G:\M\16\ESHOO\ESHOO_038.XML ..................................................................... (Original Signature of Member) 116TH CONGRESS 1ST SESSION H. R. ll To provide for individual rights relating to privacy of personal information, to establish privacy and security requirements for covered entities relating to personal information, and to establish an agency to be known as the United States Digital Privacy Agency to enforce such rights and requirements, and for other purposes. IN THE HOUSE OF REPRESENTATIVES Ms. ESHOO introduced the following bill; which was referred to the Committee on llllllllllllll A BILL To provide for individual rights relating to privacy of personal information, to establish privacy and security requirements for covered entities relating to personal information, and to establish an agency to be known as the United States Digital Privacy Agency to enforce such rights and requirements, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 2 1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 2 (a) SHORT TITLE.—This Act may be cited as the 3 ‘‘Online Privacy Act of 2019’’. 4 (b) TABLE OF CONTENTS.—The table of contents for 5 this Act is as follows: Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 1. 2. 3. 4. 5. 6. 7. 8. Short title; table of contents. Definitions. Prohibition on waivers. Effective date. Journalism protection. Small business compliance ramp. Criminal prohibition on disclosing personal information. Limitation on disclosing nonredacted government records. TITLE I—INDIVIDUAL RIGHTS Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 101. 102. 103. 104. 105. 106. 107. 108. 109. Right of access. Right of correction. Right of deletion. Right of portability. Right to human review of automated decisions. Right to individual autonomy. Right to be informed. Right to impermanence. Exemptions, exceptions, fees, timelines, and rules of construction for rights under this title. TITLE II—REQUIREMENTS FOR COVERED ENTITIES, SERVICE PROVIDERS, AND THIRD PARTIES Sec. 201. Minimization and articulated basis for collection, processing, and maintenance. Sec. 202. Minimization and records of access by employees and contractors. Sec. 203. Prohibition on the collection or maintenance of personal information. Sec. 204. Prohibitions on the disclosure of personal information. Sec. 205. Disclosure to entities not subject to united states jurisdiction or not compliant with this act. Sec. 206. Prohibition on reidentification. Sec. 207. Restrictions on collection, processing and disclosure of contents of communications. Sec. 208. Prohibition on discriminatory processing. Sec. 209. Restrictions on genetic information. Sec. 210. Requirements for notice and consent processes and privacy policies. Sec. 211. Prohibition on deceptive notice and consent processes and privacy policies. Sec. 212. Notice and consent required. Sec. 213. Privacy policy. Sec. 214. Information security requirements. Sec. 215. Notification of data breach or data sharing abuse. TITLE III—UNITED STATES DIGITAL PRIVACY AGENCY g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 3 Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 301. 302. 303. 304. 305. 306. 307. 308. 309. 310. 311. 312. 313. 314. Establishment. Executive and administrative powers. Rulemaking authority. Personnel. Complaints of individuals. User advisory board. Academic and research advisory board. Small business and investor advisory board. Consultation. Reports. Grants for developing open-source machine learning training data. Annual audits. Inspector General. Authorization of appropriations. TITLE IV—ENFORCEMENT Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 401. 402. 403. 404. 405. 406. 407. 408. 409. 410. Definitions. Investigations and administrative discovery. Hearings and adjudication proceedings. Litigation authority. Coordination with other Federal agencies. Enforcement by States. Private rights of action. Relief available. Referral for criminal proceedings. Whistleblower enforcement. TITLE V—RELATION TO OTHER LAW Sec. 501. Relation to other Federal law. Sec. 502. Severability. 1 SEC. 2. DEFINITIONS. 2 In this Act: 3 (1) AGENCY.—The term ‘‘Agency’’ means the 4 United States Digital Privacy Agency established by 5 section 301. 6 (2) BEHAVIORAL 7 (A) IN GENERAL.—The term ‘‘behavioral 8 personalization’’ means the processing of an in- 9 dividual’s personal information, using an algo- 10 rithm, model, or other means built using that 11 individual’s personal information collected over g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 PERSONALIZATION.— 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 4 1 a period of time, or an aggregate of the per- 2 sonal information of one or more similarly situ- 3 ated individuals and designed to— 4 (i) alter, influence, guide, or predict 5 an individual’s behavior; 6 (ii) tailor or personalize a product or 7 service; or 8 (iii) filter, sort, limit, promote, display 9 or otherwise differentiate between specific 10 content or categories of content that would 11 otherwise be accessible to the individual. 12 (B) EXCLUSIONS.—The term ‘‘behavioral 13 personalization’’ does not include the use of his- 14 torical personal information to merely prevent 15 the display of or provide additional information 16 about previously accessed content. 17 (3) COLLECT.—The term ‘‘collect’’ includes, 18 with respect to personal information or contents of 19 communication, obtaining such information in any 20 manner, except when solely transmitting, routing, 21 providing intermediate storage for, or providing con- 22 nections for personal information through a system 23 or network. 24 (4) CONTENTS.—The term ‘‘contents’’, when 25 used with respect to communication, has the mean- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 5 1 ing given such term in section 2510 of title 18, 2 United States Code. 3 (5) COVERED 4 (A) IN 5 GENERAL.—The term ‘‘covered en- tity’’ means a person who— 6 (i) intentionally collects, processes, or 7 maintains personal information; and 8 (ii) sends or receives such personal in- 9 formation over the internet or a similar 10 communications network. 11 (B) EXCLUSION.—The term ‘‘covered enti- 12 ty’’ does not include a natural person, except to 13 the extent such person is engaged in a commer- 14 cial activity that is more than de minimis. 15 (6) DATA BREACH.—The term ‘‘data breach’’ 16 means unauthorized access to or acquisition of per- 17 sonal information or contents of communications 18 maintained by such covered entity. 19 (7) DATA SHARING ABUSE.—The term ‘‘data 20 sharing abuse’’ means processing, by a third party, 21 of personal information or contents of communica- 22 tions disclosed by a covered entity to the third party, 23 for any purpose other than— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 ENTITY.— 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 6 1 (A) a purpose specified by the covered en- 2 tity to the third party at the time of disclosure; 3 or 4 (B) a purpose to which the individual to 5 whom the information relates has consented. 6 (8) DE-IDENTIFIED.— 7 (A) IN term ‘‘de-identi- 8 fied’’ means information that cannot reasonably 9 identify, relate to, describe, reference, be capa- 10 ble of being associated with, or be linked, di- 11 rectly or indirectly, to a particular individual or 12 device, provided that a business that uses de- 13 identified information— 14 (i) has de-identified the personal in- 15 formation using best practices for the 16 types of data the information contains; 17 (ii) has implemented technical safe- 18 guards that prohibit re-identification of the 19 individual with whom the information was 20 linked; 21 (iii) has implemented business proc- 22 esses that specifically prohibit re-identifica- 23 tion of the information; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 7 1 (iv) has implemented business proc- 2 esses to prevent inadvertent release of de- 3 identified information; and 4 (v) makes no attempt to re-identify 5 the information. 6 (B) The Director may determine that a 7 methodology of de-identifying personal informa- 8 tion is insufficient for the purposes of this defi- 9 nition. 10 11 (9) DIRECTOR.—The term ‘‘Director’’ means the Director of the Agency. 12 (10) DISCLOSE.—The term ‘‘disclose’’ means, 13 with respect to personal information or contents of 14 communication, to sell, release, transfer, share, dis- 15 seminate, make available, or otherwise cause to be 16 communicated such information to a third party. 17 (11) term ‘‘individual’’ 18 means a natural person residing in the United 19 States. 20 (12) MAINTAIN.—The term ‘‘maintain’’ means, 21 with respect to personal information or contents of 22 communication, to store, secure, or otherwise cause 23 the retaining of such information, or taking actions 24 necessary for such purposes. 25 (13) PERSONAL g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 INDIVIDUAL.—The 12:16 Oct 29, 2019 Jkt 000000 INFORMATION.— (739203 28) PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 8 1 (A) IN term ‘‘personal in- 2 formation’’ means any information maintained 3 by a covered entity that is linked or reasonably 4 linkable to a specific individual or a specific de- 5 vice, including de-identified personal informa- 6 tion and the means to behavioral personaliza- 7 tion created for or linked to a specific indi- 8 vidual. 9 (B) EXCLUSIONS.—The term ‘‘personal in- 10 formation’’ does not include— 11 (i) publicly available information re- 12 lated to an individual; or 13 (ii) information derived or inferred 14 from personal information, if the derived 15 or inferred information is not linked or 16 reasonably linkable to a specific individual. 17 (14) PRIVACY HARM.—The term ‘‘privacy 18 harm’’ means adverse consequences or potential ad- 19 verse consequences to an individual or society arising 20 from the collection, processing, maintenance, or dis- 21 closure of personal information, including— 22 (A) direct or indirect financial loss or eco- 23 nomic harm; 24 (B) physical harm; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 9 1 (C) psychological harm, including anxiety, 2 embarrassment, fear, and other demonstrable 3 mental trauma; 4 (D) adverse outcomes or decisions with re- 5 spect to the eligibility of an individual for 6 rights, benefits, or privileges in employment (in- 7 cluding hiring, firing, promotion, demotion, and 8 compensation), credit and insurance (including 9 denial of an application or obtaining less favor- 10 able terms), housing, education, professional 11 certification, or the provision of health care and 12 related services; 13 (E) stigmatization or reputational harm; 14 (F) price discrimination; 15 (G) other adverse consequences that affect 16 the private life of an individual, including pri- 17 vate family matters and actions and commu- 18 nications within the home of such individual or 19 a similar physical, online, or digital location 20 where such individual has a reasonable expecta- 21 tion that personal information will not be col- 22 lected, processed, or retained; 23 (H) chilling of free expression or action of 24 an individual, group of individuals, or society 25 generally, due to perceived or actual pervasive g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 10 1 and excessive collection, processing, disclosure, 2 or maintenance of personal information by a 3 covered entity; 4 (I) impairing the autonomy of an indi- 5 vidual, group of individuals, or society gen- 6 erally; and 7 (J) other adverse consequences or potential 8 adverse consequences, consistent with the provi- 9 sions of this Act, as determined by the Direc- 10 tor. 11 (15) PRIVACY 12 (A) IN 13 GENERAL.—The term ‘‘privacy pre- serving computing’’ means— 14 (i) the collecting, processing, dis- 15 closing, or maintaining of personal infor- 16 mation that has been encrypted or other- 17 wise rendered unintelligible using a means 18 that cannot be reversed by a covered enti- 19 ty, or a covered entity’s service provider, 20 such that— 21 (I) if such personal information 22 could be rendered intelligible through 23 cooperation 24 tographic secrets by multiple persons, 25 the covered entity has both technical g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 PRESERVING COMPUTING.— 12:16 Oct 29, 2019 Jkt 000000 or sharing of cryp- (739203 28) PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 11 1 safeguards and business processes to 2 prevent such cooperation or sharing; 3 (II) if such personal information 4 is rendered intelligible within a hard- 5 ware processing unit or other means 6 of performing operations on the infor- 7 mation, there are technical safeguards 8 that, during the normal course of op- 9 eration— 10 (aa) prevent rendering per- 11 sonal information intelligible any- 12 where but within the hardware 13 processing unit or other means of 14 performing operations; and 15 (bb) make the exporting or 16 otherwise observing of such intel- 17 ligible information, or the cryp- 18 tographic secret used to protect 19 such information, impossible; and 20 (III) if the result of such proc- 21 essing of the personal information is 22 also personal information, such result 23 must be unintelligible to the covered 24 entity or service provider and pro- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 12 1 tected by privacy preserving com- 2 puting. 3 (B) INSUFFICIENT 4 Director may determine that a methodology of 5 privacy preserving computing is insufficient for 6 the purposes of this definition. 7 (16) PROCESS.—The term ‘‘process’’ means to 8 perform or cause to be performed any operation or 9 set of operations on personal information or contents 10 of communication, whether or not by automated 11 means. 12 (17) PROTECTED CLASS.—The term ‘‘protected 13 class’’ means the actual or perceived race, color, eth- 14 nicity, national origin, religion, sex (including sexual 15 orientation and gender identity), familial status, or 16 disability of an individual or group of individuals. 17 (18) PUBLICLY AVAILABLE INFORMATION.— 18 The term ‘‘publicly available information’’ means— 19 (A) information that is lawfully made 20 available from Federal, State, or local govern- 21 ment records; 22 (B) information about a public individual 23 or official that is made publicly accessible, with- 24 out restrictions on accessibility other than the g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 METHODOLOGIES.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 13 1 general authorization to access the services used 2 to make the information accessible; 3 (C) information made publicly accessible 4 by the individual to whom it pertains, without 5 restrictions on accessibility other than the gen- 6 eral authorization to access the services used to 7 make the information accessible, and that such 8 individual has the ability to delete or change 9 without relying on a request under section 102 10 or 103 of this Act; and 11 (D) does not include— 12 (i) biometric information collected by 13 a covered entity relating to an individual 14 without the individual’s knowledge; 15 (ii) information used for a purpose 16 that is not compatible with the purpose for 17 which the information is maintained and 18 made available in government records; 19 (iii) information obtained from gov- 20 ernment records for the purpose of selling 21 such information; or 22 (iv) information used to contact or lo- 23 cate a private individual either physically 24 or electronically. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 14 1 (19) REASONABLE term 2 ‘‘reasonable mechanism’’ means, in the case of a 3 mechanism for individuals to exercise a right under 4 title I or interact with a covered entity under title 5 II, that such mechanism— 6 (A) is equivalent in availability and ease of 7 use to that of other mechanisms for commu- 8 nicating or interacting with the covered entity; 9 and 10 (B) includes an online means of exercising 11 such right or engaging in such interaction, if 12 such individuals communicate or interact with 13 such covered entity through an online medium 14 or if such covered entity provides information 15 processing services through a public or widely 16 available application programming interface (or 17 similar mechanism). 18 (20) SELL 19 AND SALE.— (A) IN GENERAL.—The terms ‘‘sell’’ and 20 ‘‘sale’’ means the disclosure of personal infor- 21 mation for monetary consideration by a covered 22 entity to a third party for the purposes of proc- 23 essing, maintaining or disclosing such personal 24 information at the third party’s discretion. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 MECHANISM.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 15 1 (B) EXCLUSIONS.—The terms ‘‘sell’’ and 2 ‘‘sale’’ do not include— 3 (i) the disclosure of personal data to 4 a third party with which the individual has 5 a direct relationship for purposes of pro- 6 viding a product or service requested by 7 the individual or otherwise in a manner 8 that is consistent with an individual’s rea- 9 sonable expectations considering the con- 10 text in which the individual provided the 11 personal information to the covered entity; 12 (ii) the disclosure or transfer of per- 13 sonal information to a subsidiary or an af- 14 filiate of the covered entity; or 15 (iii) the disclosure or transfer of per- 16 sonal information to a third party as an 17 asset that is part of a merger, acquisition, 18 bankruptcy, or other transaction in which 19 the third party assumes control of all or 20 part of the covered entity’s assets, unless 21 such assets are limited to personal infor- 22 mation unless personal information makes 23 up the majority of the value of such assets. 24 (21) SERVICE g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 PROVIDER.— (739203 28) PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 16 1 (A) IN 2 term ‘‘service pro- vider’’ means a covered entity who— 3 (i) processes, discloses, or maintains 4 personal information, where such person 5 does not process, disclose, or maintain the 6 personal information other than in accord- 7 ance with the directions and on behalf of 8 another covered entity; 9 (ii) does not directly collect personal 10 information from or control the mechanism 11 for collecting personal information from an 12 individual; 13 (iii) does not earn revenue from proc- 14 essing, maintaining, or disclosing personal 15 information disclosed to the service pro- 16 vider by a covered entity except by pro- 17 viding contracted services to another cov- 18 ered entity; 19 (iv) does not disclose personal infor- 20 mation to another covered entity unless it 21 was provided by that covered entity or re- 22 sulted from maintaining or processing per- 23 formed on personal information exclusively 24 provide by that covered entity; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 17 1 (v) does not offer services that allow 2 another covered entity to target specific in- 3 dividuals using personal information not 4 provided by that covered entity; 5 (vi) assists a covered entity on behalf 6 of which it processes personal information 7 to comply with title I, with respect to per- 8 sonal information processed or maintained 9 by the service provider on behalf of the 10 covered entity, including providing tools for 11 such covered entities requirements under 12 title I if requested; and 13 (vii) does not link the personal infor- 14 mation provided by another covered entity 15 to personal information from any other 16 source. 17 (B) Any such person, and the personal in- 18 formation they disclose, process, or maintain, 19 shall be treated as a service provider under this 20 Act only to the extent that such person com- 21 plies with the requirements under (A). 22 (22) SIGNIFICANT term 23 ‘‘significant privacy harm’’ means adverse con- 24 sequences to an individual arising from the collec- 25 tion, processing, maintenance, or disclosure of per- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 PRIVACY HARM.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 18 1 sonal information, limited to subparagraph (A), (B), 2 or (D) of paragraph (14). 3 4 (23) SMALL term ‘‘small busi- ness’’ means a covered entity that— 5 (A) does not earn revenue from the sale of 6 personal information; 7 (B) earns less than half of annual revenues 8 from the processing of personal information for 9 targeted or personalized advertising; 10 (C) has not, at any time during the pre- 11 ceding 6-month period, maintained personal in- 12 formation of 250,000 or more individuals; 13 (D) has fewer than 200 employees; and 14 (E) received less than $25,000,000 in 15 gross revenue in the preceding 12-month pe- 16 riod. 17 (24) STATE.