Digital Contact Tracing and Data Protection Law

Digital Contact Tracing and Data Protection Law

Digital Contact Tracing and
September 24, 2020
Data Protection Law
Jonathan M. Gaffney
Coronavirus Disease 2019 (COVID-19) has infected millions of Americans since the ongoing
Legislative Attorney
pandemic began, and the disease has caused many thousands of deaths across the country.

Government officials attempting to slow the spread of COVID-19 have implemented a number of
Eric N. Holmes
responses, including widespread stay-at-home orders, travel advisories, and an increase in testing.
Legislative Attorney
State and local public health authorities are also making use of public health investigation

techniques to ascertain how the disease has spread. One such technique is contact tracing, a
process by which public health investigators identify individuals who have come into contact
Chris D. Linebaugh
with infected persons.
Legislative Attorney

Officials and technology companies have suggested that contact tracing may be accomplished
more quickly and easily with the assistance of digital tools. For example, digital technology

might assist with tracking individual movements and encounters using information collected
from mobile devices. However, public health authorities’ use of digital tools capable of collecting individual information also
raises concerns about how to preserve the privacy and security of that data.
This report will discuss how data privacy and security (together, data protection) law applies to a public health authority’s use
of digital contact tracing tools. The report begins with a discussion of contact tracing, the role of technology in assisting with
contact tracing, and potential privacy concerns. The second section of the report details key federal privacy laws —the Health
Insurance Portability and Accountability Act, the Communications Act, the Family Educational Rights and Privacy Act, the
Children’s Online Privacy Protection Act, the Privacy Act, the Electronic Communications Privacy Act, and the Federal
Trade Commission Act—and discusses what rights and obligations these laws may create for users and providers of digital
contact tracing tools. Next, the report reviews selected state and foreign data protection laws and their application to digital
contact tracing. The report concludes by providing an overview of data protection bills introduced in the 116th Congress in
response to the COVID-19 pandemic and discussing some considerations for Congress as it weighs such legislation.
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Contents
Background.................................................................................................................... 2
Introduction to Contact Tracing ................................................................................... 2
Digital Tools ............................................................................................................. 2
Concerns and Issues ................................................................................................... 3
Federal Data Protection Laws and Digital Contact Tracing .................................................... 4
The Health Insurance Portability and Accountability Act (HIPAA) .................................... 5
Overview of the HIPAA Data Protection Rules ......................................................... 5
The HIPAA Data Protection Rules and Digital Contact Tracing ................................... 7
Other Federal Data Protection Laws ............................................................................. 9
The Communications Act .................................................................................... 10
Family Educational Rights and Privacy Act (FERPA) .............................................. 11
Children’s Online Privacy Protection Act (COPPA) ................................................. 13
The Privacy Act ................................................................................................. 16
Electronic Communications Privacy Act (ECPA)..................................................... 17
The Federal Trade Commission Act....................................................................... 20
Selected State, Foreign, and International Data Protection Laws ........................................... 22
California ............................................................................................................... 23
Scope of the CCPA ............................................................................................. 23
Consumer Rights................................................................................................ 24
Business Obligations........................................................................................... 24
Enforcement ...................................................................................................... 25
CCPA and Contact Tracing .................................................................................. 25
Canada................................................................................................................... 26
Canada’s Privacy Act .......................................................................................... 26
PIPEDA............................................................................................................ 27
Digital Contact Tracing in Canada ........................................................................ 29
European Union ...................................................................................................... 30
Scope of the GDPR ............................................................................................ 30
Data Controllers’ and Processors’ Obligations ......................................................... 31
Individual Rights................................................................................................ 32
Enforcement ...................................................................................................... 32
Contact Tracing and the GDPR............................................................................. 33
Legislation in the 116th Congress ..................................................................................... 33
Key Provisions and Major Differences ........................................................................ 34
Covered Data..................................................................................................... 35
Covered Entities................................................................................................. 35
Covered Entities’ Obligations ............................................................................... 35
Enforcement ...................................................................................................... 36
Relationship to State Laws................................................................................... 37
Considerations for Congress ........................................................................................... 40

Tables
Table 1.COVID-19 Data Privacy Bills: Comparison of Main Differences............................... 38
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Appendixes
Appendix A. Digital Contact Tracing Apps By State ........................................................... 42

Contacts
Author Information ....................................................................................................... 42

