II 

116TH CONGRESS 

2D SESSION S. 3749 

To protect the privacy of health information during a national health 

emergency. 

IN THE SENATE OF THE UNITED STATES 

MAY 14, 2020 

Mr. BLUMENTHAL (for himself and Mr. WARNER) introduced the following 

bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To protect the privacy of health information during a 

national health emergency. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Public Health Emer5 gency Privacy Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) AFFIRMATIVE EXPRESS CONSENT.—The 

9 term ‘‘affirmative express consent’’ means an affirm10 ative act by an individual that— 


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1 (A) clearly and conspicuously commu2 nicates the individual’s authorization of an act 

3 or practice; 

4 (B) is made in the absence of any mecha5 nism in the user interface that has the purpose 

6 or substantial effect of obscuring, subverting, or 

7 impairing decision making or choice to obtain 

8 consent; and 

9 (C) cannot be inferred from inaction. 

10 (2) COLLECT.—The term ‘‘collect’’, with re11 spect to emergency health data, means obtaining in 

12 any manner by a covered organization. 

13 (3) COMMISSION.—The term ‘‘Commission’’ 

14 means the Federal Trade Commission. 

15 (4) COVERED ORGANIZATION.— 

16 (A) IN GENERAL.—The term ‘‘covered or17 ganization’’ means any person (including a gov18 ernment entity)— 

19 (i) that collects, uses, or discloses 

20 emergency health data electronically or 

21 through communication by wire or radio; 

22 or 

23 (ii) that develops or operates a 

24 website, web application, mobile applica25 tion, mobile operating system feature, or 


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1 smart device application for the purpose of 

2 tracking, screening, monitoring, contact 

3 tracing, or mitigation, or otherwise re4 sponding to the COVID–19 public health 

5 emergency. 

6 (B) EXCLUSIONS.—The term ‘‘covered or7 ganization’’ does not include— 

8 (i) a health care provider; 

9 (ii) a person engaged in a de minimis 

10 collection or processing of emergency 

11 health data; 

12 (iii) a service provider; 

13 (iv) a person acting in their individual 

14 or household capacity; or 

15 (v) a public health authority. 

16 (5) DEMOGRAPHIC DATA.—The term ‘‘demo17 graphic data’’ means information relating to the ac18 tual or perceived race, color, ethnicity, national ori19 gin, religion, sex, gender, gender identity, sexual ori20 entation, age, Tribal affiliation, disability, domicile, 

21 employment status, familial status, immigration sta22 tus, or veteran status of an individual or group of 

23 individuals. 


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1 (6) DEVICE.—The term ‘‘device’’ means any 

2 electronic equipment that is primarily designed for 

3 or marketed to consumers. 

4 (7) DISCLOSURE.—The term ‘‘disclosure’’, with 

5 respect to emergency health data, means the releas6 ing, transferring, selling, providing access to, licens7 ing, or divulging in any manner by a covered organi8 zation to a third party. 

9 (8) EMERGENCY HEALTH DATA.—The term 

10 ‘‘emergency health data’’ means data linked or rea11 sonably linkable to an individual or device, including 

12 data inferred or derived about the individual or de13 vice from other collected data provided such data is 

14 still linked or reasonably linkable to the individual or 

15 device, that concerns the public COVID–19 health 

16 emergency. Such data includes— 

17 (A) information that reveals the past, 

18 present, or future physical or behavioral health 

19 or condition of, or provision of healthcare to, an 

20 individual, including— 

21 (i) data derived from the testing or 

22 examination of a body part or bodily sub23 stance, or a request for such testing; 

24 (ii) whether or not an individual has 

25 contracted or been tested for, or an estiVerDate Sep 11 2014 16:00 Jun 03, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3749.IS S3749

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1 mate of the likelihood that a particular in2 dividual may contract, such disease or dis3 order; and 

4 (iii) genetic data, biological samples, 

5 and biometrics; and 

6 (B) other data collected in conjunction 

7 with other emergency health data or for the 

8 purpose of tracking, screening, monitoring, con9 tact tracing, or mitigation, or otherwise re10 sponding to the COVID–19 public health emer11 gency, including— 