—The term ‘‘State’’ means each 18 State of the United States, the District of Columbia, 19 each commonwealth, territory, or possession of the 20 United States, and each federally recognized Indian 21 Tribe. 22 (25) THIRD PARTY.—The term ‘‘third party’’ 23 means, with respect to a covered entity, a person— 24 (A) to whom such covered entity disclosed 25 personal information; and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 BUSINESS.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 19 1 (B) is not— 2 (i) such covered entity; 3 (ii) a subsidiary or corporate affiliate 4 of such covered entity; or 5 (iii) a service provider of such covered 6 7 entity. SEC. 3. PROHIBITION ON WAIVERS. 8 (a) IN GENERAL.—The provisions under this Act 9 may not be waived. Any agreement purporting to waive 10 compliance with or modify any provision of this Act shall 11 be void as contrary to public policy. 12 (b) PROHIBITION ON PREDISPUTE ARBITRATION 13 AGREEMENTS.—No predispute arbitration agreement 14 shall be valid or enforceable with respect to any claims 15 under this Act. 16 SEC. 4. EFFECTIVE DATE. 17 (a) IN GENERAL.—This Act shall apply beginning on 18 the date that is 1 year after the date of the enactment 19 of this Act. 20 (b) AUTHORITY TO PROMULGATE REGULATIONS AND 21 TAKE CERTAIN OTHER ACTIONS.—Nothing in subsection 22 (a) affects the authority to take an action expressly re23 quired by a provision of this Act to be taken before the 24 effective date described in such subsection. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 20 1 SEC. 5. JOURNALISM PROTECTION. 2 (a) IN GENERAL.—Covered entities engaged in jour- 3 nalism shall not be subject to the obligations imposed 4 under this Act to the extent that those obligations directly 5 infringe on the journalism rather than the business prac6 tices of the covered entity, so long as, the covered entity 7 has technical safeguards and business processes that pre8 vent the collection, processing, maintaining, or disclosure 9 of such personal information for business practices other 10 than journalism 11 (b) JOURNALISM.—The term ‘‘journalism’’ includes 12 the collecting, maintaining, processing, and disclosing of 13 personal information about a public individual or official, 14 or that otherwise concerns matters of public interest, for 15 dissemination to the public. 16 SEC. 6. SMALL BUSINESS COMPLIANCE RAMP. 17 Upon losing its status as a small business, a covered 18 entity shall have nine months to comply with provisions 19 of this Act that a small business is exempt from complying 20 with. 21 SEC. 7. CRIMINAL PROHIBITION ON DISCLOSING PER- 22 23 SONAL INFORMATION. Chapter 41 of title 18, United States Code, is amend- 24 ed by adding at the end the following: g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 21 1 ‘‘§ 881. Disclosure of personal information with the 2 intent to cause harm 3 ‘‘Whoever uses a channel of interstate or foreign com- 4 merce to knowingly disclose an individual’s personal infor5 mation— 6 ‘‘(1) with the intent to threaten, intimidate, or 7 harass any person, incite or facilitate the commis- 8 sion of a crime of violence against any person, or 9 place any person in reasonable fear of death or seri- 10 ous bodily injury; or 11 ‘‘(2) with the intent that the information will be 12 used to threaten, intimidate, or harass any person, 13 incite or facilitate the commission of a crime of vio- 14 lence against any person, or place any person in rea- 15 sonable fear of death or serious bodily injury, 16 shall be fined under this title or imprisoned not more than 17 5 years, or both.’’. 18 SEC. 8. LIMITATION ON DISCLOSING NONREDACTED GOV- 19 20 ERNMENT RECORDS. (a) IN GENERAL.—A Federal or State government 21 entity may not use a channel of interstate commerce to 22 disclose the personal information of an individual in a gov23 ernment record without an agreement prohibiting the re24 cipient of such information from selling the information 25 without the express consent of the individual for each dis26 closure. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 22 1 (b) EXCEPTION.—Notwithstanding subsection (a), 2 nothing in this section shall prohibit the disclosure of per3 sonal information using a channel of interstate commerce 4 to another government entity without consent of the indi5 vidual. TITLE I—INDIVIDUAL RIGHTS 6 7 SEC. 101. RIGHT OF ACCESS. 8 (a) IN GENERAL.—A covered entity shall make avail- 9 able a reasonable mechanism by which an individual may 10 access— 11 (1) the categories of personal information and 12 contents of communications of such individual that 13 is maintained by such covered entity, including, in 14 the case of personal information that such covered 15 entity did not collect from such individual, how and 16 from whom such covered entity obtained such per- 17 sonal information; 18 (2) a list of the third parties, subsidiaries, and 19 corporate affiliates, to which such covered entity has 20 disclosed and from which such covered entity has, at 21 any time on or after the effective date specified in 22 section 4(a), obtained the personal information of 23 such individual; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 23 1 (3) a concise and clear description of the busi- 2 ness or commercial purposes of such covered enti- 3 ty— 4 (A) for collecting, processing, or maintain- 5 ing the personal information of such individual; 6 and 7 (B) for disclosing to a third party the per- 8 sonal information of such individual; and 9 (4) a list of automated decision-making proc- 10 esses that an individual has a right to request 11 human review of under section 105 with a concise 12 and clear description of the implications and in- 13 tended effects of such process. 14 (b) EXCEPTION 15 MATION.—A FOR PUBLICLY ACCESSIBLY INFOR- covered entity that makes available informa- 16 tion required in subsection (a) shall be considered in com17 pliance with such requirements if the covered entity pro18 vides an individual instructions on how to access a public 19 posting of such information, including in a privacy policy, 20 if the instructions are easy and do not require payment. 21 (c) SMALL BUSINESSES EXCLUDED.—Subsection 22 (a)(3) does not apply to a small business. 23 SEC. 102. RIGHT OF CORRECTION. 24 (a) DISPUTE BY INDIVIDUAL.—A covered entity shall 25 make available a reasonable mechanism by which an indi- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 24 1 vidual may dispute the accuracy or completeness of per2 sonal information linked to such individual that is main3 tained by such covered entity if such information is proc4 essed in any way, by such covered entity, a third party 5 of such covered entity, or a service provider of such cov6 ered entity that may increase reasonably foreseeable sig7 nificant privacy harms. 8 (b) CORRECTION BY COVERED ENTITY.—A covered 9 entity receiving a dispute under subsection (a) shall— 10 (1) correct or complete (as the case may be) the 11 disputed information and notify such individual that 12 the correction or completion has been made; or 13 (2) notify such individual that— 14 (A) the disputed information is correct or 15 complete; 16 (B) such covered entity lacks sufficient in- 17 formation to correct or complete the disputed 18 information; or 19 (C) such covered entity is denying the re- 20 quest for correction or completion in reliance on 21 an exemption or exception provided by section 22 109(g) (with the notification containing an 23 identification of the specific exemption or excep- 24 tion relied upon). g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 25 1 (c) SMALL BUSINESSES EXCLUDED.—This section 2 does not apply to a small business. 3 SEC. 103. RIGHT OF DELETION. 4 (a) REQUEST BY INDIVIDUAL.—A covered entity 5 shall make available a reasonable mechanism by which an 6 individual may request the deletion of personal informa7 tion and contents of communications of such individual 8 maintained by such covered entity, including any such in9 formation that such covered entity acquired from a third 10 party or inferred from other information maintained by 11 such covered entity. 12 (b) DELETION BY COVERED ENTITY.—A covered en- 13 tity receiving a request for deletion under subsection (a) 14 shall— 15 (1) delete such information and notify such in- 16 dividual that such information has been deleted; or 17 (2) notify such individual that such covered en- 18 tity is denying the request for deletion in reliance on 19 an exemption or exception provided by section 20 109(g) (with the notification containing an identi- 21 fication of the specific exemption or exception relied 22 upon). 23 SEC. 104. RIGHT OF PORTABILITY. 24 (a) DETERMINATION g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 OF PORTABLE CATEGORIES.— (739203 28) PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 26 1 2 (1) ANNUAL less fre- quently than once per year, the Director shall— 3 (A) establish categories of products and 4 services offered by covered entities, based on 5 similarities in the products and services; 6 (B) determine which categories established 7 under subparagraph (A) are portable categories; 8 and 9 (C) publish in the Federal Register a list 10 of portable categories determined under sub- 11 paragraph (B). 12 (2) OPPORTUNITY FOR PUBLIC COMMENT.—Be- 13 fore publishing the final list under paragraph (1)(C), 14 the Director shall— 15 (A) publish a draft of such list in the Fed- 16 eral Register; and 17 (B) provide for an opportunity for public 18 19 comment on such draft list. (b) EXERCISE OF RIGHT.— 20 (1) IN GENERAL.—A covered entity that offers 21 a product or service in a portable category shall 22 make available to an individual whose personal infor- 23 mation or contents of communications such entity 24 maintains a reasonable mechanism by which such in- 25 dividual may— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 DETERMINATION.—Not 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 27 1 (A) download, in a format that is struc- 2 tured, commonly used, and machine-readable— 3 (i) any personal information of such 4 individual that such individual has pro- 5 vided to such covered entity, with the op- 6 tion to download such information by cat- 7 egory that is accessible under section 101 8 of this Act; and 9 (ii) any contents of communications; 10 and 11 (B) using a real-time application program- 12 ming interface, or similar mechanism, transmit 13 all personal information and contents of com- 14 munications of or related to such individual 15 (whether or not provided to such covered entity 16 by such individual) from such covered entity to 17 another covered entity in accordance with sub- 18 section (c). 19 (2) REQUIREMENTS 20 GRAMMING INTERFACE.—The 21 ming interface, or similar mechanism, required by 22 paragraph (1)(B) shall— APPLICATION PRO- application program- 23 (A) be publicly documented; 24 (B) allow the option of data to be obtained 25 by category that is accessible under section 101; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 FOR 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 28 1 (C) include a publicly available, fully func- 2 tional test version for development purposes; 3 and 4 (D) be of similar quality to mechanisms 5 6 used internally by the covered entity. (c) REQUIREMENTS FOR ACCESS TO APPLICATION 7 PROGRAMMING INTERFACE.— 8 (1) ACCESS.—A covered entity shall provide ac- 9 cess to the application programming interface or 10 similar mechanism required by subsection (b)(1)(B) 11 upon the request of another covered entity if the re- 12 questing covered entity has self-certified, using the 13 procedures established by the Director under para- 14 graph (3)(A), that such requesting covered entity— 15 (A) is a covered entity; 16 (B) can have personal information dis- 17 closed to it under section 205 of this Act; 18 (C) is, at the time of the self-certification, 19 in compliance with all requirements of this Act 20 (including provisions a small business is other- 21 wise exempt from complying with); 22 (D) will continue to comply with all re- 23 quirements of this Act; and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 29 1 (E) will only use such application program- 2 ming interface or similar mechanism at the ex- 3 press request of an individual. 4 (2) DENIAL 5 (A) IN GENERAL.—A covered entity may 6 deny access to the application programming 7 interface or similar mechanism required by sub- 8 section (b)(1)(B) if such covered entity has an 9 objective, reasonable belief that the requesting 10 covered entity has failed to meet the require- 11 ments for self-certification under paragraph (1). 12 (B) REVIEW.—In accordance with the pro- 13 cedures established under paragraph (3)(B), a 14 covered entity the request of which is denied 15 under subparagraph (A) may petition the Di- 16 rector for review of the denial. If the Director 17 finds that such denial is unreasonable, the Di- 18 rector may impose a penalty, to be established 19 in such procedures, on the covered entity that 20 denied the request. 21 (3) 22 DURES.—The 23 AND REVIEW PROCE- Director shall establish— certify under paragraph (1); and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) 12:16 Oct 29, 2019 CERTIFICATION (A) procedures for a covered entity to self- 24 VerDate Mar 15 2010 OF ACCESS.— Jkt 000000 (739203 28) PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 30 1 (B) procedures for the review of petitions 2 under paragraph (2)(B), including penalties for 3 unreasonable denials. 4 (d) SMALL BUSINESSES EXCLUDED.—This section 5 does not apply to a small business. 6 (e) DEFINITIONS.—In this section: 7 (1) PORTABLE term ‘‘portable 8 category’’ means a category of products and services 9 established 10 (a)(1)(A)— by the Director under subsection 11 (A) for which the sum obtained by adding 12 the number of users or estimated users of each 13 product or service in such category is greater 14 than 10,000,000; and 15 (B) that— 16 (i) has an estimated Herfindahl- 17 Hirschman Index of 2,000 or greater; 18 (ii) the total number of covered enti- 19 ties offering products and services in such 20 category is 3 or less; or 21 (iii) the Director otherwise determines 22 that a category would benefit from encour- 23 aging increased competition. 24 (2) USERS.—The term ‘‘users’’ means, with re- 25 spect to a product or service, the monthly active g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 CATEGORY.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 31 1 users, subscribers, or customers (or a reasonable 2 proxy or substitute therefor determined by the Di- 3 rector) of such product or service. 4 SEC. 105. RIGHT TO HUMAN REVIEW OF AUTOMATED DECI- 5 SIONS. 6 For any decision by a covered entity based solely on 7 automated processing of personal information of an indi8 vidual, if such processing increases reasonably foreseeable 9 significant privacy harms for such individual, such covered 10 entity shall— 11 (1) inform such individual of what personal in- 12 formation is or may be used for such decision; 13 (2) make available a reasonable mechanism by 14 which such individual may request human review of 15 such decision; and 16 (3) if such individual requests such a review, 17 conduct such review within a reasonable amount of 18 time after such request. 19 SEC. 106. RIGHT TO INDIVIDUAL AUTONOMY. 20 (a) IN GENERAL.—A covered entity shall not collect, 21 process, maintain, or disclose an individual’s personal in22 formation to: 23 (1) create, improve upon, or maintain; 24 (2) process with; or 25 (3) otherwise link an individual with; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 32 1 an algorithm, model, or other means designed for behav2 ioral personalization, without the affirmative express con3 sent of that individual. 4 (b) CONSENT.—A covered entity must obtain express 5 affirmative consent from an individual before it may pro6 vide a behaviorally personalized version of a product or 7 service. Where consent is denied, a covered entity must 8 provide the product or service without behavioral personal9 ization. 10 11 (c) EXCEPTIONS PROVIDING PRODUCT OR SERV- ICE.— 12 (1) Where the offering of a substantially similar 13 product or service without behavioral personalization 14 is infeasible, a covered entity shall provide, to the 15 greatest extent feasible, a core aspect or part of the 16 product or service that can be offered without behav- 17 ioral personalization. 18 (2) Where no core aspect or part of the product 19 or service can function in a substantially similar 20 function without behavioral personalization, a cov- 21 ered entity may deny providing an individual use of 22 such product or service if such individual does not 23 consent to behavioral personalization as required in 24 subsection (a). g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 TO 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 33 1 (d) EXCEPTION TO BEHAVIORAL PROCESSING.—Not- 2 withstanding subsections (a) and (b), a covered entity may 3 create or process using behavioral personalization algo4 rithms, models, or other mechanisms for the purpose of 5 increasing the usability of the product or service provided 6 by a covered entity that— 7 (1) are built using aggregated personal infor- 8 mation that is representative of all the personal in- 9 formation the covered entity maintains; and 10 (2) have an output that is both uniform across 11 the individuals that use the product or service and 12 independent of a specific individual’s inherent or be- 13 havioral characteristics. 14 (e) USABILITY.—The term ‘‘usability’’ as used in 15 subsection (d) does not include optimizations or other al16 terations to the product or service that are made with the 17 primary purpose of increasing the amount of time an indi18 vidual engages with or uses the product or service, unless 19 such increase benefits the individual 20 (f) SMALL BUSINESSES EXCLUDED.—This section 21 does not apply to a small business. 22 SEC. 107. RIGHT TO BE INFORMED. 23 A covered entity that collects personal information of 24 an individual with whom such covered entity does not have 25 an existing relationship (as of the time of the collection), g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 34 1 if such personal information includes contact information, 2 shall notify such individual within 30 days, in writing if 3 possible and at no charge to the individual, that such cov4 ered entity has collected the personal information of such 5 individual. 6 SEC. 108. RIGHT TO IMPERMANENCE. 7 8 (a) LIMITATION ON MAINTENANCE OF PERSONAL INFORMATION.—A covered entity shall not maintain per- 9 sonal information for more time than expressly consented 10 to by an individual whose personal information is being 11 maintained. 12 (b) CONSENT.—A covered entity must obtain express 13 affirmative consent from an individual before maintaining 14 the personal information of such individual for any dura15 tion. Such consent may be obtained for categories of per16 sonal information and shall give an individual options to 17 affirmatively choose granting a covered entity consent for 18 various durations, at least including— 19 (1) for no longer than needed to complete the 20 specific request or transaction (including a reason- 21 able estimate of such duration by the covered enti- 22 ty); 23 (2) until consent is revoked; and 24 (3) one or more additional durations based on 25 reasonable expectations and norms for the mainte- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 35 1 nance of the category of personal information being 2 maintained. 3 (c) EXCEPTION FOR IMPLIED CONSENT.—Where the 4 long-term maintenance of personal information is, on its 5 face, obvious and a core feature of the product or service 6 at the request of the individual, and the personal informa7 tion is maintained only to provide such product or service, 8 subsections (a) and (b) shall not apply. 9 SEC. 109. EXEMPTIONS, EXCEPTIONS, FEES, TIMELINES, 10 AND RULES OF CONSTRUCTION FOR RIGHTS 11 UNDER THIS TITLE. 12 (a) EXEMPTIONS FOR PERSONAL INFORMATION FOR 13 PARTICULAR PURPOSES.