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oronavirus Disease 2019 (COVID-19) has infected mil ions of Americans since the
ongoing pandemic began, and the disease has caused many thousands of deaths across the
C country. Government officials attempting to slow the spread of COVID-19 have
implemented a number of responses, including widespread stay-at-home orders,1 travel
advisories,2 and an increase in testing.3 State and local public health authorities are also making
use of public health investigation techniques to ascertain how the disease has spread. One such
technique is contact tracing, a process by which public health investigators identify individuals
who have come into contact with infected persons.
Officials and technology companies have suggested that contact tracing may be accomplished
more quickly and easily with the assistance of digital tools. For example, digital technology might
assist with tracking individual movements and encounters using information collected from
mobile devices. However, public health authorities’ use of digital tools capable of collecting
individual information also raises concerns about how to preserve the privacy and security of that
data.
This report discusses how data privacy and security laws (together, data protection laws4) apply to
digital contact tracing tools used by a public health authority or its agents. In the first section, the
report discusses contact tracing and how technology has evolved to assist in this activity.5 It
includes, in particular, a description of the main types of mobile contact tracing applications
(apps) that have been developed thus far—namely, “location tracking” apps and “proximity
tracking” apps.6 It then lays out some privacy concerns raised by privacy advocates and describes
the ways in which these app developers have responded to the concerns.7
In the second section, the report describes existing federal data protection laws and their
application to digital contact tracing. Rather than a single overarching federal data protection law,
the United States has a “patchwork” of various federal laws governing privacy and security
practices.8 These include, for example, the Health Insurance Portability and Accountability Act,
which limits healthcare entities’ use of health information; the Communications Act, which limits
phone carriers’ use of customer data; and the Federal Trade Commission Act, which prohibits
companies from engaging in deceptive or unfair data protection practices.9 This section focuses in
particular on whether these laws apply to digital contact tracing activities at al , and, to the extent
they do, the limitations they impose on the ability of public health authorities to collect and use
digital contact tracing data.

1 Jasmine C. Lee, Sarah Mervosh, Yuriria Avila, Barbara Harvey, & Alex Leeds Matthews, See How All 50 States Are
Reopening (And Closing Again), N.Y. T IMES, https://www.nytimes.com/interactive/2020/us/states-reopen-map-
coronavirus.html (last visited Aug. 17, 2020).
2 E.g., COVID-19 Travel Advisory, OHIO DEP’T OF HEALTH, https://coronavirus.ohio.gov/wps/portal/gov/covid-
19/families-and-individuals/COVID-19-T ravel-Advisory/ (last visited Aug. 17, 2020); COVID-19 Travel Advisory,
N.Y. DEP ’T OF HEALTH, https://coronavirus.health.ny.gov/covid-19-travel-advisory (last visited Aug. 17, 2020); NJ
Travel Advisory Form , NJ.GOV, https://covid19.nj.gov/forms/njtravel (last visited Aug. 17, 2020).
3 See COVID T RACKING PROJECT, https://covidtracking.com/ (last visited Aug. 17, 2020).
4 For a further discussion of the concept of data protection, see CRS Report R45631, Data Protection Law: An
Overview, by Stephen P. Mulligan and Chris D. Linebaugh .
5 See infra “Background.”
6 See infra “Digital T ools.”
7 See infra “Concerns and Issues.”
8 See infra “Federal Data Protection Laws and Digital Contact T racing.”
9 Id.
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The third section of the report discusses some state and foreign data protection laws and their
application to digital contact tracing, specifical y, the California Consumer Privacy Act (CCPA),
Canada’s federal privacy laws, and the European Union’s General Data Protection Regulation
(GDPR).10 These laws are noteworthy because they apply to many American companies and also
provide a point of comparison with the patchwork of laws at the federal level. Final y, this report
concludes with an overview of the data protection bil s that have been introduced in the 116th
Congress in response to the COVID-19 pandemic and discusses some considerations for
Congress as it considers proposed legislation.11
Background
Introduction to Contact Tracing
The term contact tracing general y refers to procedures used to identify and monitor people who
have been in contact with someone diagnosed with an infectious disease, and thus facilitate
implementing targeted control measures (such as quarantines) to prevent the broader spread of the
il ness. Contact tracing is standard procedure in public health investigations, and historical y
involves officials interviewing and contacting infected and potential y-exposed persons. State and
local health departments (“health departments” or “public health authorities”) traditional y
conduct contact tracing, rather than federal authorities.12 However, the Centers for Disease
Control and Prevention (CDC) has published guidance for health departments conducting contact
tracing.13 For more detail on contact tracing in response to COVID-19, see CRS In Focus
IF11609, Contact Tracing for COVID-19: Domestic Policy Issues, by Kavya Sekar and Laurie A.
Harris.
Digital Tools
Manual contact tracing—which entails several iterations of interviews, exposure notification to
potential y affected individuals, and contact follow-up—may be too slow to keep pace with
COVID-19’s spread.14 Consequently, technologists have been working to develop digital contact-
tracing tools to supplement traditional contact tracing activities.15
Digital contact tracing or digital exposure notification refers to the use of technology to identify
and notify individuals who may have come into contact with a person who has tested positive for
COVID-19—functions which, in traditional contact tracing, would be performed by a public