12 (i) geolocation data, when such term 

13 means data capable of determining the 

14 past or present precise physical location of 

15 an individual at a specific point in time, 

16 taking account of population densities, in17 cluding cell-site location information, tri18 angulation data derived from nearby wire19 less or radio frequency networks, and glob20 al positioning system data; 

21 (ii) proximity data, when such term 

22 means information that identifies or esti23 mates the past or present physical prox24 imity of one individual or device to an25 other, including information derived from 


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1 Bluetooth, audio signatures, nearby wire2 less networks, and near-field communica3 tions; 

4 (iii) demographic data; 

5 (iv) contact information for identifi6 able individuals or a history of the individ7 ual’s contacts over a period of time, such 

8 as an address book or call log; and 

9 (v) any other data collected from a 

10 personal device. 

11 (9) GOVERNMENT ENTITY.—The term ‘‘govern12 ment entity’’ includes a Federal agency, a State, a 

13 local government, and other organizations, as such 

14 terms are defined in section 3371 of title 5, United 

15 States Code. 

16 (10) HEALTH CARE PROVIDER.—The term 

17 ‘‘health care provider’’ has the meaning given the 

18 term ‘‘eligible health care provider’’ in title VIII of 

19 division B of the CARES Act (Public Law 116– 

20 136). 

21 (11) HIPAA REGULATIONS.—The term 

22 ‘‘HIPAA regulations’’ means parts 160 and 164 of 

23 title 45, Code of Federal Regulations. 

24 (12) PUBLIC HEALTH AUTHORITY.—The term 

25 ‘‘public health authority’’ means an entity that is 


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1 authorized by law to collect or receive information 

2 for the purpose of preventing or controlling disease, 

3 injury, or disability including, but not limited to, the 

4 reporting of disease, injury, vital events such as 

5 birth or death, and the conduct of public health sur6 veillance, public health investigations, and public 

7 health interventions, and a person, such as a des8 ignated agency or associate, acting under a grant of 

9 authority from, or under a contract with, such public 

10 entity, including the employees or agents of such en11 tity or its contractors or persons or entities to whom 

12 it has granted authority. 

13 (13) COVID–19 PUBLIC HEALTH EMER14 GENCY.—The term ‘‘COVID–19 public health emer15 gency’’ means the outbreak and public health re16 sponse pertaining to Coronavirus Disease 2019 

17 (COVID–19), associated with the emergency de18 clared by the Secretary on January 31, 2020, under 

19 section 319 of the Public Health Service Act (42 

20 U.S.C. 247d), and any renewals thereof and any 

21 subsequent declarations by the Secretary related to 

22 the coronavirus. 

23 (14) SECRETARY.—The term ‘‘Secretary’’ 

24 means the Secretary of Health and Human Services. 

25 (15) SERVICE PROVIDER.— 


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1 (A) IN GENERAL.—The term ‘‘service pro2 vider’’ means a person that collects, uses, or 

3 discloses emergency health data for the sole 

4 purpose of, and only to the extent that such en5 tity is, conducting business activities on behalf 

6 of, for the benefit of, under instruction of, and 

7 under contractual agreement with a covered or8 ganization. 

9 (B) LIMITATION OF APPLICATION.—Such 

10 person shall only be considered a service pro11 vider in the course of activities described in 

12 subparagraph (A). 

13 (C) EXCLUSIONS.—The term ‘‘service pro14 vider’’ excludes a person that develops or oper15 ates a website, web application, mobile applica16 tion, or smart device application for the purpose 

17 of tracking, screening, monitoring, contact trac18 ing, or mitigation, or otherwise responding to 

19 the COVID–19 public health emergency. 