— 14 (1) IN title does not apply 15 with respect to personal information that is col- 16 lected, processed, maintained, or disclosed for any of 17 the following purposes (or a combination of such 18 purposes), where a covered entity has technical safe- 19 guards and business processes that limit the collec- 20 tion, processing, maintaining, or disclosure of such 21 personal information to the following purposes: 22 (A) Detecting, responding to, or preventing 23 security incidents or threats. 24 (B) Protecting against malicious, decep- 25 tive, fraudulent, or illegal activity. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—This 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 36 1 (C) Complying with specific law enforce- 2 ment requests or court orders. 3 (D) Protecting a legally recognized privi- 4 lege or other legal right. 5 (E) Protecting public safety. 6 (F) Collection, processing, or maintenance 7 by an employer pursuant to an employer-em- 8 ployee relationship of records about employees 9 or employment status, except— 10 (i) where the information would not 11 be reasonably expected to be collected in 12 the context of an employee’s regular du- 13 ties; or 14 (ii) was disclosed to the employer by 15 a third party. 16 (G) Preventing prospective abuses of a 17 service by an individual whose account has been 18 previously terminated. 19 (H) Routing a communication through a 20 communications network or resolving the loca- 21 tion of a host or client on a communications 22 network. 23 (I) Providing transparency in advertising 24 or origination of user generated content. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 37 1 (2) compliance 2 with this title would require the reidentification of 3 de-identified personal information, and the covered 4 entity does not already maintain the information 5 necessary for such reidentification, the covered enti- 6 ty shall be exempt from such compliance, except for 7 with section 106. 8 (3) DISCLOSURE.—A covered entity relying on 9 an exemption under paragraph (1) with respect to 10 personal information shall disclose in the privacy 11 policy maintained by such entity under section 12 213— 13 (A) the reason for which such information 14 is collected, processed, maintained, or disclosed; 15 and 16 (B) a description of the rights provided by 17 this title that are not available with respect to 18 such personal information by reason of such ex- 19 emption. 20 (b) EXCEPTIONS FOR PARTICULAR REQUESTS.— 21 22 (1) IN covered entity may deny (A) such covered entity cannot confirm the 24 identity of such individual; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) 12:16 Oct 29, 2019 GENERAL.—A the request of an individual under this title if— 23 VerDate Mar 15 2010 REIDENTIFICATION.—Where Jkt 000000 (739203 28) PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 38 1 (B) such covered entity determines that 2 granting the request of such individual would 3 create a legitimate risk to the privacy, security, 4 safety, or other rights of another individual; 5 (C) such covered entity determines that 6 granting the request of such individual would 7 create a legitimate risk to free expression; or 8 (D) the personal information requested to 9 be corrected under section 102 or deleted under 10 section 103— 11 (i) is necessary to the completion of a 12 transaction initiated before such request 13 was made or the performance of a contract 14 entered into before such request was made; 15 (ii) was collected specifically for the 16 completion of such transaction or the per- 17 formance of such contract; and 18 (iii) would undermine the integrity of 19 a legally significant transaction. 20 (2) LIMITATIONS REQUESTS FOR ADDI- 21 TIONAL INFORMATION TO CONFIRM IDENTITY.—A 22 covered entity may not deny a request of an indi- 23 vidual under paragraph (1)(A) on the basis of the 24 refusal of such individual to provide additional per- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 ON 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 39 1 sonal information to such covered entity to confirm 2 the identity of such individual— 3 (A) if the identity of such individual can 4 reasonably be confirmed using personal infor- 5 mation of such individual that such covered en- 6 tity (as of the time of the request) already 7 maintains; or 8 (B) if such individual has an existing rela- 9 tionship (as of the time of the request) with 10 such covered entity, such individual has con- 11 firmed the identity of such individual to such 12 covered entity in the same manner as for other 13 transactions of a similar sensitivity. 14 (c) EXEMPTION FOR SERVICE PROVIDERS.—This 15 title does not apply to a service provider. 16 17 (d) EXEMPTION PUTING.—Except FOR PRIVACY PRESERVING COM- for sections 101, 105, 106, and 109, 18 this title does not apply to personal information secured 19 using privacy preserving computing. 20 (e) TIMELINE FOR COMPLYING WITH A REQUEST.— 21 Without undue delay but not longer than 30 days after 22 the request, a covered that receives a request under this 23 title must— 24 (1) comply with such request; or g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 40 1 (2) inform such individual of the reason for de- 2 nying such request, as allowed under subsections (a) 3 or (b) of this section. 4 (f) FEES PROHIBITED.— 5 (1) IN GENERAL.—Except as provided in para- 6 graph (2), a covered entity may not charge a fee to 7 an individual for a request made under this title. 8 (2) UNFOUNDED OR EXCESSIVE REQUESTS.—If 9 a request under this title is unfounded or excessive, 10 a covered entity may charge a reasonable fee that 11 reflects the estimated administrative costs of com- 12 plying with such request. 13 (3) AGENCY NOTICE.—If a covered entity plans 14 to charge fee under paragraph (2), it must notify 15 the Agency at least 7 days before charging such fee. 16 (4) AGENCY REVIEW.—The Director may reject 17 any fee that a covered entity plans to charge for a 18 request made under this title if the Agency finds— 19 (A) such fee to be unreasonable relative to 20 reasonable administrative costs of complying 21 with a request under this title; or 22 (B) such request is not unfounded or ex- 23 24 cessive. (g) RULES OF CONSTRUCTION.—Nothing in this title 25 shall be construed to require a covered entity to— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 41 1 (1) take an action that would convert informa- 2 tion that is not personal information into personal 3 information; 4 (2) collect or maintain personal information or 5 contents of communication that the covered entity 6 would otherwise not maintain; or 7 (3) maintain personal information or contents 8 of communication longer than the covered entity 9 would otherwise maintain such personal information. 10 (h) REGULATIONS.—The Director shall promulgate 11 regulations to implement this section. 15 TITLE II—REQUIREMENTS FOR COVERED ENTITIES, SERVICE PROVIDERS, AND THIRD PARTIES 16 SEC. 201. MINIMIZATION AND ARTICULATED BASIS FOR 12 13 14 17 COLLECTION, 18 NANCE. 19 PROCESSING, AND MAINTE- (a) ARTICULATED BASIS.—A covered entity shall 20 have a reasonable, articulated basis for the collection, 21 processing, disclosure, and maintenance of personal infor22 mation that takes into account the reasonable business 23 needs of the covered entity and minimum amount of per24 sonal information necessary for providing the service, bal25 anced with the intrusion on the privacy of, potential pri- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 42 1 vacy harms to, and reasonable expectations of individuals 2 to whom the personal information relates. 3 (b) MINIMIZATION OF COLLECTION, PROCESSING, 4 DISCLOSURE, AND MAINTENANCE.— 5 (1) COLLECTION.—A covered entity may not 6 collect more personal information than is reasonably 7 needed to provide a product or service that an indi- 8 vidual has requested. 9 (2) PROCESSING.—A covered entity may not 10 process personal information for a purpose other 11 than the purpose for which such information was 12 originally collected from the individual or in the case 13 of a service provider, a purpose other than that 14 which is in accordance with the directions of a cov- 15 ered entity. 16 (3) DISCLOSURE.—A covered entity may not 17 disclose personal information for a purpose other 18 than the purpose for which such information was 19 originally collected from the individual or in the case 20 of a service provider, a purpose other than that 21 which is in accordance with the directions of a cov- 22 ered entity. 23 (4) MAINTENANCE.—A covered entity may not 24 maintain personal information once such information 25 is no longer needed for the purpose for which such g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 43 1 information was originally collected from the indi- 2 vidual or in the case of a service provider, a purpose 3 other than that which is in accordance with the di- 4 rections of a covered entity. 5 (c) ANCILLARY COLLECTION, PROCESSING, DISCLO- 6 SURE, AND MAINTENANCE.—Notwithstanding subsection 7 (b), a covered entity may engage in collection, processing, 8 disclosure, or maintenance of personal information beyond 9 limitations under subsection (b) only if such covered entity 10 complies with this subsection. 11 (1) NO 12 covered entity may engage in collection, processing, 13 or maintenance of personal information without ad- 14 ditional notice or consent if the purpose for such col- 15 lection, processing, or maintenance is substantially 16 similar to the type of personal information and pur- 17 pose for which such personal information was origi- 18 nally collected and such ancillary collection, proc- 19 essing, or maintenance will not result in additional 20 or increased privacy harms. 21 (2) NOTICE REQUIRED.—A covered entity shall 22 provide notice of ancillary collection, processing, dis- 23 closure or maintenance of personal information in 24 the case of one, but not more than one, of the fol- 25 lowing: g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 NOTICE OR CONSENT REQUIRED.—A 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 44 1 (A) Such ancillary collection, processing, 2 disclosure, or maintenance may result in addi- 3 tional or increased privacy harms (but not in- 4 creased significant privacy harms), and is sub- 5 stantially similar to the purpose for which such 6 personal information was originally collected 7 (B) The purpose for such ancillary collec- 8 tion, processing, disclosure, or maintenance is 9 not substantially similar to the purpose for 10 which such personal information was originally 11 collected, but will not result in additional or in- 12 creased privacy harms. 13 (C) Such ancillary collection, processing, 14 disclosure, or maintenance may result in addi- 15 tional or increased privacy harms (but not in- 16 creased significant privacy harms) and the pur- 17 pose is not substantially similar to the purpose 18 for which such personal information was origi- 19 nally collected, so long as, the personal informa- 20 tion is secured using privacy preserving com- 21 puting. 22 (3) NOTICE 23 scenarios not covered under paragraphs (1) or (2), 24 and notwithstanding section 212(b)(2) and (3), a 25 covered entity shall provide notice of and obtain con- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 AND CONSENT REQUIRED.—For 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 45 1 sent for ancillary collection, processing, disclosure or 2 maintenance of personal information. 3 (d) SUBSTITUTION.—In cases in which personal in- 4 formation can be replaced with artificial personal informa5 tion, personal information that has been de-identified, or 6 the random personal information of a one or more individ7 uals without substantially reducing the utility of the data 8 or requiring an unreasonable amount of effort, such a re9 placement shall take place. 10 SEC. 202. MINIMIZATION AND RECORDS OF ACCESS BY EM- 11 12 PLOYEES AND CONTRACTORS. (a) MINIMIZATION.—A covered entity shall restrict 13 access to personal information and contents of commu14 nications by the employees or contractors of such covered 15 entity based on an articulated balance between the poten16 tial for privacy harm, reasonable expectations of individ17 uals to whom the personal information relates, and reason18 able business needs. 19 (b) RECORDS OF ACCESS.— 20 (1) IN covered entity shall main- 21 tain records identifying each instance in which an 22 employee or a contractor of such covered entity ac- 23 cesses personal information or contents of commu- 24 nications if disclosure of, or a data breach or data 25 sharing abuse involving, such personal information g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—A 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 46 1 or contents may foreseeably result in increased pri- 2 vacy harms. 3 (2) INFORMATION REQUIRED.—The records re- 4 quired by paragraph (1) shall include the following: 5 (A) A unique identifier for the employee or 6 contractor accessing personal information or 7 contents of communications. 8 (B) The date and time of access. 9 (C) The fields of information accessed. 10 (D) The individuals whose personal infor- 11 mation was accessed or the contents of whose 12 communications were accessed. 13 (3) SMALL 14 15 BUSINESSES EXCLUDED.—This sub- section does not apply to a small business. SEC. 203. PROHIBITION ON THE COLLECTION OR MAINTE- 16 NANCE OF PERSONAL INFORMATION. 17 A covered entity may not collect or maintain personal 18 information using a channel of interstate commerce unless 19 such covered entity is in compliance with all requirements 20 of this Act. 21 SEC. 204. PROHIBITIONS ON THE DISCLOSURE OF PER- 22 23 SONAL INFORMATION. (a) CONSENT FOR DISCLOSURE REQUIRED.— 24 25 (1) IN 12:16 Oct 29, 2019 covered entity may not in- tentionally disclose personal information unless the g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—A Jkt 000000 (739203 28) PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 47 1 covered entity obtains consent of the individual 2 whose personal information is being disclosed for 3 each category of third party to which such personal 4 information will be disclosed. Such covered entity 5 must also provide such individual with notice of— 6 (A) each category of third party; 7 (B) the personal information to be dis- 8 closed; and 9 (C) a concise and clear description of the 10 business or commercial purpose for such disclo- 11 sure. 12 (2) ADDITIONAL 13 PERSONAL INFORMATION.— 14 (A) IN GENERAL.—A covered entity may 15 not intentionally sell personal information un- 16 less the covered entity— 17 (i) obtains the consent required by 18 paragraph (1) for each individual disclo- 19 sure of such person information; and 20 (ii) and provides the individual to 21 whom such personal information relates 22 with the identity of the specific third party 23 to which such personal information will be 24 disclosed. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 REQUIREMENTS FOR SALE OF 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 48 1 (B) 2 graph (A) shall not apply to a covered entity in 3 a case in which an individual is directing the 4 covered entity to disclose the personal informa- 5 tion of such individual for the sole purpose of 6 procuring goods or services, or offers for goods 7 or services, for such individual, if there is a rea- 8 sonable mechanism for the individual to with- 9 draw consent. 10 (3) REQUIREMENT 11 POSE OF COLLECTION.—A 12 intentionally disclose personal information without 13 including the purpose for which the personal infor- 14 mation was originally collected. 15 (4) EXCEPTION TO INCLUDE ORIGINAL PUR- FOR covered entity may not PRIVACY PRESERVING 16 COMPUTING.—Notwithstanding 17 sent is not required for a disclosure (not including 18 sale) of personal information secured using privacy 19 preserving computing. 20 (5) EXCEPTION paragraph (1), con- FOR DE-IDENTIFIED PERSONAL 21 INFORMATION.—Notwithstanding 22 consent is not required for a disclosure (not includ- 23 ing sale) of de-identified personal information where 24 the disclosed personal information is limited to the 25 narrowest possible scope likely to yield the intended g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 SERVICES.—Subpara- DISCLOSURE 12:16 Oct 29, 2019 Jkt 000000 paragraph (1), (739203 28) PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 49 1 benefit and contractual obligations are in place that 2 prohibit— 3 (A) re-identification of the disclosed per- 4 sonal information; and 5 (B) the processing of additional personal 6 information in combination with the disclosed 7 personal information that would allow for the 8 reidentification of the disclosed personal infor- 9 mation. 10 (b) DISCLOSURE FOR ADVERTISING OR MARKETING 11 PURPOSES.— 12 (1) IN covered entity may not in- 13 tentionally disclose for advertising or marketing pur- 14 poses a unique identifier or any other personal infor- 15 mation that would allow the disclosure of such infor- 16 mation to be linked to past or future disclosures of 17 information relating to the same individual or device. 18 (2) TREATMENT OF CERTAIN TYPES OF INFOR- 19 MATION.—A 20 purposes may not be treated as violating subpara- 21 graph (1) by reason of including any or all of the 22 following: disclosure for advertising or marketing 23 (A) Internet Protocol addresses truncated 24 to no more than the first 24 bits for Internet 25 Protocol version 4 and the first 48 bits for g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—A 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 50 1 Internet Protocol version 6, or for a successor 2 protocol truncated to limit the precision of the 3 identifier to a network address of the internet 4 access provider. 5 (B) Geolocation information truncated to 6 allow no more than the equivalent of two dec- 7 imal degrees of precision at the equator or 8 prime meridian, or an equivalent precision in 9 another geolocation standard. 10 (C) A general description of a device, 11 browser, or operating system, or any combina- 12 tion thereof. 13 (D) An identifier that is unique for each 14 disclosure. 15 SEC. 205. DISCLOSURE TO ENTITIES NOT SUBJECT TO 16 UNITED STATES JURISDICTION OR NOT COM- 17 PLIANT WITH THIS ACT. 18 (a) PROHIBITION.—A covered entity may not inten- 19 tionally disclose personal information to any entity that— 20 21 (1) is not subject to the jurisdiction of the United States; or 22 (2) is not in compliance with all requirements 23 of this Act. 24 (b) EXCEPTION.—Notwithstanding subsection (a), a 25 covered entity may disclose personal information where g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 51 1 that personal information is limited to an identifier cre2 ated primarily for the purpose of sending or receiving elec3 tronic communications and the sole purpose of the disclo4 sure is to send or receive an electronic communication at 5 the request of the individual whose personal information 6 is being disclosed. 7 (c) DISCLOSURE SAFE HARBORS.