Federal “COVID-19 Consumer Data Protection Act” Proposed

Farella Braun + Martel LLP

Farella Braun + Martel LLPA group of Republican senators has proposed a new privacy law to govern the collection and use of certain personal information thought to be both important and at risk during the current coronavirus crisis.

While numerous companies and governments have developed and deployed apps and programs to track individuals and trace contacts between individuals in furtherance of the laudable goal of helping to better understand and address the pandemic, there have been concerns that such data could be collected without proper authorization and/or used for purposes outside of the scope for which the data is willingly provided.

On April 30, 2020, four Republican senators (Sens. Blackburn of Tennessee, Moran of Kansas, Thune of South Dakota, and Wicker of Mississippi) announced their intention to introduce a privacy bill to address the issue. The legislation would apply only geolocation and personal health information and would regulate how such information is collected and how it may be used during the COVID-19 Public Health Emergency. As such, the legislation would be temporary in nature. Additionally, it would apply to certain companies to the extent such companies are collecting and/or using such geolocation and personal health information. Specifically, (i) entities subject to the jurisdiction of the FTC Act, (ii) common carriers subject to the Communications Act of 1934, and (iii) nonprofits collecting such data would be subject to the requirements of the legislation.

Entities subject to the proposed law would be required to provide disclosure to and get consent from the data subject prior to the collection of her/his data regarding the data to be collected, the intended sharing of such data, and the categories of recipients with whom the data is to be shared, along with an effective opt-out mechanism enabling individuals to revoke consent. Such companies would also have to file a public report once every 30 days disclosing the aggregate number of individuals whose data has been collected and/or transferred, the categories of such data, the purposes of the collection of such categories of data, and the recipients of data shared. The FTC would be expected to provide guidelines on the appropriate use of data.

Cybersecurity is also addressed by the proposed law, requiring subject entities to “establish, implement, and maintain reasonable administrative, technical, and physical data security policies and practices to protect against risks to the confidentiality, security, and integrity” of the data covered by the law.

Enforcement would be provided for through the FTC Act’s provision of enforcement against unfair and/or deceptive practices. Additionally, the proposed law would provide state attorneys general with the power to bring civil actions for enforcement against entities who adversely affect the interests of the relevant residents of their respective states.

Whether the law will gain sufficient support to move forward remains to be seen, and will turn on the perceived propriety and effectiveness of the law to address the privacy concerns at issue, along with, of course, political considerations. If the previous attempts at federal privacy legislation are a guide, broad support is unlikely, though time will tell if the specific circumstances of the pandemic are a differentiating factor.

More information can be found in the press release announcing the planned introduction of the bill.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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