20 (16) STATE.—The term ‘‘State’’ means each 

21 State of the United States, the District of Columbia, 

22 each commonwealth, territory, or possession of the 

23 United States, and each federally recognized Indian 

24 Tribe. 

25 (17) THIRD PARTY.— 


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1 (A) IN GENERAL.—The term ‘‘third party’’ 

2 means, with respect to a covered organization— 

3 (i) another person to whom such cov4 ered organization disclosed emergency 

5 health data; and 

6 (ii) a corporate affiliate or a related 

7 party of the covered organization that does 

8 not have a direct relationship with an indi9 vidual with whom the emergency health 

10 data is linked or is reasonably linkable. 

11 (B) EXCLUSION.—The term ‘‘third party’’ 

12 excludes, with respect to a covered organiza13 tion— 

14 (i) a service provider of such covered 

15 organization; or 

16 (ii) a public health authority. 

17 (18) USE.—The term ‘‘use’’, with respect to 

18 emergency health data, means the processing, em19 ployment, application, utilization, examination, or 

20 analysis of such data by a covered organization that 

21 maintains such data. 

22 SEC. 3. PROTECTING THE PRIVACY AND SECURITY OF 

23 EMERGENCY HEALTH DATA. 

24 (a) RIGHT TO PRIVACY.—A covered organization that 

25 collects emergency health data shall— 


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1 (1) only collect, use, or disclose such data that 

2 is necessary, proportionate, and limited for a good 

3 faith public health purpose, including a service or 

4 feature to support such a purpose; 

5 (2) take reasonable measures, where possible, to 

6 ensure the accuracy of emergency health data and 

7 provide an effective mechanism for an individual to 

8 correct inaccurate information; 

9 (3) adopt reasonable safeguards to prevent un10 lawful discrimination on the basis of emergency 

11 health data; and 

12 (4) only disclose such data to a government en13 tity when the disclosure— 

14 (A) is to a public health authority; and 

15 (B) is made in solely for good faith public 

16 health purposes and in direct response to exi17 gent circumstances. 

18 (b) RIGHT TO SECURITY.—A covered organization or 

19 service provider that collects, uses, or discloses emergency 

20 health data shall establish and implement reasonable data 

21 security policies, practices, and procedures to protect the 

22 security and confidentiality of emergency health data. 

23 (c) PROHIBITED USES.—A covered organization shall 

24 not collect, use, or disclose emergency health data for any 

25 purpose not authorized under this section, including— 


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1 (1) commercial advertising, recommendation for 

2 e-commerce, or the training of machine-learning al3 gorithms related to, or subsequently for use in, com4 mercial advertising and e-commerce; 

5 (2) soliciting, offering, selling, leasing, licensing, 

6 renting, advertising, marketing, or otherwise com7 mercially contracting for employment, finance, cred8 it, insurance, housing, or education opportunities in 

9 a manner that discriminates or otherwise makes op10 portunities unavailable on the basis of emergency 

11 health data; and 

12 (3) segregating, discriminating in, or otherwise 

13 making unavailable the goods, services, facilities, 

14 privileges, advantages, or accommodations of any 

15 place of public accommodation (as such term is de16 fined in section 301 of the Americans With Disabil17 ities Act of 1990 (42 U.S.C. 12181)), except as au18 thorized by a State or Federal Government entity 

19 for a public health purpose notwithstanding sub20 section (g). 

21 (d) CONSENT.— 

22 (1) IN GENERAL.—It shall be unlawful for a 

23 covered organization to collect, use, or disclose emer24 gency health data, unless— 


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1 (A) the individual to whom the data per2 tains has given affirmative express consent to 

3 such collection, use, or disclosure; 

4 (B) such collection, use, or disclosure is 

5 necessary and for the sole purpose of— 

6 (i) protecting against malicious, de7 ceptive, fraudulent, or illegal activity; or 

8 (ii) detecting, responding to, or pre9 venting information security incidents or 

10 threats; or 

11 (C) the covered organization is compelled 

12 to do so by a legal obligation. 

13 (2) REVOCATION.— 

14 (A) IN GENERAL.—A covered organization 

15 shall provide an effective mechanism for an in16 dividual to revoke consent after it is given. 