—Notwithstanding 8 subsection (a), a covered entity may disclose personal in9 formation to another covered entity (the receiving covered 10 entity) that is not subject to the jurisdiction of the United 11 States if either— 12 (1) the receiving covered entity has entered into 13 an agreement, as described in subsection (e), with 14 the Agency, and— 15 (A) the covered entity has a reasonable be- 16 lief that the receiving covered entity is suffi- 17 ciently solvent to compensate victims or pay 18 fines for violations of this Act; 19 (B) a contract between the covered entity 20 and receiving covered entity requires that the 21 receiving covered entity complies with this Act, 22 and the covered entity has reason to believe the 23 receiving covered entity is compliant with this 24 Act; and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 52 1 (C) a contract between the covered entity 2 and the receiving covered entity prohibits the 3 receiving covered entity from using the dis- 4 closed personal information for any purpose 5 other than provided in the contract; or 6 (2) the covered entity has— 7 (A) entered into an agreement with the re- 8 ceiving covered entity that— 9 (i) requires the receiving covered enti- 10 ty to comply with this Act; 11 (ii) prohibits the receiving covered en- 12 tity from using the disclosed personal in- 13 formation for any purpose other than pro- 14 vided in the contract; 15 (iii) requires the receiving covered en- 16 tity to indemnify the covered entity against 17 violations of this Act committed by the re- 18 ceiving covered entity for any amount the 19 covered entity is unable to pay of a judg- 20 ment for such violation; 21 (iv) grants the covered entity the au- 22 thority to audit, including physical access 23 to electronic devices and data, the receiving 24 covered entity’s compliance with this Act 25 and the contract; and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 53 1 (v) requires the receiving covered enti- 2 ty to assist the covered entity in respond- 3 ing to and complying with any court or- 4 ders, Agency orders, or the exercising of 5 an individual’s rights under this Act. 6 (B) actual knowledge that the receiving 7 covered entity is in compliance with this Act 8 and not using personal information contrary to 9 their agreement; 10 (C) actual knowledge that the receiving 11 covered entity is sufficiently solvent to com- 12 pensate victims or pay fines for violations of 13 this Act; 14 (D) an auditing and compliance program 15 to ensure the receiving covered entity’s contin- 16 ued compliance with this Act and contract 17 terms; 18 (E) filed with the Agency the terms of said 19 contract, proof of its actual knowledge of the 20 receiving covered entity’s compliance with this 21 Act and contract terms, and documents detail- 22 ing its auditing and compliance program for ap- 23 proval and publication by the Agency; and 24 (F) the covered entity has entered into an 25 agreement with the Agency where it agrees to g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 54 1 accept, respond to, or comply with a court 2 order, agency order, or request by an individual 3 regarding actions taken by the receiving covered 4 entity with respect to the data it has disclosed. 5 (d) For the purposes of subsection (c)(2), the covered 6 entity shall be jointly liable for a violation of this Act by 7 the receiving covered entity regarding the data the covered 8 entity disclosed, except where the covered entity was the 9 first to notify the Agency of the violation, in which case, 10 it shall be severally liable. Where the covered entity should 11 reasonably have known of a violation of this Act by the 12 receiving covered entity and fails to disclose the violation 13 to the Agency, each day of continuance of the failure to 14 report such violation shall be treated as a separate viola15 tion. 16 (e) AGENCY AGREEMENTS.—Upon the request of a 17 covered entity not subject to the jurisdiction of the United 18 States, the Agency shall enter into an agreement with the 19 covered entity that includes, but is not limited to, the fol20 lowing conditions: 21 (1) The principle place of business for the cov- 22 ered entity must be in a country that allows for the 23 domestication of a United States court decision for 24 civil fines payable to a government entity and in- 25 junctive relief. Where a foreign court refuses to en- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 55 1 force a United States court decision under this Act, 2 the agreement, and all other agreements with cov- 3 ered entities with a principle place of business in the 4 same jurisdiction, shall be void. 5 6 (2) The covered entity agrees to comply with this Act. 7 (3) The covered entity agrees to be subject to 8 this Act with choice of venue being a United States 9 court. 10 (4) The covered entity agrees to comply with 11 Agency investigative requests or orders, and United 12 States court orders or decisions under this Act. 13 (5) The covered entity consents to United 14 States Federal court personal jurisdiction for the 15 sole purpose of enforcing this Act. 16 (6) Where enforcement of the decision requires 17 the use of a foreign court, the covered entity agrees 18 to pay reasonable attorney fees necessary to enforce 19 the judgment. 20 (7) A default judgment, failure to comply with 21 Agency investigative requests or orders, or failure to 22 comply with United States court orders or decisions 23 shall result in the immediate termination of the 24 agreement. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 56 1 (f) RULE 2 IZATION.—Nothing OF CONSTRUCTION AGAINST DATA LOCALin this section shall be construed to 3 require the localization of processing or maintaining per4 sonal information by a covered entity to within the United 5 State, or limit internal disclosure of personal information 6 within a covered entity or to subsidiary or corporate affil7 iate of such covered entity, regardless of the country in 8 which the covered entity will process, disclose, or maintain 9 that personal information. 10 SEC. 206. PROHIBITION ON REIDENTIFICATION. 11 (a) IN GENERAL.—Except as required under title I, 12 a covered entity shall not use personal information col13 lected from an individual, acquired from a third party, or 14 acquired from a publicly available information to reiden15 tify an individual from de-identified information. 16 (b) THIRD PARTY PROHIBITION.—A covered entity 17 that discloses de-identified information to a third party 18 shall prohibit such third party from reidentifying an indi19 vidual using such de-identified information. 20 (c) EXCEPTION.—Subsection (a) shall not apply to 21 qualified research entities, as determined by the Director, 22 conducting research not for commercial purposes. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00056 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 57 1 SEC. 207. RESTRICTIONS ON COLLECTION, PROCESSING 2 AND DISCLOSURE OF CONTENTS OF COMMU- 3 NICATIONS. 4 (a) IN GENERAL.—A covered entity may not collect, 5 process, maintain, or disclose the contents of any commu6 nication, regardless of whether the sender or intended re7 cipient of the communication is an individual, other per8 son, or an electronic device, for any purpose other than— 9 (1) transmission or display of the communica- 10 tion to any intended recipient or the original sender, 11 or maintenance of such communications for such 12 purposes; 13 14 (2) detecting, responding to, or preventing security incidents or threats; 15 16 (3) providing services to assist in the drafting or creation of the content of a communication; 17 (4) processing expressly requested by the sender 18 or intended recipient, if the sender or intended re- 19 cipient can terminate such processing using a rea- 20 sonable mechanism; 21 (5) a disclosure otherwise required by law; 22 (6) the filtering of a communication where pri- 23 mary purpose of the communication is the commer- 24 cial advertisement or promotion of a commercial 25 product or service; or g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 58 1 (7) detecting or enforcing an abuse or violation 2 of the service’s terms of service that would result in 3 either a temporary or permanent ban from using the 4 service. 5 (b) INTENDED RECIPIENT.—A covered entity is not 6 considered an intended recipient of a communication, or 7 any communication used in the creation of the content of 8 said communication, where— 9 (1) at least one intended recipient is a natural 10 person other than an employee or contractor of the 11 covered entity; 12 13 (2) at least one intended recipient is a person other than the covered entity; or 14 (3) a purpose of the covered entity’s service is 15 to maintain, at the direction of the sender, the con- 16 tent of said communication for more than a transi- 17 tory period. 18 (c) SENDER.—The sender of a communication is the 19 person for whom the communication, and its content, is 20 disclosed at the direction of and on behalf of. 21 (1) Where the sender is a natural person, they 22 shall be the sender of the entire content of the com- 23 munication, regardless of the original author of any 24 portion of the content. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 59 1 (2) Otherwise, a sender shall be the sender of 2 only the content it was an original author of, or con- 3 tent it received as an intended recipient. 4 (d) EXCEPTION 5 NICATIONS.—Subsection PUBLICLY AVAILABLE COMMU- FOR (a) shall not apply where the con- 6 tents of communication that are made publicly accessible 7 by the sender without restrictions on accessibility other 8 than the general authorization to access the services used 9 to make the information accessible. 10 (e) ENCRYPTION PROTECTION.—A covered entity 11 shall not— 12 (1) prohibit or prevent a person from 13 encrypting or otherwise rendering unintelligible the 14 content of a communication using a means that pre- 15 vents the covered entity from being able to decrypt 16 or otherwise render intelligible said content; and 17 (2) require or cause a person to disclose or cir- 18 cumvent the means described in paragraph (1) to 19 the covered entity that would allow it to render the 20 content intelligible. 21 (f) SERVICE PROVIDERS SAFE HARBOR.—A service 22 provider shall not be held liable for a violation of this sec23 tion if such service provider is acting at the direction of 24 and on behalf of a covered entity and has a reasonable g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00059 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 60 1 belief that the covered entity’s directions are in compliance 2 with this section. 3 SEC. 208. PROHIBITION ON DISCRIMINATORY PROCESSING. 4 5 (a) DISCRIMINATION TIES.—A IN ECONOMIC OPPORTUNI- covered entity shall not process personal infor- 6 mation or contents of communication for advertising, mar7 keting, soliciting, offering, selling, leasing, licensing, rent8 ing, or otherwise commercially contracting for employ9 ment, finance, healthcare, credit, insurance, housing, or 10 education opportunities in a manner that discriminates 11 against or otherwise makes opportunities unavailable on 12 the basis of an individual’s protected class status. 13 (b) PUBLIC ACCOMMODATIONS.—A covered entity 14 shall not process personal information in a manner that 15 segregates, discriminates in, or otherwise makes unavail16 able the goods, services, facilities, privileges, advantages, 17 or accommodations of any place of public accommodation 18 on the basis of a person’s or a group’s protected class sta19 tus. 20 (c) The Director shall promulgate regulations to im- 21 plement this section. 22 SEC. 209. RESTRICTIONS ON GENETIC INFORMATION. 23 (a) IN GENERAL.—A covered entity may not collect, 24 process, maintain, or disclose genetic information for any 25 purpose other than— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00060 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 61 1 (1) providing medical treatment or testing to 2 the individual whose genetic information is being col- 3 lected, processed, maintained, or disclosed; 4 (2) research and services related to medical, 5 historical, or population uses of genetic information, 6 if, in the case of disclosure of genetic information— 7 (A) such genetic information is only dis- 8 closed to qualified research entities, as deter- 9 mined by the Director; 10 (B) additional personal information dis- 11 closed with such genetic information is limited 12 to the narrowest possible scope likely to yield 13 the intended benefit; and 14 (C) the covered entity limits, through con- 15 tractual obligations, additional types of personal 16 information that can be processed with the dis- 17 closed genetic information and personal infor- 18 mation. 19 (3) a purpose specified by the Director by regu- 20 lation, taking into account the potential privacy 21 harms and potential benefits of such collection, proc- 22 essing, maintenance, or disclosure; or 23 24 (4) to comply with a Federal criminal investigation request or order. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 62 1 (b) GENETIC INFORMATION DEFINED.—In this sec- 2 tion, the term ‘‘genetic information’’ has the meaning 3 given such term in section 201 of the Genetic Information 4 Nondiscrimination Act of 2008 (42 U.S.C. 2000ff). 5 (c) SERVICE PROVIDERS SAFE HARBOR.—A service 6 provider shall not be held liable for a violation of this sec7 tion if such service provider is acting at the direction of 8 and on behalf of a covered entity and has a reasonable 9 belief that is the covered entity’s directions are in compli10 ance with this section. 11 SEC. 210. REQUIREMENTS FOR NOTICE AND CONSENT 12 PROCESSES AND PRIVACY POLICIES. 13 (a) MINIMUM THRESHOLD.—The Director shall es- 14 tablish a minimum threshold that a covered entity must 15 meet for the percentage of individuals who read and un16 derstand a notice or consent process or privacy policy re17 quired by this Act. In establishing such minimum thresh18 olds, the Director shall take into account expectations of 19 individuals, potential privacy harms, and individuals’ 20 awareness of privacy harms. 21 (b) CONSENT REVOCATION.—A covered entity shall 22 make available a reasonable mechanism by which an indi23 vidual may revoke consent for any consent given under 24 this Act. 25 (c) SAFE HARBOR.— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 63 1 (1) APPROVAL Director 2 shall develop procedures for analyzing and approving 3 data submitted by a covered entity to establish that 4 a notice and consent process or privacy policy of 5 such covered entity meets the threshold established 6 under subsection (a). 7 (2) PRESUMPTION.—If a covered entity submits 8 testing data to and receives an approval from the 9 Director under paragraph (1) establishing that a no- 10 tice or consent process or privacy policy of such cov- 11 ered entity meets the threshold established under 12 subsection (a), such notice or consent process or pri- 13 vacy policy shall be presumed to have met such 14 threshold. Such presumption may be rebutted by 15 clear and convincing evidence. 16 (3) PUBLIC AVAILABILITY OF APPROVED PROC- 17 ESSES AND POLICIES AND ASSOCIATED TESTING 18 DATA.—The 19 online the notice and consent processes and privacy 20 policies and associated testing data that the Director 21 approves under paragraph (1). 22 Director shall make publicly available (4) SMALL BUSINESS ADOPTION OF NOTICE OR 23 CONSENT PROCESS OF ANOTHER COVERED ENTI- 24 TY.— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 PROCEDURES.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00063 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 64 1 a small business 2 adopts a notice or consent process of another 3 covered entity that collects, processes, main- 4 tains, or discloses personal information in sub- 5 stantially the same way as such small business, 6 if the process of such other covered entity has 7 been approved under paragraph (1), the process 8 of such small business shall receive the pre- 9 sumption under paragraph (2). 10 (B) ABILITY TO FREELY USE APPROVED 11 PROCESS.—A 12 consent process is approved under paragraph 13 (1) shall permit a small business to freely use 14 such process, or a derivative thereof, as de- 15 scribed in subparagraph (A). 16 (C) NO covered entity whose notice or PUBLISHED PROCESS.—In the case 17 of a small business for which there is no ap- 18 proved notice or consent process published 19 under paragraph (3) of a covered entity that 20 collects, processes, maintains, or discloses per- 21 sonal information in substantially the same way 22 as such small business, any requirement under 23 this title for a notice or consent process to be 24 objectively shown to meet the threshold estab- 25 lished by the Director under subsection (a) g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—If (A) IN 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 65 1 shall not apply to such small business. Nothing 2 in the preceding sentence exempts a small busi- 3 ness from the requirement to use such notice or 4 consent process or that such process be concise 5 and clear. 6 (D) INAPPLICABILITY 7 ICY.—Paragraph 8 spect to a privacy policy. 9 (5) MINOR TO PRIVACY POL- (4) does not apply with re- CHANGES.—A covered entity may 10 make minor changes in a notice or consent process 11 or privacy policy approved under paragraph (1) and 12 retain the presumption under paragraph (2) for such 13 process or policy without retesting or resubmission 14 of testing data to the Director. 15 SEC. 211. PROHIBITION ON DECEPTIVE NOTICE AND CON- 16 SENT PROCESSES AND PRIVACY POLICIES. 17 In providing notice, obtaining consent, or maintaining 18 a privacy policy as required by this title, a covered entity 19 may not intentionally take any action that substantially 20 impairs, obscures, or subverts the ability of an individual 21 to— 22 23 (1) understand the contents of such notice or such privacy policy; 24 25 (2) understand the process for granting such consent; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 66 1 (3) make a decision regarding whether to grant 2 or withdraw such consent; or 3 4 (4) act on any such decision. SEC. 212. NOTICE AND CONSENT REQUIRED. 5 (a) NOTICE.—A covered entity shall provide an indi- 6 vidual with notice of the personal information such covered 7 entity collects, processes, maintains, and discloses through 8 a process that is concise and clear and can be objectively 9 shown to meet the threshold established by the Director 10 under section 210(a). 11 (b) CONSENT.— 12 (1) EXPRESS as 13 provided in paragraphs (2) and (3), a covered entity 14 may not collect from an individual personal informa- 15 tion that creates or increases the risk of foreseeable 16 privacy harms, or process or maintain any such per- 17 sonal information collected from an individual, un- 18 less such entity obtains the express consent of such 19 individual to the collection, processing, or mainte- 20 nance (or any combination thereof) of such informa- 21 tion through a process that is concise and clear and 22 can be objectively shown to meet the threshold es- 23 tablished by the Director under section 210(a). 24 25 (2) EXCEPTION 12:16 Oct 29, 2019 FOR IMPLIED CONSENT.—Not- withstanding paragraph (1), express consent is not g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 CONSENT REQUIRED.—Except Jkt 000000 (739203 28) PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 67 1 required for collection, processing, or maintenance of 2 personal information if the collection, processing, or 3 maintenance is, on its face, obvious and necessary to 4 provide a service at the request of the individual and 5 the personal information is collected, processed, or 6 maintained only for such request. Nothing in this 7 paragraph shall be construed to exempt the covered 8 entity from the requirement of subsection (a) to pro- 9 vide notice to such individual with respect to such 10 collection, processing, or maintenance. 11 (3) EXEMPTION FOR PRIVACY PRESERVING 12 COMPUTING.—Notwithstanding 13 cept with regard to consent for purposes of section 14 106, express consent is not required for collection, 15 processing, or maintenance of personal information 16 secured using privacy preserving computing. Nothing 17 in this paragraph shall be construed to exempt the 18 covered entity from the requirement of subsection 19 (a) to provide notice to such individual with respect 20 to such collection, processing, or maintenance. 21 (c) SERVICE PROVIDERS EXCLUDED.—This section paragraph (1), ex- 22 does not apply to a service provider if such service provider 23 has a reasonable belief that a covered entity for which it 24 processes, maintains, or discloses personal information is 25 in compliance with this section. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00067 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 68 1 SEC. 213. PRIVACY POLICY. 2 (a) POLICY REQUIRED.—A covered entity shall main- 3 tain a privacy policy relating to the practices of such entity 4 regarding the collection, processing, maintenance, and dis5 closure of personal information. 6 (b) CONTENTS.—The privacy policy required by sub- 7 section (a) shall contain the following: 8 (1) A general description of the practices of the 9 covered entity regarding the collection, processing, 10 maintenance, and disclosure of personal information. 11 (2) A description of how individuals may exer- 12 cise the rights provided by title I. 13 14 (3) A clear and concise summary of the following: 15 (A) The categories of personal information 16 collected or otherwise obtained by the covered 17 entity. 18 (B) The business or commercial purposes 19 of the covered entity for collecting, processing, 20 maintaining, or disclosing personal information. 21 (C) The categories and a list of third par- 22 ties to which the covered entity discloses per- 23 sonal information. 