[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