[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 4738 Introduced in Senate (IS)]

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117th CONGRESS
  2d Session
                                S. 4738

To protect the privacy of personally-identifiable health data, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 2, 2022

Ms. Klobuchar (for herself and Mr. Whitehouse) introduced the following 
 bill; which was read twice and referred to the Committee on Commerce, 
                      Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
To protect the privacy of personally-identifiable health data, and for 
                            other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Stop Commercial Use of Health Data 
Act''.

SEC. 2. PRIVACY OF PERSONALLY-IDENTIFIABLE HEALTH DATA.

    (a) Prohibition on the Use of Personally-Identifiable Health Data 
in Commercial Advertising.--
            (1) In general.--It shall be unlawful for any covered 
        entity to use the personally-identifiable health data of an 
        individual that is collected from any source (including data 
        volunteered by an individual, medical center-derived data, data 
        from a wearable fitness tracker, data from web browsing 
        history, or any other source determined appropriate by the 
        Commission) for commercial advertising.
            (2) Exception for public health campaigns.--The prohibition 
        under paragraph (1) shall not apply to any public health 
        campaign directed toward individuals or subpopulations of 
        individuals.
    (b) Right of Access and Deletion.--
            (1) Right of access.--
                    (A) In general.--A covered entity shall make 
                available an easy-to-use mechanism by which an 
                individual, upon verified request, may access any 
                personally-identifiable health data relating to such 
                individual that is retained by such covered entity.
                    (B) Format.--A covered entity shall make the 
                information described in subparagraph (A) available in 
                both a human-readable and a machine-readable format.
            (2) Right of deletion.--A covered entity shall make 
        available an easy-to-use mechanism by which an individual, upon 
        verified request, may request the deletion of any personally-
        identifiable health data relating to such individual that is 
        retained by such covered entity.
            (3) Requirements for access and deletion.--
                    (A) Timeline for complying with requests.--A 
                covered entity shall comply with a verified request 
                received under this subsection without undue delay, but 
                not later than 45 days after the date on which such 
                covered entity receives such verified request.
                    (B) Fees prohibited.--A covered entity may not 
                charge a fee to an individual for a request made under 
                this subsection.
                    (C) Rules of construction.--Nothing in this section 
                shall be construed--
                            (i) as supplanting or abrogating any 
                        provision of the Health Insurance Portability 
                        and Accountability Act of 1996 (Public Law 104-
                        191); or
                            (ii) to require a covered entity to--
                                    (I) take an action that would 
                                convert information that is not 
                                personally-identifiable health data 
                                into personally-identifiable health 
                                data;
                                    (II) collect or retain personally-
                                identifiable health data that such 
                                covered entity would not otherwise 
                                collect or retain; or
                                    (III) retain personally-
                                identifiable health data longer than 
                                such covered entity would otherwise 
                                retain such data.

SEC. 3. ENFORCEMENT.

    (a) Enforcement by the Commission.--
            (1) Unfair and deceptive acts or practices.--A violation of 
        section 2 or a regulation promulgated thereunder shall be 
        treated as an unfair and deceptive act or practice proscribed 
        under section 5(a) of the Federal Trade Commission Act (15 
        U.S.C. 45(a)).
            (2) Powers of the commission.--
                    (A) In general.--The Commission shall enforce this 
                Act in the same manner, by the same means, and with the 
                same jurisdiction, powers, and duties as though all 
                applicable terms and provisions of the Federal Trade 
                Commission Act (15 U.S.C. 41 et seq.) were incorporated 
                into and made a part of this Act.
                    (B) Privileges and immunities.--Any person who 
                violates this Act shall be subject to the penalties and 
                entitled to the privileges and immunities provided in 
                the Federal Trade Commission Act (15 U.S.C. 41 et 
                seq.).
                    (C) Authority preserved.--Nothing in this Act shall 
                be construed to limit the authority of the Commission 
                under any other provision of law.
            (3) Rulemaking.--The Commission shall promulgate in 
        accordance with section 553 of title 5, United States Code, 
        such rules as may be necessary to carry out this Act.
    (b) Enforcement by Individuals.--
            (1) In general.--Any individual who suffers an injury 
        (including the denial of a right established under this Act) as 
        a result of a violation of this Act or a regulation promulgated 
        thereunder by a covered entity may bring a civil action against 
        such covered entity in Federal district court.
            (2) Relief.--In a civil action brought under paragraph (1) 
        in which the plaintiff prevails, the court may award the 
        plaintiff--
                    (A) for a--
                            (i) violation of section 2(a), an amount 
                        equal to the greater of--
                                    (I) $1,000 in statutory damages per 
                                commercial advertisement generated in 
                                violation of such subsection; or
                                    (II) the sum of any actual damages 
                                sustained; or
                            (ii) violation of section 2(b), an amount 
                        equal to the sum of any actual damages 
                        sustained; and
                    (B) reasonable attorney's fees and litigation 
                costs.

SEC. 4. DEFINITIONS.

    (a) In General.--In this Act:
            (1) Collect.--The term ``collect'' means, with respect to 
        personally-identifiable health data, to obtain such information 
        in any manner.
            (2) Commercial advertising.--The term ``commercial 
        advertising'' means communications that promote the sale of or 
        interest in goods or services, including goods or services that 
        are published digitally, via video or audio, or in print.
            (3) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (4) Covered entity.--The term ``covered entity'' means a 
        person that--
                    (A) is subject to the Federal Trade Commission Act 
                (15 U.S.C. 41 et seq.); and
                    (B) collects, on an annual basis, the personally-
                identifiable health data of not less than 1,000 
                individuals in the United States.
    (b) Rulemaking.--Not later than 180 days after the date of 
enactment of this Act, the Commission shall conduct a rulemaking 
pursuant to section 553 of title 5, United States Code, to define the 
terms ``public health campaign'' and ``personally-identifiable health 
data'' for purposes of this Act.
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