“Tracing Papers”: A Comparison of COVID-19 Data Privacy Bills

“Tracing Papers”: A Comparison of COVID-19 Data Privacy Bills

Legal Sidebari

“Tracing Papers”: A Comparison of COVID-19
Data Privacy Bills
June 26, 2020
As COVID-19 continues to spread, many public health authorities are turning to contact tracing—
measures to identify, notify, and monitor infected individuals’ contacts—to track potential COVID-19
exposure. Along with conventional techniques, technology companies, including Google and Apple, are
developing digital contact-tracing and exposure notification tools. In addition, Congress has appropriated
emergency funds to help facilitate contact-tracing efforts. But the idea of using personal information—
including cell phone and location data—to track COVID-19 exposure has prompted groups such as the
ACLU to raise privacy concerns and call for the protection of individuals’ privacy and anonymity.
In response, Members of Congress have introduced four data privacy bills addressing digital contact-
tracing and exposure notification:
 the COVID-19 Consumer Data Protection Act of 2020 (CCDPA), S. 3663, introduced by
Senators Roger Wicker, John Thune, Jerry Moran, Marsha Blackburn, and Deb Fischer
on May 7, 2020;
 the Public Health Emergency Privacy Act (PHEPA), companion bills S. 3749 and H.R.
6866, introduced, respectively, by Senators Richard Blumenthal and Mark Warner and
Representatives Anna Eshoo, Janice Schakowsky, Suzan DelBene, Yvette Clarke, G.K.
Butterfield, and Tony Cardenas on May 14, 2020; and
 the Exposure Notification Privacy Act (ENPA), S. 3861, introduced by Senators Maria
Cantwell and Bill Cassidy on June 1, 2020.
This Sidebar describes the main components of each bill and examines key differences among the
proposals before identifying several issues for Congress. For a general background on contact-tracing
technology, see CRS In Focus IF11559, Digital Contact Tracing Technology: Overview and
Considerations for Implementation, by Patricia Moloney Figliola. For a discussion of Congress’s
authority to regulate the privacy of state-collected contact-tracing data, see CRS Legal Sidebar
LSB10502, Constitutional Authority to Regulate the Privacy of State-Collected Contact-Tracing Data, by
Edward C. Liu. For an overview of existing federal privacy laws, see CRS Report R45631, Data
Protection Law: An Overview, by Stephen P. Mulligan and Chris D. Linebaugh. For a comparison of
general data privacy legislation in the 116th Congress, see CRS Legal Sidebar LSB10441, Watching the
Watchers: A Comparison of Privacy Bills in the 116th Congress, by Jonathan M. Gaffney.
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Key Provisions and Major Differences
The CCDPA, PHEPA, and ENPA would each take a similar approach to regulating contact-tracing data.
Under each bill, a covered entity would have to take certain steps before and after collecting covered data,
and each bill would grant certain rights to individuals over collected data. In addition, each bill would
create enforcement mechanisms to ensure covered entities comply with their obligations with respect to
covered data. But the bills contain several major differences, including the types of entities they cover and
the precise rights they afford to individuals. While the CCDPA and PHEPA apply specifically to the
current COVID-19 pandemic, the ENPA is not limited to the current public health emergency. The ENPA,
however, applies only to data collected by an automated exposure notification service, which it defines as
a tool for “digitally notifying, in an automated manner, an individual who may have become exposed to
an infectious disease.” The key provisions of each bill are discussed below, and Table 1 summarizes their
main differences.
Covered Data
Each bill would generally protect specific categories of data collected or used for contact-tracing or
exposure notification. The CCDPA would apply to the narrowest set of data: “precise geolocation data,
proximity data, a persistent identifier”—information that can be used to identify a user over time—“and
personal health information.” In contrast, the ENPA would protect any information linked or reasonably
linkable to any individual or device collected, processed, or transferred as part of an automated exposure
notification service. Each of the bills would also exclude certain data, including aggregate data that
cannot identify a specific individual. The CCDPA would also exclude data collected by a covered entity
concerning anyone “permitted to enter a physical site of operation” of the entity, including employees,
vendors, and visitors.
Covered Entities
Each bill generally applies to entities that engage in contact-tracing or exposure notification or that
develop tools that other entities use for contact-tracing or exposure notification. Under the CCDPA and
ENPA, for example, a covered entity would include any entity or person engaged in a covered activity that
is (1) subject to regulation by the Federal Trade Commission (FTC), (2) a common carrier as defined in
the Communications Act of 1934, or (3) a nonprofit organization. The CCDPA does not apply to service
providers that transfer or process data on behalf of covered entities but do not themselves collect covered
data. The PHEPA would cover a broader range of entities, including government entities, but excluding
health care providers, public health authorities, service providers, and persons acting in their individual or
household capacity.
Covered Entities’ Obligations
The bills would each impose obligations on covered entities with respect to covered data. Each bill would
require a covered entity to
 not disclose or transfer an individual’s data for any purposes other than those enumerated
in the bills (CCDPA § 3(a), (b); PHEPA § 3(a), (c); ENPA § 5);
 publish a privacy policy to provide notice as to the type of data the entity collects, the
purpose of the collection, how the entity will use collected data, and an individual’s rights
with respect to the data (CCDPA § 3(c)(1); PHEPA § 3(e); ENPA § 4(b));
 obtain an individual’s affirmative express consent before collecting that individual’s data
(CCDPA § 3(a); PHEPA § 3(d)(1); ENPA § 4(a));