17 (B) EFFECT.—After an individual revokes 

18 consent, the covered organization shall cease 

19 collecting, using, or disclosing the individual’s 

20 emergency health data as soon as practicable, 

21 but in no case later than 15 days after the re22 ceipt of the individual’s revocation of consent. 

23 (C) DESTRUCTION.—Not later than 30 

24 days after the receipt of an individual’s revoca25 tion of consent, a covered organization shall deVerDate Sep 11 2014 16:00 Jun 03, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3749.IS S3749

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1 stroy or render not linkable that individuals 

2 emergency health data under the same proce3 dures in subsection (f). 

4 (e) NOTICE.—A covered organization that collects, 

5 uses, or discloses emergency health data shall provide to 

6 an individual a privacy policy that— 

7 (1) is disclosed in a clear and conspicuous man8 ner, in the language in which the individual typically 

9 interacts with the covered organization, prior to or 

10 at the point of the collection of emergency health 

11 data; 

12 (2) describes how and for what purposes the 

13 covered organization collects, uses, and discloses 

14 emergency health data, including the categories of 

15 recipients to whom it discloses data and the purpose 

16 of disclosure for each category; 

17 (3) describes the covered organization’s data re18 tention and data security policies and practices for 

19 emergency health data; and 

20 (4) describes how an individual may exercise 

21 the rights under this Act and how to contact the 

22 Commission to file a complaint. 

23 (f) PUBLIC REPORTING.— 

24 (1) IN GENERAL.—A covered organization that 

25 collects, uses, or discloses emergency health data of 


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1 at least 100,000 individuals shall, at least once every 

2 90 days, issue a public report— 

3 (A) stating in aggregate terms the number 

4 of individuals whose emergency health data the 

5 covered organization collected, used, or dis6 closed to the extent practicable; and 

7 (B) describing the categories of emergency 

8 health data collected, used, or disclosed, the 

9 purposes for which each such category of emer10 gency health data was collected, used, or dis11 closed, and the categories of third parties to 

12 whom it was disclosed. 

13 (2) RULES OF CONSTRUCTION.—Nothing in 

14 this subsection shall be construed to require a cov15 ered organization to— 

16 (A) take an action that would convert data 

17 that is not emergency health data into emer18 gency health data; 

19 (B) collect or maintain emergency health 

20 data that the covered organization would other21 wise not maintain; or 

22 (C) maintain emergency health data longer 

23 than the covered organization would otherwise 

24 maintain such data. 

25 (g) REQUIRED DATA DESTRUCTION.— 


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1 (1) IN GENERAL.—A covered organization may 

2 not use or maintain emergency health data of an in3 dividual after the later of— 

4 (A) the date that is 60 days after the ter5 mination of the public health emergency de6 clared by the Secretary on January 31, 2020, 

7 pertaining to Coronavirus Disease 2019 

8 (COVID–19) under section 319 of the Public 

9 Health Service Act (42 U.S.C. 247d) and any 

10 renewals thereof; 

11 (B) the date that is 60 days after the ter12 mination of a public health emergency declared 

13 by a governor or chief executive of a State per14 taining to Coronavirus Disease 2019 (COVID– 

15 19) in which the individual resides; or 

16 (C) 60 days after collection. 

17 (2) REQUIREMENT.—For the requirements 

18 under paragraph (1), data shall be destroyed or ren19 dered not linkable in such a manner that it is impos20 sible or demonstrably impracticable to identify any 

21 individual from the data. 

22 (3) RELATION TO CERTAIN REQUIREMENTS.— 

23 The provisions of this subsection shall not supersede 

24 any requirements or authorizations under— 


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1 (A) the Privacy Act of 1974 (Public Law 

2 93–79); 

3 (B) the HIPPA regulations; or 

4 (C) Federal or State medical records reten5 tion and health privacy laws or regulations, or 

6 other applicable Federal or State laws. 