24 (4) A description of the personal information 25 that the covered entity maintains that the covered g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00068 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 69 1 entity does not collect from individuals and how the 2 covered entity obtains such personal information. 3 4 (5) A list of the third parties to which the covered entity has disclosed personal information. 5 (6) A list of the third parties from which the 6 covered entity has obtained personal information at 7 any time on or after the effective date specified in 8 section 4(a). 9 (7) The articulated basis for the collection, 10 processing, disclosure and maintenance of personal 11 information, as required under section 201(a). 12 (c) EXEMPTION FOR PERSONAL INFORMATION FOR 13 PARTICULAR PURPOSES.—The privacy policy required by 14 subsection (a) is not required to contain information relat15 ing to personal information that is collected, processed, 16 maintained, or disclosed exclusively for any of the pur17 poses described in paragraph (1) of section 109(a) (or a 18 combination of such purposes), except as provided in para19 graph (2) of such section. 20 (d) AVAILABILITY OF PRIVACY POLICY.— 21 22 (1) FORM privacy policy required by subsection (a) shall be— 23 (A) clear and in plain language; and 24 (B) made publicly available in a prominent 25 location on an ongoing basis. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 AND MANNER.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00069 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 70 1 (2) TIMING.—The privacy policy required by 2 subsection (a) shall be made available as required by 3 paragraph (1) before any collection of personal in- 4 formation by the covered entity that occurs after the 5 effective date specified in section 4(a). 6 (e) SMALL BUSINESSES EXCLUDED.—Subsections 7 (b)(7) and (d) do not apply to a small business. 8 (f) SERVICE PROVIDERS EXCLUDED.—This section 9 does not apply to a service provider if such service provider 10 has a reasonable belief that a covered entity for which it 11 processes, maintains, or discloses personal information is 12 in compliance with this section. 13 SEC. 214. INFORMATION SECURITY REQUIREMENTS. 14 (a) IN GENERAL.—A covered entity shall establish 15 and implement reasonable information security policies, 16 practices, and procedures for the protection of personal 17 information collected, processed, maintained, or disclosed 18 by such covered entity, taking into consideration— 19 20 (1) the nature, scope, and complexity of the activities engaged in by such covered entity; 21 22 (2) the sensitivity of any personal information at issue; 23 (3) the current state of the art in administra- 24 tive, technical, and physical safeguards for pro- 25 tecting such information; and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00070 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 71 1 (4) the cost of implementing such administra- 2 tive, technical, and physical safeguards. 3 (b) POINT OF CONTACT.—A covered entity shall iden- 4 tify an officer or other individual as the point of contact 5 with responsibility for the management of information se6 curity. 7 8 (c) SPECIFIC POLICIES, PRACTICES, DURES.—The AND PROCE- policies, practices, and procedures required 9 by subsection (a) shall include the following: 10 (1) A written security policy with respect to the 11 collection, processing, maintenance, and disclosure of 12 personal information. Such policy shall be made pub- 13 licly available in a prominent location on an ongoing 14 basis, except that the publicly available version is 15 not required to contain information that would com- 16 promise a purpose described in paragraph (1) of sec- 17 tion 109(a). 18 (2) A process for identifying and assessing rea- 19 sonably foreseeable security vulnerabilities in the 20 system or systems used by such covered entity that 21 contain personal information, which shall include 22 regular 23 breaches involving such system or systems. for vulnerabilities or data 24 (3) A process for taking action designed to 25 mitigate against vulnerabilities identified in the g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 monitoring 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 72 1 process required by paragraph (2), which may in- 2 clude implementing any changes to security practices 3 and the architecture, installation, or implementation 4 of network or operating software, or for regularly 5 testing or otherwise monitoring the effectiveness of 6 the existing safeguards. 7 (4) A process for determining if personal infor- 8 mation is no longer needed and disposing of personal 9 information by shredding, permanently erasing, or 10 otherwise modifying the medium on which such per- 11 sonal information is maintained to make such per- 12 sonal information permanently unreadable or indeci- 13 pherable. 14 (5) A process for overseeing persons who have 15 access to personal information, including through 16 network-connected devices. 17 (6) A process for employee training and super- 18 vision for implementation of the policies, practices, 19 and procedures required by this section. 20 (7) A written plan or protocol for internal and 21 public response in the event of a data breach or data 22 sharing abuse. 23 (d) REGULATIONS.—The Director, in consultation 24 with the National Institute of Standards and Technology, 25 shall promulgate regulations to implement this section. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00072 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 73 1 (e) SMALL BUSINESSES ASSISTANCE.—The Director, 2 in consultation with the National Institute of Standards 3 and Technology, the Small Business Association, and 4 small businesses, shall develop policy templates, toolkits, 5 tip sheets, configuration guidelines for commonly used 6 hardware and software, interactive tools, and other mate7 rials to assist small businesses with complying with this 8 section. 9 SEC. 215. NOTIFICATION OF DATA BREACH OR DATA SHAR- 10 11 ING ABUSE. (a) NOTIFICATION OF AGENCY.— 12 (1) IN the case of a data breach 13 or data sharing abuse with respect to personal infor- 14 mation maintained by a covered entity, such covered 15 entity shall, without undue delay and, if feasible, not 16 later than 72 hours after becoming aware of such 17 data breach or data sharing abuse, notify the Direc- 18 tor of such data breach or data sharing abuse, un- 19 less such data breach or data sharing abuse is un- 20 likely to create or increase foreseeable privacy 21 harms. 22 (2) REASONS FOR DELAY.—If the notification 23 required by paragraph (1) is made more than 72 24 hours after the covered entity becomes aware of the 25 data breach or data sharing abuse, such notification g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—In 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00073 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 74 1 shall be accompanied by a statement of the reasons 2 for the delay. 3 (b) NOTIFICATION OF OTHER COVERED ENTITY.— 4 In the case of a data breach or data sharing abuse with 5 respect to personal information maintained by a covered 6 entity that such covered entity obtained from another cov7 ered entity, the covered entity experiencing such data 8 breach or data sharing abuse shall, without undue delay 9 and, if feasible, not later than 72 hours after becoming 10 aware of such data breach or data sharing abuse, notify 11 such other covered entity of such data breach or data 12 sharing abuse, unless such data breach or data sharing 13 abuse is unlikely to create or increase foreseeable privacy 14 harms. A covered entity receiving notice under this sub15 section of a data breach or data sharing abuse shall notify 16 any other covered entity from which the covered entity re17 ceiving notice obtained personal information involved in 18 such data breach or data sharing abuse, in the same man19 ner as required under the preceding sentence for the cov20 ered entity experiencing such data breach or data sharing 21 abuse. 22 (c) NOTIFICATION OF INDIVIDUALS.— 23 (1) IN the case of a data breach 24 or data sharing abuse with respect to personal infor- 25 mation maintained by a covered entity (or a data g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—In 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 75 1 breach or data sharing abuse about which a covered 2 entity is notified under subsection (b)), if such cov- 3 ered entity has a relationship with an individual 4 whose personal information was involved or poten- 5 tially involved in such data breach or data sharing 6 abuse, such covered entity shall notify such indi- 7 vidual of such data breach or data sharing abuse not 8 later than 14 days after becoming aware of such 9 data breach or data sharing abuse (or, in the case 10 of a data breach or data sharing abuse about which 11 a covered entity is notified under subsection (b), not 12 later than 14 days after being so notified), if such 13 data breach or data sharing abuse creates or in- 14 creases foreseeable privacy harms. 15 (2) MEDIUM covered en- 16 tity shall notify an individual as required by para- 17 graph (1) through— 18 (A) the same medium through which such 19 individual routinely interacts with such covered 20 entity; and 21 (B) one additional medium of notification, 22 if such covered entity has the personal informa- 23 tion necessary to make a notification through 24 such an additional medium without causing ex- 25 cessive financial burden for such covered entity. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 OF NOTIFICATION.—A 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00075 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 76 1 (d) RULE OF CONSTRUCTION.—This section shall not 2 apply to a covered entity if a person uses personal infor3 mation obtained from a data breach or data sharing abuse 4 not involving such covered entity. TITLE III—UNITED STATES DIGITAL PRIVACY AGENCY 5 6 7 SEC. 301. ESTABLISHMENT. 8 (a) AGENCY ESTABLISHED.—There is established an 9 independent agency in the executive branch to be known 10 as the ‘‘United States Digital Privacy Agency’’, which 11 shall implement and enforce this Act. 12 (b) DIRECTOR AND DEPUTY DIRECTOR.— 13 (1) IN is established the po- 14 sition of the Director, who shall serve as the head 15 of the Agency. 16 (2) APPOINTMENT.—Subject to paragraph (3), 17 the Director shall be appointed by the President, by 18 and with the advice and consent of the Senate. 19 (3) QUALIFICATION.—The President shall 20 nominate the Director from among individuals who 21 are citizens of the United States. 22 23 (4) DEPUTY is established (A) be appointed by the Director; and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) 12:16 Oct 29, 2019 DIRECTOR.—There the position of Deputy Director, who shall— 24 VerDate Mar 15 2010 GENERAL.—There Jkt 000000 (739203 28) PO 00000 Frm 00076 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 77 1 (B) serve as acting Director in the absence 2 3 or unavailability of the Director. (c) TERM.— 4 5 (1) IN GENERAL.—The Director shall serve for a term of 5 years. 6 (2) EXPIRATION OF TERM.—An individual may 7 serve as Director after the expiration of the term for 8 which appointed, until a successor has been ap- 9 pointed and qualified. 10 (3) REMOVAL FOR CAUSE.—The President may 11 remove the Director for inefficiency, neglect of duty, 12 or malfeasance in office. 13 (d) SERVICE RESTRICTION.—No Director or Deputy 14 Director may hold any office, position, or employment in 15 any covered entity during the period of service of such per16 son as Director or Deputy Director. 17 (e) OFFICES.—The Director shall establish a prin- 18 cipal office and field offices of the Agency in locations that 19 have high levels of activity by covered entities, as deter20 mined by the Director. 21 (f) COMPENSATION.— 22 (1) IN Director shall be com- 23 pensated at the rate prescribed for level II of the 24 Executive Schedule under section 5313 of title 5, 25 United States Code. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00077 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 78 1 (2) CONFORMING AMENDMENT.—Section 5313 2 of title 5, United States Code, is amended by insert- 3 ing after the item relating to ‘‘Federal Transit Ad- 4 ministrator.’’ the following new item: ‘‘Director of 5 the United States Digital Privacy Agency.’’. 6 SEC. 302. EXECUTIVE AND ADMINISTRATIVE POWERS. 7 (a) POWERS OF THE AGENCY.—The Director is au- 8 thorized to establish the general policies of the Agency 9 with respect to all executive and administrative functions, 10 including— 11 (1) the establishment of rules for conducting 12 the general business of the Agency, in a manner not 13 inconsistent with this Act; 14 (2) to bind the Agency and enter into contracts; 15 (3) directing the establishment and mainte- 16 nance of divisions or other offices within the Agency, 17 in order to carry out the responsibilities of the Agen- 18 cy under this Act, and to satisfy the requirements of 19 other applicable law; 20 (4) to coordinate and oversee the operation of 21 all administrative, enforcement, and research activi- 22 ties of the Agency; 23 (5) to adopt and use a seal; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00078 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 79 1 (6) to determine the character of and the neces- 2 sity for the obligations and expenditures of the 3 Agency; 4 (7) the appointment and supervision of per- 5 sonnel employed by the Agency; 6 (8) the distribution of business among per- 7 sonnel appointed and supervised by the Director and 8 among administrative units of the Agency; 9 (9) the use and expenditure of funds; 10 (10) implementing this Act through rules, or- 11 ders, guidance, interpretations, statements of policy, 12 investigations, and enforcement actions; and 13 (11) performing such other functions as may be 14 authorized or required by law. 15 (b) DELEGATION OF AUTHORITY.—The Director 16 may delegate to any duly authorized employee, representa17 tive, or agent any power vested in the Director or the 18 Agency by law, except that the Director may not delegate 19 the power to appoint the Deputy Director under section 20 301(b)(4)(A). 21 (c) AUTONOMY 22 OMMENDATIONS AND OF AGENCY REGARDING REC- TESTIMONY.—No officer or agency 23 of the United States shall have any authority to require 24 the Director or any other officer of the Agency to submit 25 legislative recommendations, or testimony or comments on g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00079 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 80 1 legislation, to any officer or agency of the United States 2 for approval, comments, or review prior to the submission 3 of such recommendations, testimony, or comments to the 4 Congress, if such recommendations, testimony, or com5 ments to the Congress include a statement indicating that 6 the views expressed therein are those of the Director or 7 such officer, and do not necessarily reflect the views of 8 the President. 9 SEC. 303. RULEMAKING AUTHORITY. 10 The Director may prescribe rules and issue orders 11 and guidance, as may be necessary or appropriate to en12 able the Agency to administer and carry out the purposes 13 and objectives of this Act, and to prevent evasions thereof. 14 SEC. 304. PERSONNEL. 15 (a) APPOINTMENT.— 16 (1) IN Director may fix the 17 number of, and appoint and direct, all employees of 18 the Agency, in accordance with the applicable provi- 19 sions of title 5, United States Code. 20 (2) EMPLOYEES OF THE AGENCY.—The Direc- 21 tor is authorized to employ technologists, designers, 22 attorneys, investigators, economists, and other em- 23 ployees as the Director considers necessary to con- 24 duct the business of the Agency. 25 (b) AGENCY OMBUDSMAN.— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00080 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 81 1 (1) ESTABLISHMENT 2 shall appoint an ombudsman. 3 (2) DUTIES REQUIRED.—The OF OMBUDSMAN.—The Director ombudsman 4 appointed in accordance with paragraph (1) shall— 5 (A) act as a liaison between the Agency 6 and any affected person with respect to any 7 problem that such person may have in dealing 8 with the Agency, resulting from the regulatory 9 activities of the Agency; and 10 (B) assure that safeguards exist to encour- 11 age complainants to come forward and preserve 12 confidentiality. 13 SEC. 305. COMPLAINTS OF INDIVIDUALS. 14 (a) IN GENERAL.—The Director shall establish a unit 15 within the Agency the functions of which shall include es16 tablishing a single, toll-free telephone number, a website, 17 and a database or utilizing an existing database to facili18 tate the centralized collection of, monitoring of, and re19 sponse to complaints of individuals regarding the privacy 20 or security of personal information. The Director shall co21 ordinate with other Federal agencies with jurisdiction over 22 the privacy or security of personal information to route 23 complaints to such agencies, where appropriate. 24 (b) ROUTING COMPLAINTS TO STATES.—To the ex- 25 tent practicable, State agencies may receive appropriate g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00081 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 82 1 complaints from the systems established under subsection 2 (a), if— 3 (1) the State agency system has the functional 4 capacity to receive calls or electronic reports routed 5 by the Agency systems; 6 (2) the State agency has satisfied any condi- 7 tions of participation in the system that the Agency 8 may establish, including treatment of personal infor- 9 mation and sharing of information on complaint res- 10 olution or related compliance procedures and re- 11 sources; and 12 (3) participation by the State agency includes 13 measures necessary to provide for protection of per- 14 sonal information that conform to the standards for 15 protection of the confidentiality of personal informa- 16 tion and for data integrity and security that apply 17 to Federal agencies. 18 (c) DATA SHARING REQUIRED.—To facilitate inclu- 19 sion in the reports required by section 310 of the matters 20 regarding complaints of individuals required by subsection 21 (b)(4) of such section to be included in such reports, inves22 tigation and enforcement activities, and monitoring of the 23 privacy and security of personal information, the Agency 24 shall share information about complaints of individuals 25 with Federal and State agencies that have jurisdiction g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00082 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 83 1 over the privacy or security of personal information and 2 State attorneys general, subject to the standards applica3 ble to Federal agencies for protection of the confidentiality 4 of personal information and for data security and integ5 rity. Other Federal agencies that have jurisdiction over the 6 privacy or security of personal information shall share 7 data relating to complaints of individuals regarding the 8 privacy or security of personal information with the Agen9 cy, subject to the standards applicable to Federal agencies 10 for protection of confidentiality of personal information 11 and for data security and integrity. 12 SEC. 306. USER ADVISORY BOARD. 13 (a) ESTABLISHMENT REQUIRED.—The Director shall 14 establish a User Advisory Board to advise and consult 15 with the Agency in the exercise of its functions under this 16 Act, and to provide information on emerging practices re17 lating to the treatment of personal information by covered 18 entities, including regional trends, concerns, and other rel19 evant information. 20 (b) MEMBERSHIP.—In appointing the members of 21 the User Advisory Board, the Director shall seek to assem22 ble experts in consumer protection, privacy, civil rights, 23 and ethics, and seek representation of the interests of indi24 viduals who use products or services provided by covered 25 entities, without regard to party affiliation. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00083 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 84 1 (c) MEETINGS.—The User Advisory Board shall meet 2 from time to time at the call of the Director, but, at a 3 minimum, shall meet at least twice in each year. 4 (d) COMPENSATION AND TRAVEL EXPENSES.