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 provide an individual with the right to opt out of collection by withdrawing consent
(CCDPA § 3(d); PHEPA § 3(d)(2); ENPA § 4(a)(1)(B));
 delete an individual’s data on request or after a set period, such as the end of the COVID-
19 emergency under the PHEPA or on a 30-day rolling basis under the ENPA (CCDPA
§ 3(e); PHEPA § 3(g); ENPA § 6); and
 safeguard an individual’s data by adopting appropriate data security measures (CCDPA
§ 3(h); PHEPA § 3(b); ENPA § 7).
Along with these obligations present in all three bills, there are several additional protections common to
two of the three bills. For example, both the CCDPA and PHEPA require covered entities to minimize the
data they collect and to provide a mechanism for an individual to correct inaccurate data. Also of note, the
PHEPA and ENPA prohibit discrimination against an individual based on covered data.
Enforcement
All three bills would vest enforcement with the FTC through agency and judicial proceedings. The bills
would also allow state attorneys general to enforce the bills’ provisions in court. The PHEPA would
provide a new private right of action that would allow individuals to sue covered entities for violations.
And the ENPA would preserve an individual’s ability to use existing remedies under federal or state law
to enforce its provisions.
Relationship to State Laws
Both the PHEPA and ENPA explicitly provide that their provisions would not preempt or supersede any
state laws. In contrast, the CCDPA would prohibit states from adopting or enforcing any laws or
regulations governing the use of covered data.
Table 1. COVID-19 Data Privacy Bills: Comparison of Key Differences
PHEPA, S. 3749
Provision
CCDPA, S. 3663
and H.R. 6866
ENPA, S. 3861
Covered Data—

In general
Covered data: “precise
Emergency health data: “data
Covered data: “any information
geolocation data, proximity
linked or reasonably linkable to
that is . . . linked or reasonably
data, a persistent identifier, and
an individual or device,
linkable to an individual . . .
personal health information”
including [derived] data . . . that col ected, processed, or
(§ 2(6)(a))
concerns the COVID-19 health transferred in connection with
emergency” (§ 2(8))
an automated exposure
notification service” (§ 2(6))
Exclusions
Aggregate data, business
Data that is not “linked or
Data that is not “linked or
contact information, de-
reasonably linkable” to an
reasonably linkable” to an
identified data, employee
individual or device (§ 2(8))
individual or device, including
screening data, and publicly
aggregate data (§ 2(6))
available information
(§ 2(6)(b)); data related to
individuals permitted to enter a
covered entity’s physical
location (§ 2(12))

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PHEPA, S. 3749
Provision
CCDPA, S. 3663
and H.R. 6866
ENPA, S. 3861
Covered Entities—

In General
Any entity or person engaged
Any entity or person engaged
An operator of an automated
in contact tracing that is
in contact tracing, including
exposure notification service
subject to the FTC Act, a
government entities (§ 2(4)(A))
that is subject to the FTC Act,
common carrier, or a nonprofit
a common carrier, or a
(§ 2(7))
nonprofit (§§ 2(11), 10(a)(4))
Exclusions
Service providers (§ 2(7)(C))
Health care providers; persons
Public health authorities
engaged in de minimis
(§ 2(11))
col ection; service providers;
persons acting in their
individual or household
capacity; and public health
authorities (§ 2(4)(B))
Non-Discrimination
No protections
Covered entities must adopt
Prohibits discrimination by any
reasonable safeguards against
person or entity based on
discrimination (§ 3(a)(3));
covered data (§ 8)
government entities may not
use data to interfere with
voting rights (§ 4)
Enforcement
FTC; state attorneys general
FTC; state attorneys general;
FTC; state attorneys general;
(§ 4(a), (c))
new private right of action (§ 6) existing private rights of action
(§ 10)
Preemption
Preempts state laws and
Adopts reasonable safeguards
Does not “preempt, displace,
regulations governing covered
to prevent unlawful
or supplant” state laws
entities’ use of covered data
discrimination on the basis of
(§ 10(c))
(§ 4(b)(3))
emergency health data, but
does not “preempt or
supersede” other federal or
state laws or regulations (§ 7)
Effective Period
Date of enactment through the
Thirty days after enactment
Indefinitely, beginning on the
last day of the COVID-19
through the end of the
date of enactment (§ 10(g))
public health emergency
COVID-19 public health
(§ 2(8))
emergency (§§ 2(13), 8)
Source: Created by CRS using information from CCDPA, S. 3663; PHEPA, S. 3749 and H.R. 6866; and ENPA, S. 3861.
Considerations for Congress
As state and local authorities consider whether to implement digital contact tracing or exposure
notification to combat the COVID-19 pandemic, Congress may consider whether to enact a law
governing the use of contact-tracing data to ensure uniformity and safeguard individuals’ personal data. If
Congress takes no action, digital contact-tracing and exposure notification solutions may be subject to
existing federal and state privacy protections, including the Health Insurance Portability and
Accountability Act (HIPAA) regulations and the California Consumer Privacy Act (CCPA). But existing
federal privacy laws do not protect all contact-tracing data, and state laws—where they exist—impose a
patchwork of requirements.
The CCDPA, PHEPA, and ENPA share a number of common provisions, suggesting some level of accord
on how to regulate entities engaged in contact tracing. But the differences among the bills could make it
difficult to reach agreement on final legislation. Two of the biggest divergences among the bills—whether
to include a private right of action and whether to preempt state law—mirror differences in general data

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privacy bills introduced at the end of 2019 and earlier this year. Those provisions were “key sticking
point[s]” in the debate over general-applicability data privacy legislation, and Congress has yet to reach a
consensus. To move forward with a contact-tracing privacy bill, Congress may have to reach a
compromise with respect to these issues.

Author Information

Jonathan M. Gaffney

Legislative Attorney

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