7 (h) EMERGENCY DATA COLLECTED, USED, OR DIS8 CLOSED BEFORE ENACTMENT.— 

9 (1) INITIATING A RULEMAKING.—Not later 

10 than 7 days after the date of enactment of this Act, 

11 the Commission shall initiate a public rulemaking to 

12 promulgate regulations to ensure a covered organiza13 tion that has collected, used, or disclosed emergency 

14 health data before the date of enactment of this Act 

15 is in compliance with this Act, to the degree prac16 ticable. 

17 (2) COMPLETING A RULEMAKING.—The Com18 mission shall complete the rulemaking within 45 

19 days after the date of enactment of this Act. 

20 (i) NON-APPLICATION TO MANUAL CONTACT TRAC21 ING AND CASE INVESTIGATION.—Nothing in this Act shall 

22 be construed to limit or prohibit a public health authority 

23 from administering programs or activities to identify indi24 viduals who have contracted, or may have been exposed 

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1 tigation, and other recognized investigatory measures by 

2 a public health authority or their designated agent by a 

3 public health authority or their designated agent intended 

4 to monitor and mitigate the transmission of a disease or 

5 disorder. 

6 (j) RESEARCH AND DEVELOPMENT.—This section 

7 shall not be construed to prohibit— 

8 (1) public health or scientific research associ9 ated with the COVID–19 public health emergency 

10 by— 

11 (A) a public health authority; 

12 (B) a nonprofit organization, as described 

13 in section 501(c)(3) of the Internal Revenue 

14 Code of 1986; or 

15 (C) an institution of higher education, as 

16 such term is defined in section 101 of the High17 er Education Act of 1965 (20 U.S.C. 1001); or 

18 (2) research, development, manufacture, or dis19 tribution of a drug, biological product, or vaccine 

20 that relates to a disease or disorder that is associ21 ated or potentially associated with a public health 

22 emergency. 

23 (k) LEGAL REQUIREMENTS.—Notwithstanding sub24 section (a)(5), nothing in this Act shall be construed to 

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1 erwise valid subpoenas, court orders, or other legal proc2 esses, or to prohibit storage or providing information as 

3 otherwise required by law. 

4 (l) APPLICATION TO HIPAA COVERED ENTITIES.— 

5 (1) IN GENERAL.—This Act does not apply to 

6 a ‘‘covered entity’’ or a person acting as a ‘‘business 

7 associate’’ under the HIPAA regulations (to the ex8 tent that such entities or associates are acting in 

9 such capacity) or any health care provider. 

10 (2) GUIDANCE FOR CONSISTENCY.—Not later 

11 than 30 days after the date of enactment of this 

12 Act, the Secretary shall promulgate guidance on the 

13 applicability of requirements, similar to those in this 

14 section to ‘‘covered entities’’ and persons acting as 

15 ‘‘business associates’’ under the HIPAA regulations. 

16 In promulgating such guidance, the Secretary shall 

17 reduce duplication of requirements and may exclude 

18 a requirement of this section if such requirement is 

19 already a requirement of the HIPAA regulations. 

20 SEC. 4. PROTECTING THE RIGHT TO VOTE. 

21 (a) IN GENERAL.—A government entity may not, and 

22 a covered organization may not knowingly facilitate, on 

23 the basis of an individual’s emergency health data, medical 

24 condition, or participation or non-participation in a pro25 gram to collect emergency health data— 


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1 (1) deny, restrict, or interfere with the right to 

2 vote in a Federal, State, or local election; 

3 (2) attempt to deny, restrict, or interfere with 

4 the right to vote in a Federal, State, or local elec5 tion; or 

6 (3) retaliate against an individual for voting in 

7 a Federal, State, or local election. 

8 (b) CIVIL ACTION.—In the case of any violation of 

9 subsection (a), an individual may bring a civil action to 

10 obtain appropriate relief against a government entity in 

11 a Federal district court. 

12 SEC. 5. REPORTS ON CIVIL RIGHTS IMPACTS. 

13 (a) REPORT REQUIRED.—The Secretary, in consulta14 tion with the United States Commission on Civil Rights 

15 and the Commission, shall prepare and submit to Con16 gress reports that examines the civil rights impact of the 

17 collection, use, and disclosure of health information in re18 sponse to the COVID–19 public health emergency. 