—Mem- 5 bers of the User Advisory Board who are not full-time em6 ployees of the United States shall— 7 (1) be entitled to receive compensation at a rate 8 fixed by the Director while attending meetings of the 9 User Advisory Board, including travel time; and 10 (2) receive travel expenses, including per diem 11 in lieu of subsistence, in accordance with applicable 12 provisions under subchapter I of chapter 57 of title 13 5, United States Code. 14 SEC. 307. ACADEMIC AND RESEARCH ADVISORY BOARD. 15 (a) ESTABLISHMENT REQUIRED.—The Director shall 16 establish an Academic and Research Advisory Board to 17 advise and consult with the Agency in the exercise of its 18 functions under this Act, and to provide information on 19 emerging practices relating to the treatment of personal 20 information by covered entities, including regional trends, 21 concerns, and other relevant information. 22 (b) MEMBERSHIP.—In appointing the members of 23 the Academic and Research Advisory Board, the Director 24 shall seek to assemble individuals with academic and re25 search expertise in privacy, cybersecurity, computer g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00084 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 85 1 science, innovation, economics, law, and public policy, 2 without regard to party affiliation. 3 (c) MEETINGS.—The Academic and Research Advi- 4 sory Board shall meet from time to time at the call of 5 the Director, but, at a minimum, shall meet at least twice 6 in each year. 7 (d) COMPENSATION AND TRAVEL EXPENSES.—Mem- 8 bers of the Academic and Research Advisory Board who 9 are not full-time employees of the United States shall— 10 (1) be entitled to receive compensation at a rate 11 fixed by the Director while attending meetings of the 12 Academic and Research Advisory Board, including 13 travel time; and 14 (2) receive travel expenses, including per diem 15 in lieu of subsistence, in accordance with applicable 16 provisions under subchapter I of chapter 57 of title 17 5, United States Code. 18 SEC. 308. SMALL BUSINESS AND INVESTOR ADVISORY 19 20 BOARD. (a) ESTABLISHMENT REQUIRED.—The Director shall 21 establish a Small Business and Investor Advisory Board 22 to advise and consult with the Agency in the exercise of 23 its functions under this Act, and to provide information 24 on emerging practices relating to the treatment of per- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00085 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 86 1 sonal information by covered entities, including regional 2 trends, concerns, and other relevant information. 3 (b) MEMBERSHIP.—In appointing the members of 4 the Small Business and Investor Advisory Board, the Di5 rector shall seek to assemble representatives of small busi6 nesses and investors in small businesses, without regard 7 to party affiliation. 8 (c) MEETINGS.—The Small Business and Investor 9 Advisory Board shall meet from time to time at the call 10 of the Director, but, at a minimum, shall meet at least 11 twice in each year. 12 (d) COMPENSATION AND TRAVEL EXPENSES.—Mem- 13 bers of the Small Business and Investor Advisory Board 14 who are not full-time employees of the United States 15 shall— 16 (1) be entitled to receive compensation at a rate 17 fixed by the Director while attending meetings of the 18 Small Business and Investor Advisory Board, includ- 19 ing travel time; and 20 (2) receive travel expenses, including per diem 21 in lieu of subsistence, in accordance with applicable 22 provisions under subchapter I of chapter 57 of title 23 5, United States Code. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00086 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 87 1 SEC. 309. CONSULTATION. 2 The Director shall consult with Federal and State 3 agencies that have jurisdiction over the privacy or security 4 of personal information, State attorneys general, inter5 national and intergovernmental bodies that conduct activi6 ties relating to the privacy or security of personal informa7 tion, and agencies of other countries that are similar to 8 the Agency, as appropriate, to promote consistent regu9 latory treatment of the activities of covered entities relat10 ing to the privacy or security of personal information. 11 SEC. 310. REPORTS. 12 (a) REPORTS REQUIRED.—Not later than 6 months 13 after the date of the enactment of this Act, and every 6 14 months thereafter, the Director shall submit a report to 15 the President and to the Committee on Energy and Com16 merce, the Committee on the Judiciary, and the Com17 mittee on Appropriations of the House of Representatives 18 and the Committee on Commerce, Science, and Transpor19 tation, the Committee on the Judiciary, and the Com20 mittee on Appropriations of the Senate, and shall publish 21 such report on the website of the Agency. 22 (b) CONTENTS.—Each report required by subsection 23 (a) shall include— 24 (1) a discussion of the significant problems 25 faced by individuals with respect to the privacy or 26 security of personal information; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 88 1 (2) a justification of the budget request of the 2 Agency for the preceding year, unless a justification 3 for such year was included in the preceding report 4 submitted under such subsection; 5 (3) a list of the significant rules and orders 6 adopted by the Agency, as well as other significant 7 initiatives conducted by the Agency, during the pre- 8 ceding 6-month period and the plan of the Agency 9 for rules, orders, or other initiatives to be under- 10 taken during the upcoming 6-month period; 11 (4) an analysis of complaints about the privacy 12 or security of personal information that the Agency 13 has received and collected in the database described 14 in section 305(a) during the preceding 6-month pe- 15 riod; 16 (5) a list, with a brief statement of the issues, 17 of the public enforcement actions to which the Agen- 18 cy was a party during the preceding 6-month period; 19 and 20 (6) an assessment of significant actions by 21 State attorneys general or State agencies relating to 22 this Act or the rules prescribed under this Act dur- 23 ing the preceding 6-month period. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00088 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 89 1 SEC. 311. GRANTS FOR DEVELOPING OPEN-SOURCE MA- 2 CHINE LEARNING TRAINING DATA. 3 The Director shall establish an Open-Source Machine 4 Learning Training Data Program and make grants 5 through the program to support the development of open6 source, voluntarily disclosed, personal information data 7 sets to be used for the training or development of machine 8 learning and artificial intelligence algorithms. The Direc9 tor shall promulgate regulations to implement the Pro10 gram and to consider any such data sets are in compliance 11 with this Act balancing any intrusion on the privacy of, 12 potential privacy harms to, and reasonable expectations of 13 individuals to whom the personal information relates. 14 SEC. 312. ANNUAL AUDITS. 15 The Director shall order an annual independent audit 16 of the operations and budget of the Agency. 17 SEC. 313. INSPECTOR GENERAL. 18 Section 12 of the Inspector General Act of 1978 (5 19 U.S.C. App.) is amended— 20 (1) in paragraph (1), by inserting the ‘‘Director 21 of the Digital Privacy Agency;’’ after ‘‘the President 22 of the Export-Import Bank;’’; and 23 (2) in paragraph (2), by inserting ‘‘the Digital 24 Privacy Agency,’’ after ‘‘the Export-Import Bank,’’. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00089 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 90 1 SEC. 314. AUTHORIZATION OF APPROPRIATIONS. 2 There are authorized to be appropriated to the Direc- 3 tor to carry out this Act $550,000,000 for each of the 4 fiscal years 2020, 2021, 2022, 2023, and 2024. TITLE IV—ENFORCEMENT 5 6 SEC. 401. DEFINITIONS. 7 In this title: 8 (1) AGENCY term ‘‘Agen- 9 cy investigator’’ means any attorney or investigator 10 employed by the Agency who is charged with the 11 duty of enforcing or carrying into effect any provi- 12 sion of this Act or a rule or order prescribed under 13 this Act. 14 (2) ATTORNEY GENERAL.—The term ‘‘attorney 15 general’’ means, with respect to a State, the attor- 16 ney general or chief law enforcement officer of the 17 State, or another official or agency designated by 18 the State to bring civil actions on behalf of the State 19 or the residents of the State. 20 (3) CUSTODIAN.—The term ‘‘custodian’’ means 21 the custodian or any deputy custodian designated by 22 the Agency. 23 (4) DOCUMENTARY MATERIAL.—The term 24 ‘‘documentary material’’ includes the original or any 25 copy of any book, document, record, report, memo- 26 randum, paper, communication, tabulation, chart, g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 INVESTIGATOR.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00090 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 91 1 logs, electronic files, or other data or data compila- 2 tions stored in any medium. 3 (5) VIOLATION.—The term ‘‘violation’’ means 4 any act or omission that, if proved, would constitute 5 a violation of any provision of this Act or a rule or 6 order prescribed under this Act. 7 (6) NON-PUBLIC INFORMATION.—The term 8 ‘‘non-public information’’ means information that 9 has not been disclosed in a criminal, civil, or admin- 10 istrative proceeding, in a government investigation, 11 report, or audit, or by the news media or other pub- 12 lic source of information, and that was not obtained 13 in violation of the law. 14 SEC. 402. INVESTIGATIONS AND ADMINISTRATIVE DIS- 15 16 COVERY. (a) JOINT INVESTIGATIONS.—The Agency or, where 17 appropriate, an Agency investigator, may conduct inves18 tigations and make requests for information, as authorized 19 under this Act, on a joint basis with another agency (as 20 defined in section 551 of title 5, United States Code). 21 (b) SUBPOENAS.— 22 (1) IN Agency or an Agency 23 investigator may issue subpoenas for the attendance 24 and testimony of witnesses and the production of g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00091 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 92 1 relevant papers, books, documents, or other material 2 in connection with hearings under this Act. 3 (2) FAILURE the case of contu- 4 macy or refusal to obey a subpoena issued pursuant 5 to this subsection and served upon any person, the 6 district court of the United States for any district in 7 which such person is found, resides, or transacts 8 business, upon application by the Agency or an 9 Agency investigator and after notice to such person, 10 may issue an order requiring such person to appear 11 and give testimony or to appear and produce docu- 12 ments or other material. 13 (3) CONTEMPT.—Any failure to obey an order 14 of the court under paragraph (2) may be punished 15 by the court as a contempt thereof. 16 (c) DEMANDS.— 17 (1) IN GENERAL.—Whenever the Agency has 18 reason to believe that any person may be in posses- 19 sion, custody, or control of any documentary mate- 20 rial or tangible things, or may have any information, 21 relevant to a violation, the Agency may, before the 22 institution of any proceedings under this Act, issue 23 in writing, and cause to be served upon such person, 24 a civil investigative demand requiring such person 25 to— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 TO OBEY.—In 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00092 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 93 1 (A) produce such documentary material for 2 inspection and copying or reproduction in the 3 form or medium requested by the Agency; 4 (B) submit such tangible things; 5 (C) file written reports or answers to ques- 6 tions; 7 (D) give oral testimony concerning docu- 8 mentary material, tangible things, or other in- 9 formation; or 10 (E) furnish any combination of such mate- 11 rial, answers, or testimony. 12 (2) REQUIREMENTS.—Each civil investigative 13 demand shall state the nature of the conduct consti- 14 tuting the alleged violation which is under investiga- 15 tion and the provision of law applicable to such vio- 16 lation. 17 (3) PRODUCTION civil 18 investigative demand for the production of documen- 19 tary material shall— 20 (A) describe each class of documentary 21 material to be produced under the demand with 22 such definiteness and certainty as to permit 23 such material to be fairly identified; 24 (B) prescribe a return date or dates which 25 will provide a reasonable period of time within g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 OF DOCUMENTS.—Each 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00093 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 94 1 which the material so demanded may be assem- 2 bled and made available for inspection and 3 copying or reproduction; and 4 (C) identify the custodian to whom such 5 material shall be made available. 6 (4) PRODUCTION civil inves- 7 tigative demand for the submission of tangible 8 things shall— 9 (A) describe each class of tangible things 10 to be submitted under the demand with such 11 definiteness and certainty as to permit such 12 things to be fairly identified; 13 (B) prescribe a return date or dates which 14 will provide a reasonable period of time within 15 which the things so demanded may be assem- 16 bled and submitted; and 17 (C) identify the custodian to whom such 18 things shall be submitted. 19 (5) DEMAND FOR WRITTEN REPORTS OR AN- 20 SWERS.—Each 21 reports or answers to questions shall— civil investigative demand for written 22 (A) propound with definiteness and cer- 23 tainty the reports to be produced or the ques- 24 tions to be answered; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 OF THINGS.—Each 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00094 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 95 1 (B) prescribe a date or dates at which time 2 written reports or answers to questions shall be 3 submitted; and 4 (C) identify the custodian to whom such 5 reports or answers shall be submitted. 6 (6) ORAL 7 civil investigative demand for the giving of oral testimony shall— 8 (A) prescribe a date, time, and place at 9 which oral testimony shall be commenced; and 10 (B) identify an Agency investigator who 11 shall conduct the investigation and the custo- 12 dian to whom the transcript of such investiga- 13 tion shall be submitted. 14 (7) SERVICE.—Any civil investigative demand 15 issued, and any enforcement petition filed, under 16 this section may be served— 17 (A) by any Agency investigator at any 18 place within the territorial jurisdiction of any 19 court of the United States; and 20 (B) upon any person who is not found 21 within the territorial jurisdiction of any court of 22 the United States— 23 (i) in such manner as the Federal 24 Rules of Civil Procedure prescribe for serv- 25 ice in a foreign nation; and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 TESTIMONY.—Each 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00095 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 96 1 (ii) to the extent that the courts of 2 the United States have authority to assert 3 jurisdiction over such person, consistent 4 with due process, the United States Dis- 5 trict Court for the District of Columbia 6 shall have the same jurisdiction to take 7 any action respecting compliance with this 8 section by such person that such district 9 court would have if such person were per- 10 sonally within the jurisdiction of such dis- 11 trict court. 12 (8) METHOD of any civil 13 investigative demand or any enforcement petition 14 filed under this section may be made upon a person 15 by— 16 (A) delivering a duly executed copy of such 17 demand or petition to the individual or to any 18 partner, executive officer, managing agent, or 19 general agent of such person, or to any agent 20 of such person authorized by appointment or by 21 law to receive service of process on behalf of 22 such person; 23 (B) delivering a duly executed copy of such 24 demand or petition to the principal office or 25 place of business of the person to be served; or g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 OF SERVICE.—Service 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00096 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 97 1 (C) depositing a duly executed copy in the 2 United States mails, by registered or certified 3 mail, return receipt requested, duly addressed 4 to such person at the principal office or place 5 of business of such person. 6 (9) PROOF 7 (A) IN GENERAL.—A verified return by the 8 individual serving any civil investigative demand 9 or any enforcement petition filed under this sec- 10 tion setting forth the manner of such service 11 shall be proof of such service. 12 (B) RETURN RECEIPTS.—In the case of 13 service by registered or certified mail, such re- 14 turn shall be accompanied by the return post 15 office receipt of delivery of such demand or en- 16 forcement petition. 17 (10) PRODUCTION OF DOCUMENTARY MATE- 18 RIAL.—The 19 response to a civil investigative demand shall be 20 made under a sworn certificate, in such form as the 21 demand designates, by the person, if a natural per- 22 son, to whom the demand is directed or, if not a 23 natural person, by any person having knowledge of 24 the facts and circumstances relating to such produc- 25 tion, to the effect that all of the documentary mate- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 OF SERVICE.— 12:16 Oct 29, 2019 Jkt 000000 production of documentary material in (739203 28) PO 00000 Frm 00097 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 98 1 rial required by the demand and in the possession, 2 custody, or control of the person to whom the de- 3 mand is directed has been produced and made avail- 4 able to the custodian. 5 (11) SUBMISSION 6 submission of tangible things in response to a civil 7 investigative demand shall be made under a sworn 8 certificate, in such form as the demand designates, 9 by the person to whom the demand is directed or, 10 if not a natural person, by any person having knowl- 11 edge of the facts and circumstances relating to such 12 production, to the effect that all of the tangible 13 things required by the demand and in the posses- 14 sion, custody, or control of the person to whom the 15 demand is directed have been submitted to the cus- 16 todian. 17 (12) SEPARATE ANSWERS.—Each reporting re- 18 quirement or question in a civil investigative demand 19 shall be answered separately and fully in writing 20 under oath, unless it is objected to, in which event 21 the reasons for the objection shall be stated in lieu 22 of an answer, and it shall be submitted under a 23 sworn certificate, in such form as the demand des- 24 ignates, by the person, if a natural person, to whom 25 the demand is directed or, if not a natural person, g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 OF TANGIBLE THINGS.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00098 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 99 1 by any person responsible for answering each report- 2 ing requirement or question, to the effect that all in- 3 formation required by the demand and in the posses- 4 sion, custody, control, or knowledge of the person to 5 whom the demand is directed has been submitted. 6 (13) TESTIMONY.— 7 (A) IN 8 (i) OATH AND RECORDATION.—The 9 examination of any person pursuant to a 10 demand for oral testimony served under 11 this subsection shall be taken before an of- 12 ficer authorized to administer oaths and 13 affirmations by the laws of the United 14 States or of the place at which the exam- 15 ination is held. The officer before whom 16 oral testimony is to be taken shall put the 17 witness on oath or affirmation and shall 18 personally, or by any individual acting 19 under the direction of and in the presence 20 of the officer, record the testimony of the 21 witness. 22 (ii) TRANSCRIPTION.—The testimony 23 shall be taken stenographically and tran- 24 scribed. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.— 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00099 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 100 1 (B) PARTIES Agency in- 2 vestigator before whom oral testimony is to be 3 taken shall exclude from the place where the 4 testimony is to be taken all other persons, ex- 5 cept the person giving the testimony, the attor- 6 ney for that person, the officer before whom the 7 testimony is to be taken, an investigator or rep- 8 resentative of an agency with which the Agency 9 is engaged in a joint investigation, and any ste- 10 nographer taking such testimony. 