SEC. 10. ADDITIONAL ENFORCEMENT RESOURCES.
(a) In General.--Notwithstanding any other provision of law the
Commission may, without regard to the civil service laws (including
regulations), appoint not more than 300 additional personnel for the
purposes of enforcing privacy and data security laws and regulations.
(b) Authorization of Appropriations.--There is authorized to be
appropriated to the Commission such sums as may be necessary to carry
out this section.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Energy and Commerce, and in addition to the Committee on Science, Space, and Technology, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on Science, Space, and Technology, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Research and Technology.
Referred to the Subcommittee on Consumer Protection and Commerce.
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