19 (b) SCOPE OF REPORT.—Each report required under 

20 subsection (a) shall, at a minimum— 

21 (1) evaluate the impact of such practices on 

22 civil rights and protections for individuals based on 

23 race, color, ethnicity, national origin, religion, sex, 

24 gender, gender identity, sexual orientation, age, 

25 Tribal affiliation, disability, domicile, employment 


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1 status, familial status, immigration status, or vet2 eran status; 

3 (2) analyze the impact, risks, costs, legal con4 siderations, disparate impacts, and other implica5 tions to civil rights of policies to incentivize or re6 quire the adoption of digital tools or apps used for 

7 contact tracing, exposure notification, or health 

8 monitoring; and 

9 (3) include recommendations on preventing and 

10 addressing undue or disparate impact, segregation, 

11 discrimination, or infringements of civil rights in the 

12 collection and use of health information, including 

13 during a national health emergency. 

14 (c) TIMING.— 

15 (1) INITIAL REPORT.—The Secretary shall sub16 mit an initial report under subsection (a) not sooner 

17 than 9 months, and not later than 12 months after 

18 the date of enactment of this Act. 

19 (2) SUBSEQUENT REPORTS.—The Secretary 

20 shall submit reports annually after the initial report 

21 required under paragraph (1) until 1 year after the 

22 termination of any public health emergency per23 taining to Coronavirus Disease 2019 (COVID–19) 

24 under section 319 of the Public Health Service Act 

25 (42 U.S.C. 247d). 


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1 SEC. 6. ENFORCEMENT. 

2 (a) FEDERAL TRADE COMMISSION.— 

3 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC4 TICES.—A violation of this Act or a regulation pro5 mulgated under this Act shall be treated as a viola6 tion of a rule defining an unfair or deceptive act or 

7 practice under section 18(a)(1)(B) of the Federal 

8 Trade Commission Act (15 U.S.C. 57a(a)(1)(B)) re9 garding unfair or deceptive acts or practices. 

10 (2) POWERS OF COMMISSION.—The Commis11 sion shall enforce this Act and the regulations pro12 mulgated under this Act in the same manner, by the 

13 same means, and with the same jurisdiction, powers, 

14 and duties as though all applicable terms and provi15 sions of the Federal Trade Commission Act (15 

16 U.S.C. 41 et seq.) were incorporated into and made 

17 a part of this Act. Any person who violates this Act 

18 or a regulation promulgated under this Act shall be 

19 subject to the penalties and entitled to the privileges 

20 and immunities provided in the Federal Trade Com21 mission Act. Provided, however, that, notwith22 standing the requirements of section 16(a) of the 

23 Federal Trade Commission Act (15 U.S.C. 56(a)), 

24 the Commission shall have the exclusive authority to 

25 commence or defend, and supervise the litigation of, 

26 any action for a violation of this Act or a regulation 


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1 promulgated under this Act and any appeal of such 

2 action in its own name by any of its attorneys des3 ignated by it for such purpose, without first refer4 ring the matter to the Attorney General. 

5 (3) RULEMAKING AUTHORITY.— 

6 (A) IN GENERAL.—The Commission shall 

7 have authority under section 553 of title 5, 

8 United States Code, to promulgate any regula9 tions necessary to implement this Act. 

10 (B) CONSULTATION.—In promulgating any 

11 regulations under this Act, the Commission 

12 shall consult with the Secretary. 

13 (4) COMMON CARRIERS AND NONPROFIT ORGA14 NIZATIONS.—Notwithstanding section 4, 5(a)(2), or 

15 6 of the Federal Trade Commission Act (15 U.S.C. 

