[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3337 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  1st Session
                                S. 3337

To establish national data privacy standards in the United States, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 15, 2023

 Ms. Cortez Masto introduced the following bill; which was read twice 
 and referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 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'' means any--
                    (A) 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; or
                    (B) de-identification, anonymization, or 
                pseudonymization technologies or techniques, filtering 
                tools, anti-tracking technology, differential privacy 
                tools, synthetic data generation tools, cryptographic 
                techniques (such as secure multi-party computation and 
                homomorphic encryption), or systems for federated 
                learning.
            (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;
                            (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 Servi