11 (C) LOCATION.—The oral testimony of any 12 person taken pursuant to a civil investigative 13 demand shall be taken in the judicial district of 14 the United States in which such person resides, 15 is found, or transacts business, or in such other 16 place as may be agreed upon by the Agency in- 17 vestigator before whom the oral testimony of 18 such person is to be taken and such person. 19 (D) ATTORNEY 20 (i) IN REPRESENTATION.— GENERAL.—Any person com- 21 pelled to appear under a civil investigative 22 demand for oral testimony pursuant to this 23 subsection 24 resented, and advised by an attorney. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 PRESENT.—Any 12:16 Oct 29, 2019 Jkt 000000 may be accompanied, rep- (739203 28) PO 00000 Frm 00100 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 101 1 (ii) AUTHORITY.—The attorney may 2 advise a person described in clause (i), in 3 confidence, either upon the request of such 4 person or upon the initiative of the attor- 5 ney, with respect to any question asked of 6 such person. 7 (iii) person de- 8 scribed in clause (i), or the attorney for 9 that person, may object on the record to 10 any question, in whole or in part, and such 11 person shall briefly state for the record the 12 reason for the objection. An objection may 13 properly be made, received, and entered 14 upon the record when it is claimed that 15 such person is entitled to refuse to answer 16 the question on grounds of any constitu- 17 tional or other legal right or privilege, in- 18 cluding the privilege against self-incrimina- 19 tion, but such person shall not otherwise 20 object to or refuse to answer any question, 21 and such person or attorney shall not oth- 22 erwise interrupt the oral examination. 23 (iv) REFUSAL TO ANSWER.—If a per- 24 son described in clause (i) refuses to an- 25 swer any question— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 OBJECTIONS.—A 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00101 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 102 1 (I) the Agency may petition the 2 district court of the United States 3 pursuant to this section for an order 4 compelling such person to answer 5 such question; and 6 (II) if the refusal is on grounds 7 of the privilege against self-incrimina- 8 tion, the testimony of such person 9 may be compelled in accordance with 10 the provisions of section 6004 of title 11 18, United States Code. 12 (E) TRANSCRIPTS.—For purposes of this 13 subsection— 14 (i) after the testimony of any witness 15 is fully transcribed, the Agency investi- 16 gator shall afford the witness (who may be 17 accompanied by an attorney) a reasonable 18 opportunity to examine the transcript; 19 (ii) the transcript shall be read to or 20 by the witness, unless such examination 21 and reading are waived by the witness; 22 (iii) any changes in form or substance 23 which the witness desires to make shall be 24 entered and identified upon the transcript 25 by the Agency investigator, with a state- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00102 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 103 1 ment of the reasons given by the witness 2 for making such changes; 3 (iv) the transcript shall be signed by 4 the witness, unless the witness in writing 5 waives the signing, is ill, cannot be found, 6 or refuses to sign; and 7 (v) if the transcript is not signed by 8 the witness during the 30-day period fol- 9 lowing the date on which the witness is 10 first afforded a reasonable opportunity to 11 examine the transcript, the Agency investi- 12 gator shall sign the transcript and state on 13 the record the fact of the waiver, illness, 14 absence of the witness, or the refusal to 15 sign, together with any reasons given for 16 the failure to sign. 17 (F) CERTIFICATION 18 The Agency investigator shall certify on the 19 transcript that the witness was duly sworn by 20 him or her and that the transcript is a true 21 record of the testimony given by the witness, 22 and the Agency investigator shall promptly de- 23 liver the transcript or send it by registered or 24 certified mail to the custodian. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 BY INVESTIGATOR.— 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00103 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 104 1 (G) COPY Agency 2 investigator shall furnish a copy of the tran- 3 script (upon payment of reasonable charges for 4 the transcript) to the witness only, except that 5 the Agency may for good cause limit such wit- 6 ness to inspection of the official transcript of 7 his testimony. 8 (H) WITNESS FEES.—Any witness appear- 9 ing for the taking of oral testimony pursuant to 10 a civil investigative demand shall be entitled to 11 the same fees and mileage which are paid to 12 witnesses in the district courts of the United 13 States. 14 15 (d) CONFIDENTIAL TREATMENT OF DEMAND MATE- RIAL.— 16 (1) IN GENERAL.—Documentary materials and 17 tangible things received as a result of a civil inves- 18 tigative demand shall be subject to requirements and 19 procedures regarding confidentiality, in accordance 20 with rules established by the Agency. 21 (2) DISCLOSURE TO CONGRESS.—No rule es- 22 tablished by the Agency regarding the confidentiality 23 of materials submitted to, or otherwise obtained by, 24 the Agency shall be intended to prevent disclosure to 25 either House of Congress or to an appropriate com- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 OF TRANSCRIPT.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00104 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 105 1 mittee of the Congress, except that the Agency is 2 permitted to adopt rules allowing prior notice to any 3 party that owns or otherwise provided the material 4 to the Agency and had designated such material as 5 confidential. 6 (e) PETITION FOR ENFORCEMENT.— 7 (1) IN GENERAL.—Whenever any person fails 8 to comply with any civil investigative demand duly 9 served upon him under this section, or whenever sat- 10 isfactory copying or reproduction of material re- 11 quested pursuant to the demand cannot be accom- 12 plished and such person refuses to surrender such 13 material, the Agency, through such officers or attor- 14 neys as it may designate, may file, in the district 15 court of the United States for any judicial district 16 in which such person resides, is found, or transacts 17 business, and serve upon such person, a petition for 18 an order of such court for the enforcement of this 19 section. 20 (2) SERVICE OF PROCESS.—All process of any 21 court to which application may be made as provided 22 in this subsection may be served in any judicial dis- 23 trict. 24 (f) PETITION FOR ORDER MODIFYING OR SETTING 25 ASIDE DEMAND.— g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00105 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 106 1 (1) IN later than 20 days after 2 the service of any civil investigative demand upon 3 any person under subsection (c), or at any time be- 4 fore the return date specified in the demand, which- 5 ever period is shorter, or within such period exceed- 6 ing 20 days after service or in excess of such return 7 date as may be prescribed in writing, subsequent to 8 service, by any Agency investigator named in the de- 9 mand, such person may file with the Agency a peti- 10 tion for an order by the Agency modifying or setting 11 aside the demand. 12 (2) COMPLIANCE DURING PENDENCY.—The 13 time permitted for compliance with the demand in 14 whole or in part, as determined proper and ordered 15 by the Agency, shall not run during the pendency of 16 a petition under paragraph (1) at the Agency, except 17 that such person shall comply with any portions of 18 the demand not sought to be modified or set aside. 19 (3) SPECIFIC GROUNDS.—A petition under 20 paragraph (1) shall specify each ground upon which 21 the petitioner relies in seeking relief, and may be 22 based upon any failure of the demand to comply 23 with the provisions of this section, or upon any con- 24 stitutional or other legal right or privilege of such 25 person. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—Not 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00106 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 107 1 (g) CUSTODIAL CONTROL.—At any time during 2 which any custodian is in custody or control of any docu3 mentary material, tangible things, reports, answers to 4 questions, or transcripts of oral testimony given by any 5 person in compliance with any civil investigative demand, 6 such person may file, in the district court of the United 7 States for the judicial district within which the office of 8 such custodian is situated, and serve upon such custodian, 9 a petition for an order of such court requiring the per10 formance by such custodian of any duty imposed upon him 11 by this section or rule promulgated by the Agency. 12 (h) JURISDICTION OF COURT.— 13 (1) IN GENERAL.—Whenever any petition is 14 filed in any district court of the United States under 15 this section, such court shall have jurisdiction to 16 hear and determine the matter so presented, and to 17 enter such order or orders as may be required to 18 carry out the provisions of this section. 19 (2) APPEAL.—Any final order entered as de- 20 scribed in paragraph (1) shall be subject to appeal 21 pursuant to section 1291 of title 28, United States 22 Code. 23 SEC. 403. HEARINGS AND ADJUDICATION PROCEEDINGS. 24 (a) IN GENERAL.—The Agency is authorized to con- 25 duct hearings and adjudication proceedings with respect g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00107 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 108 1 to any person in the manner prescribed by chapter 5 of 2 title 5, United States Code, in order to ensure or enforce 3 compliance with this Act and the rules prescribed under 4 this Act. 5 6 (b) SPECIAL RULES CEEDINGS.— 7 (1) ORDERS 8 (A) IN AUTHORIZED.— GENERAL.—If, in the opinion of the 9 Agency, a person is engaging or has engaged in 10 an act or omission that violates any provision of 11 this Act or a rule or order prescribed under this 12 Act, the Agency may issue and serve upon the 13 person a notice of charges in respect thereof. 14 (B) CONTENT OF NOTICE.—The notice 15 under subparagraph (A) shall contain a state- 16 ment of the facts constituting the alleged viola- 17 tion, and shall fix a time and place at which a 18 hearing will be held to determine whether an 19 order to cease and desist should issue against 20 the person, such hearing to be held not earlier 21 than 30 days nor later than 60 days after the 22 date of service of such notice, unless an earlier 23 or a later date is set by the Agency, at the re- 24 quest of any person so served. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 CEASE-AND-DESIST PRO- FOR 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00108 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 109 1 (C) CONSENT.—Unless a person served 2 under subparagraph (B) appears at the hearing 3 personally or by a duly authorized representa- 4 tive, the person shall be deemed to have con- 5 sented to the issuance of the cease-and-desist 6 order. 7 (D) PROCEDURE.—In the event of consent 8 under subparagraph (C), or if, upon the record 9 made at any such hearing, the Agency finds 10 that any violation specified in the notice of 11 charges has been established, the Agency may 12 issue and serve upon the person an order to 13 cease and desist from the violation. Such order 14 may, by provisions which may be mandatory or 15 otherwise, require the person to cease and de- 16 sist from the subject act or omission, and to 17 take affirmative action to correct the conditions 18 resulting from any such violation. 19 (2) EFFECTIVENESS cease-and- 20 desist order shall become effective at the expiration 21 of 30 days after the date of service of the order 22 under paragraph (1)(D) (except in the case of a 23 cease-and-desist order issued upon consent, which 24 shall become effective at the time specified therein), 25 and shall remain effective and enforceable as pro- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 OF ORDER.—A 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00109 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 110 1 vided therein, except to such extent as the order is 2 stayed, modified, terminated, or set aside by action 3 of the Agency or a reviewing court. 4 (3) DECISION hearing pro- 5 vided for in this subsection shall be held in the Fed- 6 eral judicial district or in the territory in which the 7 residence or principal office or place of business of 8 the person is located unless the person consents to 9 another place, and shall be conducted in accordance 10 with the provisions of chapter 5 of title 5, United 11 States Code. After such hearing, and not later than 12 90 days after the Agency has notified each party to 13 the proceeding that the case has been submitted to 14 the Agency for final decision, the Agency shall 15 render its decision (which shall include findings of 16 fact upon which its decision is predicated) and shall 17 issue and serve upon each such party an order or or- 18 ders consistent with the provisions of this section. 19 Judicial review of any such order shall be exclusively 20 as provided in this subsection. Unless a petition for 21 review is timely filed in a court of appeals of the 22 United States, as provided in paragraph (4), and 23 thereafter until the record in the proceeding has 24 been filed as provided in paragraph (4), the Agency 25 may at any time, upon such notice and in such man- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 AND APPEAL.—Any 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00110 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 111 1 ner as the Agency shall determine proper, modify, 2 terminate, or set aside any such order. Upon filing 3 of the record as provided, the Agency may modify, 4 terminate, or set aside any such order with permis- 5 sion of the court. 6 (4) APPEAL COURT OF APPEALS.—Any 7 party to any proceeding under this subsection may 8 obtain a review of any order served pursuant to this 9 subsection (other than an order issued with the con- 10 sent of the party) by filing in the court of appeals 11 of the United States for the circuit in which the resi- 12 dence or principal office or place of business of the 13 party is located, or in the United States Court of 14 Appeals for the District of Columbia Circuit, within 15 30 days after the date of service of such order, a 16 written petition praying that the order of the Agency 17 be modified, terminated, or set aside. A copy of such 18 petition shall be forthwith transmitted by the clerk 19 of the court to the Agency, and thereupon the Agen- 20 cy shall file in the court the record in the pro- 21 ceeding, as provided in section 2112 of title 28, 22 United States Code. Upon the filing of such petition, 23 such court shall have jurisdiction, which upon the 24 filing of the record shall, except as provided in the 25 last sentence of paragraph (3), be exclusive, to af- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 TO 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00111 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 112 1 firm, modify, terminate, or set aside, in whole or in 2 part, the order of the Agency. Review of such pro- 3 ceedings shall be had as provided in chapter 7 of 4 title 5, United States Code. The judgment and de- 5 cree of the court shall be final, except that the same 6 shall be subject to review by the Supreme Court of 7 the United States, upon certiorari, as provided in 8 section 1254 of title 28, United States Code. 9 (5) NO commencement of pro- 10 ceedings for judicial review under paragraph (4) 11 shall not, unless specifically ordered by the court, 12 operate as a stay of any order issued by the Agency. 13 (c) SPECIAL RULES 14 DESIST 15 FOR TEMPORARY CEASE-AND- PROCEEDINGS.— (1) IN GENERAL.—Whenever the Agency deter- 16 mines that the violation specified in the notice of 17 charges served upon a person pursuant to subsection 18 (b), or the continuation thereof, is likely to cause the 19 person to be insolvent or otherwise prejudice the in- 20 terests of individuals before the completion of the 21 proceedings conducted pursuant to subsection (b), 22 the Agency may issue a temporary order requiring 23 the person to cease and desist from any such viola- 24 tion and to take affirmative action to prevent or 25 remedy such insolvency or other condition pending g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 STAY.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00112 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 113 1 completion of such proceedings. Such order may in- 2 clude any requirement authorized under this title. 3 Such order shall become effective upon service upon 4 the person and, unless set aside, limited, or sus- 5 pended by a court in proceedings authorized by 6 paragraph (2), shall remain effective and enforceable 7 pending the completion of the administrative pro- 8 ceedings pursuant to such notice and until such time 9 as the Agency shall dismiss the charges specified in 10 such notice, or if a cease-and-desist order is issued 11 against the person, until the effective date of such 12 order. 13 (2) APPEAL.—Not later than 10 days after a 14 person has been served with a temporary cease-and- 15 desist order, the person may apply to the United 16 States district court for the judicial district in which 17 the residence or principal office or place of business 18 of the person is located, or the United States Dis- 19 trict Court for the District of Columbia, for an in- 20 junction setting aside, limiting, or suspending the 21 enforcement, operation, or effectiveness of such 22 order pending the completion of the administrative 23 proceedings pursuant to the notice of charges served 24 upon the person under subsection (b), and such 25 court shall have jurisdiction to issue such injunction. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00113 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 114 1 2 (d) SPECIAL RULES FOR ENFORCEMENT OF OR- DERS.— 3 (1) IN GENERAL.—The Agency may in its dis- 4 cretion apply to the United States district court 5 within the jurisdiction of which the residence or 6 principal office or place of business of a person is lo- 7 cated, for the enforcement of any effective and out- 8 standing order issued under this section against 9 such person, and such court shall have jurisdiction 10 and power to order and require compliance with 11 such order. 12 (2) EXCEPTION.—Except as otherwise provided 13 in this section, no court shall have jurisdiction to af- 14 fect by injunction or otherwise the issuance or en- 15 forcement of any order or to review, modify, sus- 16 pend, terminate, or set aside any such order. 17 (e) RULES.—The Agency shall prescribe rules estab- 18 lishing such procedures as may be necessary to carry out 19 this section. 20 SEC. 404. LITIGATION AUTHORITY. 21 (a) IN GENERAL.—If a person violates any provision 22 of this Act or a rule or order prescribed under this Act, 23 the Agency may commence a civil action against such per24 son to impose a civil penalty or to seek all appropriate g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00114 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 115 1 legal and equitable relief, including a permanent or tem2 porary injunction. 3 (b) REPRESENTATION.—Except as provided in sub- 4 section (e), the Agency may act in its own name and 5 through its own attorneys in any action, suit, or other 6 court proceeding to which the Agency is a party. 7 (c) COMPROMISE OF ACTIONS.—The Agency may 8 compromise or settle any action, suit, or other court pro9 ceeding to which the Agency is a party if such compromise 10 is approved by the court. 11 (d) NOTICE TO THE ATTORNEY GENERAL.— 12 (1) IN commencing a civil 13 action under subsection (a), the Agency shall notify 14 the Attorney General. 15 (2) NOTICE 16 AND COORDINATION.— (A) NOTICE OF OTHER ACTIONS.—In addi- 17 tion to any notice required under paragraph 18 (1), the Agency shall notify the Attorney Gen- 19 eral concerning any action, suit, or other court 20 proceeding to which the Agency is a party. 21 (B) COORDINATION.