16 44; 45(a)(2); 46) or any jurisdictional limitation of 

17 the Commission, the Commission shall also enforce 

18 this Act, in the same manner provided in paragraphs 

19 (1) and (2) of this paragraph, with respect to— 

20 (A) common carriers subject to the Acts to 

21 regulate commerce, air carriers, and foreign air 

22 carriers subject to part A of subtitle VII of title 

23 49, and persons, partnerships, or corporations 

24 insofar as they are subject to the Packers and 

25 Stockyards Act, 1921 (7 U.S.C. 181 et seq.), 


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1 except as provided in section 406(b) of such Act 

2 (7 U.S.C. 227(b)); and 

3 (B) organizations not organized to carry 

4 on business for their own profit or that of their 

5 members. 

6 (b) ENFORCEMENT BY STATES.— 

7 (1) IN GENERAL.—In any case in which the at8 torney general of a State has reason to believe that 

9 an interest of the residents of the State has been or 

10 is threatened or adversely affected by the engage11 ment of any person subject to this Act in a practice 

12 that violates such subsection, the attorney general of 

13 the State may, as parens patriae, bring a civil action 

14 on behalf of the residents of the State in an appro15 priate district court of the United States to obtain 

16 appropriate relief. 

17 (2) RIGHTS OF THE FEDERAL TRADE COMMIS18 SION.— 

19 (A) NOTICE TO FEDERAL TRADE COMMIS20 SION.— 

21 (i) IN GENERAL.—Except as provided 

22 in clause (iii), the attorney general of a 

23 State shall notify the Commission in writ24 ing that the attorney general intends to 

25 bring a civil action under paragraph (1) 


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1 before initiating the civil action against a 

2 person subject to this Act. 

3 (ii) CONTENTS.—The notification re4 quired by clause (i) with respect to a civil 

5 action shall include a copy of the complaint 

6 to be filed to initiate the civil action. 

7 (iii) EXCEPTION.—If it is not feasible 

8 for the attorney general of a State to pro9 vide the notification required by clause (i) 

10 before initiating a civil action under para11 graph (1), the attorney general shall notify 

12 the Commission immediately upon insti13 tuting the civil action. 

14 (B) INTERVENTION BY THE FEDERAL

15 TRADE COMMISSION.—The Commission may— 

16 (i) intervene in any civil action 

17 brought by the attorney general of a State 

18 under paragraph (1); and 

19 (ii) upon intervening— 

20 (I) be heard on all matters aris21 ing in the civil action; and 

22 (II) file petitions for appeal of a 

23 decision in the civil action. 

24 (C) INVESTIGATORY POWERS.—Nothing in 

25 this subsection may be construed to prevent the 


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1 attorney general of a State from exercising the 

2 powers conferred on the attorney general by the 

3 laws of the State to conduct investigations, to 

4 administer oaths or affirmations, or to compel 

5 the attendance of witnesses or the production of 

6 documentary or other evidence. 

7 (3) ACTION BY THE FEDERAL TRADE COMMIS8 SION.—If the Commission institutes a civil action 

9 with respect to a violation of this Act, the attorney 

10 general of a State may not, during the pendency of 

11 such action, bring a civil action under paragraph (1) 

12 of this subsection against any defendant named in 

13 the complaint of the Commission for the violation 

14 with respect to which the Commission instituted 

15 such action. 

16 (4) VENUE; SERVICE OF PROCESS.— 

17 (A) VENUE.—Any action brought under 

18 paragraph (1) may be brought in— 

19 (i) the district court of the United 

20 States that meets applicable requirements 

21 relating to venue under section 1391 of 

22 title 28, United States Code; or 

23 (ii) another court of competent juris24 diction. 


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•S 3749 IS

1 (B) SERVICE OF PROCESS.—In an action 

2 brought under paragraph (1), process may be 

3 served in any district in which the defendant— 

4 (i) is an inhabitant; or 

5 (ii) may be found. 

6 (C) ACTIONS BY OTHER STATE OFFI7 CIALS.— 

8 (i) IN GENERAL.—In addition to civil 

9 actions brought by attorneys general under 

10 paragraph (1), any other officer of a State 

11 who is authorized by the State to do so 

12 may bring a civil action under paragraph 

13 (1), subject to the same requirements and 

14 limitations that apply under this sub15 section to civil actions brought by attor16 neys general. 

17 (ii) SAVINGS PROVISION.—Nothing in 

18 this subsection may be construed to pro19 hibit an authorized official of a State from 

20 initiating or continuing any proceeding in 

21 a court of the State for a violation of any 

22 civil or criminal law of the State. 

23 (c) PRIVATE RIGHT OF ACTION.— 

24 (1) ENFORCEMENT BY INDIVIDUALS.— 


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•S 3749 IS

1 (A) IN GENERAL.—Any individual alleging 

2 a violation of this Act may bring a civil action 

3 in any court of competent jurisdiction, State or 

4 Federal. 

5 (B) RELIEF.—In a civil action brought 

6 under paragraph (1) in which the plaintiff pre7 vails, the court may award— 

8 (i) an amount not less than $100 and 

9 not greater than $1,000 per violation 

10 against any person who negligently violates 

11 a provision of this Act; 

12 (ii) an amount not less than $500 and 

13 not greater than $5,000 per violation 

14 against any person who recklessly, will15 fully, or intentionally violates a provision of 

16 this Act; 

17 (iii) reasonable attorney’s fees and 

18 litigation costs; and 

19 (iv) any other relief, including equi20 table or declaratory relief, that the court 

21 determines appropriate. 

22 (C) INJURY IN FACT.—A violation of this 

23 Act with respect to the emergency health data 

24 of an individual constitutes a concrete and par25 ticularized injury in fact to that individual. 


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1 (2) INVALIDITY OF PRE-DISPUTE ARBITRATION

2 AGREEMENTS AND PRE-DISPUTE JOINT ACTION

3 WAIVERS.— 

4 (A) IN GENERAL.—Notwithstanding any 

5 other provision of law, no pre-dispute arbitra6 tion agreement or pre-dispute joint action waiv7 er shall be valid or enforceable with respect to 

8 a dispute arising under this Act. 

9 (B) APPLICABILITY.—Any determination 

10 as to whether or how this subsection applies to 

11 any dispute shall be made by a court, rather 

12 than an arbitrator, without regard to whether 

13 such agreement purports to delegate such deter14 mination to an arbitrator. 

15 (C) DEFINITIONS.—In this subsection: 

16 (i) The term ‘‘pre-dispute arbitration 

17 agreement’’ means any agreement to arbi18 trate a dispute that has not arisen at the 

19 time of making the agreement. 

20 (ii) The term ‘‘pre-dispute joint-action 

21 waiver’’ means an agreement, whether or 

22 not part of a pre-dispute arbitration agree23 ment, that would prohibit, or waive the 

24 right of, one of the parties to the agree25 ment to participate in a joint, class, or colVerDate Sep 11 2014 16:00 Jun 03, 2020 Jkt 099200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S3749.IS S3749

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•S 3749 IS

1 lective action in a judicial, arbitral, admin2 istration, or other forum, concerning a dis3 pute that has not yet arisen at the time of 

4 making the agreement. 

5 (iii) The term ‘‘dispute’’ means any 

6 claim related to an alleged violation of this 

7 Act and between an individual and a cov8 ered organization. 

9 SEC. 7. NONPREEMPTION. 

10 Nothing in this Act shall preempt or supersede, or 

11 be interpreted to preempt or supersede, any Federal or 

12 State law or regulation, or limit the authority of the Com13 mission or the Secretary under any other provision of law. 

14 SEC. 8. EFFECTIVE DATE. 

15 (a) IN GENERAL.—This Act shall apply beginning on 

16 the date that is 30 days after the date of enactment of 

17 this Act. 

18 (b) AUTHORITY TO PROMULGATE REGULATIONS AND

19 TAKE CERTAIN OTHER ACTIONS.—Nothing in subsection 

20 (a) affects— 

21 (1) the authority of any person to take an ac22 tion expressly required by a provision of this Act be23 fore the effective date described in such subsection; 

24 or 


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1 (2) the authority of the Commission to promul2 gate regulations to implement this Act or begin a 

3 rulemaking to promulgate such regulations. 

Æ 


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