—In order to avoid 22 conflicts and promote consistency regarding liti- 23 gation of matters under Federal law, the Attor- 24 ney General and the Agency shall consult re- 25 garding the coordination of investigations and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—When 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00115 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 116 1 proceedings, including by negotiating an agree- 2 ment for coordination by not later than 180 3 days after the effective date specified in section 4 4(a). The agreement under this subparagraph 5 shall include provisions to ensure that parallel 6 investigations and proceedings involving this 7 Act and the rules prescribed under this Act are 8 conducted in a manner that avoids conflicts and 9 does not impede the ability of the Attorney 10 General to prosecute violations of Federal 11 criminal laws. 12 (C) RULE OF CONSTRUCTION.—Nothing in 13 this paragraph shall be construed to limit the 14 authority of the Agency under this Act, includ- 15 ing the authority to interpret this Act. 16 (e) APPEARANCE BEFORE THE SUPREME COURT.— 17 The Agency may represent itself in its own name before 18 the Supreme Court of the United States, if the Agency 19 makes a written request to the Attorney General within 20 the 10-day period which begins on the date of entry of 21 the judgment which would permit any party to file a peti22 tion for writ of certiorari, and the Attorney General con23 curs with such request or fails to take action within 60 24 days of the request of the Agency. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00116 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 117 1 (f) FORUM.—Any civil action brought under sub- 2 section (a) may be brought in an appropriate district court 3 of the United States or an appropriate State court. 4 (g) TIME FOR BRINGING ACTION.—Except as other- 5 wise permitted by law or equity, no action may be brought 6 under subsection (a) more than 3 years after the date of 7 discovery of the violation to which the action relates. 8 SEC. 405. COORDINATION WITH OTHER FEDERAL AGEN- 9 10 CIES. (a) COORDINATION.—With respect to covered entities 11 and service providers, to the extent that Federal law au12 thorizes the Agency and another Federal agency to enforce 13 privacy laws, the other Federal agency shall coordinate 14 with the Agency to promote consistent enforcement of this 15 Act and other Federal privacy laws. 16 (b) REFERRAL.—Any Federal agency authorized to 17 enforce a Federal privacy law described in section 501 18 may recommend in writing to the Agency that the Agency 19 initiate an enforcement proceeding, as the Agency is au20 thorized by that Federal law or by this Act. 21 (c) COORDINATION WITH THE FEDERAL TRADE 22 COMMISSION.— 23 (1) IN Agency and the Federal 24 Trade Commission shall negotiate an agreement for 25 coordinating with respect to enforcement actions by g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—The 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00117 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 118 1 each agency regarding the provision of a product or 2 service offered by any covered entity. The agreement 3 shall include procedures for notice to the other agen- 4 cy, where feasible, prior to initiating a civil action to 5 enforce any Federal law regarding the privacy of in- 6 dividuals or security of personal information. 7 (2) CIVIL a civil action 8 has been filed by, or on behalf of, the Agency or the 9 Federal Trade Commission for any violation of any 10 provision of Federal law described in paragraph (1), 11 or any regulation prescribed under such provision of 12 law— 13 (A) the other agency may not, during the 14 pendency of that action, institute a civil action 15 under such provision of law against any defend- 16 ant named in the complaint in such pending ac- 17 tion for any violation alleged in the complaint; 18 and 19 (B) the Agency or the Federal Trade Com- 20 mission may intervene as a party in any such 21 action brought by the other agency, and, upon 22 intervening— 23 (i) be heard on all matters arising in 24 such enforcement action; and g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 ACTIONS.—Whenever 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00118 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 119 1 (ii) file petitions for appeal in such ac- 2 tions. 3 (3) AGREEMENT TERMS.—The terms of any 4 agreement negotiated under paragraph (1) may 5 modify or supersede the provisions of paragraph (2). 6 (4) DEADLINE.—The agencies shall reach the 7 agreement required under paragraph (1) not later 8 than 6 months after the designated transfer date. 9 SEC. 406. ENFORCEMENT BY STATES. 10 (a) CIVIL ACTION.—In any case in which the attor- 11 ney general of a State has reason to believe that an inter12 est of the residents of such State has been or is adversely 13 affected by any person who violates any provision of this 14 Act or a rule or order prescribed under this Act, the attor15 ney general of the State, as parens patriae, may bring a 16 civil action on behalf of the residents of the State in an 17 appropriate State court or an appropriate district court 18 of the United States— 19 20 (1) to enjoin further violation of such provision by the defendant; 21 22 (2) to compel compliance with such provision; or 23 24 (3) to obtain relief under section 408. (b) RIGHTS OF AGENCY.—Before initiating a civil ac- 25 tion under subsection (a), the attorney general of a State g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00119 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 120 1 shall notify the Agency in writing of such civil action. 2 Upon receiving notice with respect to a civil action, the 3 Agency may— 4 (1) intervene in such action; and 5 (2) upon intervening— 6 (A) be heard on all matters arising in such 7 civil action; and 8 (B) file petitions for appeal of a decision in 9 such action. 10 (c) PREEMPTIVE ACTION BY AGENCY.—If the Agen- 11 cy institutes a civil action for violation of any provision 12 of this Act or a rule or order prescribed under this Act, 13 no attorney general of a State may bring a civil action 14 against any defendant named in the complaint of the 15 Agency for a violation of such provision that is alleged 16 in such complaint. 17 SEC. 407. PRIVATE RIGHTS OF ACTION. 18 (a) INJUNCTIVE RELIEF.—A person who is aggrieved 19 by a violation of this Act may bring a civil action for de20 claratory or injunctive relief in any court of competent ju21 risdiction in any State or in an appropriate district court. 22 (b) CIVIL ACTION FOR DAMAGES.—Except for claims 23 under rule 23 of the Federal Rules of Civil Procedure or 24 a similar judicial procedure authorizing an action to be 25 brought by 1 or more representatives, a person who is ag- g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00120 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 121 1 grieved by a violation of this Act may bring a civil action 2 for damages in any court of competent jurisdiction in any 3 State or in an appropriate district court. 4 (c) NONPROFIT COLLECTIVE REPRESENTATION.— 5 An individual shall have the right to appoint a nonprofit 6 body, organization, or association which has been properly 7 constituted in accordance with the law, has statutory ob8 jectives which are in the public interest, and is active in 9 the field of the protection of individual rights and free10 doms with regard to the protection of their personal data 11 to lodge the complaint on his or her behalf, to exercise 12 the rights referred to in this Act on his or her behalf. 13 14 (1) A nonprofit may represent a class of aggrieved individuals 15 (2) A prevailing nonprofit shall receive reason- 16 able compensation for expenses, including attorneys 17 fees. 18 (3) Individuals shall receive an equally divided 19 share of the total damages. 20 (d) STATE APPOINTMENT.—A State may provide 21 that any body, organization or association referred to in 22 subsection (c), independently of an individual’s appoint23 ment, has the right to lodge, in that State, a complaint 24 with the Agency and to exercise the rights referred to in g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00121 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 122 1 this Act if it considers that the rights of an individual 2 under this Act have been infringed. 3 SEC. 408. RELIEF AVAILABLE. 4 5 (a) CIVIL ACTIONS ADJUDICATION PRO- CEEDINGS.— 6 (1) JURISDICTION.—In any civil action or any 7 adjudication proceeding brought by the Agency or 8 the attorney general of a State, under any provision 9 of this Act or a rule or order prescribed under this 10 Act, the court or the Agency (as the case may be) 11 shall have jurisdiction to grant any appropriate legal 12 or equitable relief with respect to a violation of such 13 provision. 14 15 (2) RELIEF.—Relief under this section may include— 16 (A) rescission or reformation of contracts; 17 (B) refund of moneys; 18 (C) restitution; 19 (D) disgorgement or compensation for un- 20 just enrichment; 21 (E) payment of damages or other mone- 22 tary relief; 23 (F) public notification regarding the viola- 24 tion, including the costs of notification; g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 AND 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00122 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 123 1 (G) limits on the activities or functions of 2 the person; and 3 (H) civil money penalties, as provided in 4 subsection (c). 5 (3) NO EXEMPLARY OR PUNITIVE DAMAGES.— 6 Nothing in this subsection shall be construed as au- 7 thorizing the imposition of exemplary or punitive 8 damages. 9 (b) RECOVERY OF COSTS.—In any civil action 10 brought by the Agency or the attorney general of a State 11 under any provision of this Act or a rule or order pre12 scribed under this Act, the Agency or attorney general 13 may recover its costs in connection with prosecuting such 14 action if the Agency or attorney general is the prevailing 15 party in the action. 16 17 (c) CIVIL MONEY PENALTY DICATION 18 COURT AND ADJU- PROCEEDINGS.— (1) IN GENERAL.—Any person who violates, 19 through any act or omission, any provision of this 20 Act or a rule or order prescribed under this Act 21 shall forfeit and pay a civil penalty under this sub- 22 section. 23 (2) PENALTY g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 IN 12:16 Oct 29, 2019 Jkt 000000 AMOUNT.— (739203 28) PO 00000 Frm 00123 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 124 1 (A) IN amount of a civil 2 penalty under this subsection may not exceed, 3 for each violation, the product of— 4 (i) the maximum civil penalty for 5 which a person, partnership, or corporation 6 may be liable under section 5(m)(1)(A) of 7 the Federal Trade Commission Act (15 8 U.S.C. 45(m)(1)(A)) for a violation of a 9 rule under such Act respecting unfair or 10 deceptive acts or practices, as adjusted 11 under the Federal Civil Penalties Inflation 12 Adjustment Act of 1990 (28 U.S.C. 2461 13 note); and 14 (ii) the number of individuals the per- 15 sonal information of which is affected by 16 the violation. 17 (B) CONTINUING VIOLATIONS.—In the 18 case of a violation through continuing failure to 19 comply with a provision of this Act or a rule or 20 order prescribed under this Act, each day of 21 continuance of such failure shall be treated as 22 a separate violation for purposes of subpara- 23 graph (A). 24 (3) MITIGATING 25 12:16 Oct 29, 2019 FACTORS.—In determining the amount of any penalty assessed under paragraph g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 GENERAL.—The Jkt 000000 (739203 28) PO 00000 Frm 00124 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 125 1 (2), the court or the Agency shall take into account 2 the appropriateness of the penalty with respect to— 3 (A) the size of financial resources and good 4 faith of the person charged; 5 (B) the gravity of the violation; 6 (C) the severity of the privacy harms (in- 7 cluding both actual and potential harms) to in- 8 dividuals; 9 (D) any disparate impact of the privacy 10 harms (including both actual and potential 11 harms) on protected classes; 12 (E) the history of previous violations; and 13 (F) such other matters as justice may re- 14 quire. 15 (4) AUTHORITY 16 ALTY.—The 17 may compromise, modify, or remit any penalty which 18 may be assessed or has already been assessed under 19 paragraph (2). The amount of such penalty, when fi- 20 nally determined, shall be exclusive of any sums 21 owed by the person to the United States in connec- 22 tion with the costs of the proceeding, and may be 23 deducted from any sums owing by the United States 24 to the person charged. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 TO MODIFY OR REMIT PEN- 12:16 Oct 29, 2019 Jkt 000000 Agency or attorney general of a State (739203 28) PO 00000 Frm 00125 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 126 1 (5) NOTICE AND HEARING.—No civil penalty 2 may be assessed under this subsection with respect 3 to a violation of any provision of this Act or a rule 4 or order prescribed under this Act, unless— 5 (A) the Agency or attorney general of a 6 State gives notice and an opportunity for a 7 hearing to the person accused of the violation; 8 or 9 (B) the appropriate court has ordered such 10 assessment and entered judgment in favor of 11 the Agency or attorney general of a State. 12 SEC. 409. REFERRAL FOR CRIMINAL PROCEEDINGS. 13 If the Agency obtains evidence that any person, do- 14 mestic or foreign, has engaged in conduct that may con15 stitute a violation of Federal criminal law, the Agency 16 shall transmit such evidence to the Attorney General of 17 the United States, who may institute criminal proceedings 18 under appropriate law. Nothing in this section affects any 19 other authority of the Agency to disclose information. 20 SEC. 410. WHISTLEBLOWER ENFORCEMENT. 21 (a) IN GENERAL.—Any person who becomes aware, 22 based on non-public information, that a covered entity has 23 violated this Act may file a civil action for civil penalties, 24 if prior to filing such action, the person files with the Di25 rector a written request for the Director to commence the g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00126 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 127 1 action. The request shall include a clear and concise state2 ment of the grounds for believing a cause of action exists. 3 The person shall make the non-public information avail4 able to the Director upon request. 5 (1) If the Director files suit within 90 days 6 from receipt of the written request to commence the 7 action, no other action may be brought unless the 8 action brought by the Director is dismissed without 9 prejudice. 10 (2) If the Director does not file suit within 90 11 days from receipt of the written request to com- 12 mence the action, the person requesting the action 13 may proceed to file a civil action. 14 (3) The time period within which a civil action 15 shall be commenced shall be tolled from the date of 16 receipt by the Director of the written request to ei- 17 ther the date that the civil action is dismissed with- 18 out prejudice, or for 150 days, whichever is later, 19 but only for a civil action brought by the person who 20 requested the Director to commence the action. 21 (b) ALLOCATION OF CIVIL PENALTIES.—If a judg- 22 ment is entered against the defendant or defendants in 23 an action brought pursuant to this section, or the matter 24 is settled, amounts received as civil penalties or pursuant 25 to a settlement of the action shall be allocated as follows: g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00127 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 128 1 (1) If the action was brought by the Director 2 upon a request made by a person pursuant to (a), 3 the person who made the request shall be entitled to 4 15 percent of the civil penalties. 5 (2) If the action was brought by the person who 6 made the request pursuant to (a), that person shall 7 receive an amount the court determines is reason- 8 able for collecting the civil penalties on behalf of the 9 government. The amount shall be not less than 25 10 percent and not more than 50 percent of the pro- 11 ceeds of the action and shall be paid out of the pro- 12 ceeds. TITLE V—RELATION TO OTHER LAW 13 14 15 SEC. 501. RELATION TO OTHER FEDERAL LAW. 16 Nothing in this Act shall be construed to— 17 18 (1) modify, limit, or supersede the operation of any privacy or security provision in— 19 (A) section 552a of title 5, United States 20 Code (commonly known as the ‘‘Privacy Act of 21 1974’’); 22 (B) the Right to Financial Privacy Act of 23 1978 (12 U.S.C. 3401 et seq.); 24 (C) the Fair Credit Reporting Act (15 25 U.S.C. 1681 et seq.); g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00128 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 129 1 (D) the Fair Debt Collection Practices Act 2 (15 U.S.C. 1692 et seq.); 3 (E) the Children’s Online Privacy Protec- 4 tion Act of 1998 (15 U.S.C. 6501 et seq.); 5 (F) title V of the Gramm-Leach-Bliley Act 6 (15 U.S.C. 6801 et seq.); 7 (G) chapters 119, 123, or 206 of title 18, 8 United States Code; 9 (H) section 444 of the General Education 10 Provisions Act (20 U.S.C. 1232g) (commonly 11 referred to as the ‘‘Family Educational Rights 12 and Privacy Act of 1974’’); 13 (I) section 445 of the General Education 14 Provisions Act (20 U.S.C. 1232h); 15 (J) the Privacy Protection Act of 1980 (42 16 U.S.C. 2000aa et seq.); 17 (K) the regulations promulgated under sec- 18 tion 264(c) of the Health Insurance Portability 19 and Accountability Act of 1996 (42 U.S.C. 20 1320d–2 note), as those regulations relate to— 21 (i) a person described in section 22 1172(a) of the Social Security Act (42 23 U.S.C. 1320d–1(a)); or g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00129 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 130 1 (ii) transactions referred to in section 2 1173(a)(1) of the Social Security Act (42 3 U.S.C. 1320d–2(a)(1)); 4 (L) the Communications Assist- 5 ance for Law Enforcement Act (47 6 U.S.C. 1001 et seq.); 7 (M) sections 222, 227, 338, or 631 of the 8 Communications Act of 1934 (47 U.S.C. 222, 9 227, 338, or 551); 10 (N) the E-Government Act of 2002 (44 11 U.S.C. 101 et seq.); 12 (O) the Paperwork Reduction Act of 1995 13 (44 U.S.C. 3501 et seq.); 14 (P) Federal Information Security Manage- 15 ment Act of 2002 (44 U.S.C. 3541 et seq.); 16 (Q) the Currency and Foreign Trans- 17 actions Reporting Act of 1970, as amended 18 (commonly known as the Bank Secrecy Act) 19 (12 U.S.C. 1829b and 1951–1959, 31 U.S.C. 20 5311–5314 and 5316–5332), including the 21 International Money Laundering Abatement 22 and Financial Anti-Terrorism Act of 2001, title 23 III of Public Law 107–56, as amended; 24 (R) the National Security Act of 1947 (50 25 U.S.C. 3001 et seq.); g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00130 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 131 1 (S) the Foreign Intelligence Surveillance 2 Act of 1978, as amended (50 U.S.C. 1801 et 3 seq.); 4 (T) the Civil Rights Act of 1964 (Public 5 Law 88–352, 78 Stat. 241); 6 (U) the Americans with Disabilities Act 7 (42 U.S.C. 12101 et seq.); 8 (V) the Fair Housing Act (42 U.S.C. 3601 9 et seq.); 10 (W) the Dodd-Frank Wall Street Reform 11 and Consumer Protection Act (Public Law 12 111–203, 124 Stat. 1376–2223); 13 (X) the Equal Credit Opportunity Act (15 14 U.S.C. 1691 et seq.); 15 (Y) the Age Discrimination in Employment 16 Act (29 U.S.C. 621 et seq.); 17 (Z) Genetic Information Non- 18 discrimination Act (Public Law 110–233, 122 19 Stat. 881); or 20 (AA) any other privacy or security provi- 21 sion of Federal law; or 22 (2) limit the authority of the Federal Commu- 23 nications Commission to promulgate regulations and 24 enforce any privacy law not in contradiction with 25 this Act. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 the 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00131 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0 G:\M\16\ESHOO\ESHOO_038.XML 132 1 SEC. 502. SEVERABILITY. 2 If any provision of this Act, or the application there- 3 of, is held unconstitutional or otherwise invalid, the valid4 ity of the remainder of the Act and the application of such 5 provision shall not be affected thereby. g:\VHLC\102919\102919.121.xml October 29, 2019 (12:16 p.m.) VerDate Mar 15 2010 12:16 Oct 29, 2019 Jkt 000000 (739203 28) PO 00000 Frm 00132 Fmt 6652 Sfmt 6201 C:\USERS\CBOSBORNE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\ESHOO_0