10 See infra “Selected State, Foreign, and International Data Protection Laws.”
11 See infra “Legislation” and “Considerations for Congress.”
12 See CRS Report R43809, Preventing the Introduction and Spread of Ebola in the United States: Frequently Asked
Questions, coordinated by Sarah A. Lister (detailing state and local roles in monitoring disease outbreaks in the context
of the Ebola virus).
13 Contact Tracing for COVID-19, CTRS. FOR DISEASE CONTROL & PREVENTION (Sept. 10, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/contact-tracing.html.
14 ASS’N OF STATE & T ERRITORIAL HEALTH OFFS., ISSUE GUIDE: COVID-19 CASE INVESTIGATION AND CONTACT
T RACING: CONSIDERATIONS FOR USING DIGITAL TECHNOLOGIES 4 (2020) [hereinafter AST HO], https://www.astho.org/
AST HOReports/COVID-19-Case-Investigation-and-Contact-Tracing-Considerations-for-Using-Digital-
T echnologies/07-16-20/; see also Jennifer Steinhauer & Abby Goodnough, Contact Tracing Is Failing in Many States.
Here’s Why, N.Y. T IMES (July 31, 2020), https://www.nytimes.com/2020/07/31/health/covid-contact-tracing-tests.html.
15 CRS In Focus IF11609, Contact Tracing for COVID-19: Domestic Policy Issues, by Kavya Sekar and Laurie A.
Harris.
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health investigator during and after interviews with infected or presumptively infected
individuals.16 Public health authorities have turned to both private and public entities to support
development of these technologies. Certain emergent digital contact tracing and exposure
notification technologies can support these functions by gathering data from mobile devices
running mobile applications (apps).
 Digital contact tracing or “location tracking” apps trace a mobile device’s
movement using location information, such as global positioning system (GPS)
or cel site location information.17
 Digital exposure notification or “proximity tracking” apps receive and transmit
device identifiers using Bluetooth technology when two devices with the app
remain in close proximity to each other for a specific amount of time.18
Both of these app types use the data they collect to determine whether app users have come into
contact with other app users, though proximity tracking apps do so without using any location
information.19 Examples of location tracking apps include Rhode Island’s CRUSH COVID RI
app and apps based on MIT’s Safe Paths app.20 Proximity tracking apps include those built on
Google and Apple’s exposure notification system, such as Virginia’s COVIDWISE app.21
Appendix A includes a current list of state apps. For more information on the technical
development and implementation of digital contact-tracing tools, see CRS In Focus IF11559,
Digital Contact Tracing Technology: Overview and Considerations for Implementation, by
Patricia Moloney Figliola.
Concerns and Issues
Digital contact-tracing tools have the potential to collect information capable of identifying
individuals. Indeed, for proximity or location tracking apps to function, the apps must be able to
associate an individual’s positive COVID-19 diagnosis with that individual’s unique identifiers or
location history. Privacy advocates have therefore expressed concern about the privacy and
security of any information collected by digital contact-tracing tools.22 The implementation of
these tools raises two types of privacy risks: unwanted access to information by government

16 AST HO, supra note 14, at 6; see JOSEPH ALI ET AL., DIGITAL CONTACT T RACING FOR PANDEMIC RESPONSE 3-4
(Jeffrey P. Kahn ed., 2020), https://muse.jhu.edu/book/75831/pdf.
17 See Patrick Howell O’Neill et al., COVID Tracing Tracker, MIT T ECH. REV. (May 7, 2020),
https://www.technologyreview.com/2020/05/07/1000961/launching-mittr-covid-tracing-tracker/.
18 Id.
19 Id. For readability, this report will refer to both app types as “digital contact tracing” throughout.
20 CRUSH COVID RI, R.I. DEP’T OF HEALTH, https://health.ri.gov/covid/crush/ (last visited Sept. 22, 2020); Private
Kit: Safe Paths; Privacy-By-Design, MIT .EDU, https://safepaths.mit.edu (last visited Sept. 22, 2020); see also The
PathCheck GPS+ Solution, PATHCHECK FOUND., https://pathcheck.org/en/technology/gps-digital-contact-tracing-
solution (last visited Sept. 22, 2020).
21 Privacy-Preserving Contact Tracing, APPLE, https://www.apple.com/covid19/contacttracing (last visited Sept. 22,
2020); see Sarah McCammon, Virginia Unveils App to Aid Contact Tracing , NPR (Aug 5, 2020),
https://www.npr.org/sections/coronavirus-live-updates/2020/08/05/899414953/virginia-unveils-app-to-aid-contact-
tracing.
22 See, e.g., DANIEL KAHN GILLMOR, ACLU, PRINCIPLES FOR TECHNOLOGY-ASSISTED CONTACT T RACING (2020),
https://www.aclu.org/sites/default/files/field_document/aclu_white_paper_ -_contact_tracing_principles.pdf (asserting
that digital contact tracing tools may cause “ significant risks to privacy, civil rights, and civil liberties”); Mark Zastrow,
South Korea Is Reporting Intim ate Details of COVID-19 Cases: Has It Helped? NATURE (Mar. 18, 2020),
https://www.nature.com/articles/d41586-020-00740-y (noting that South Korea’s extensive data collection “ has raised
privacy concerns” by allowing infected people to be identified).
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actors, such as law enforcement,23 and unwanted access to information by private actors, such as
third-party advertisers.24 Even if public health authorities do not voluntarily share identifiable
information with third parties, digital contact-tracing tools may be susceptible to security
breaches or misuse, with the risks of these harms increasing as apps collect more information.25
Technologists have responded to these risks by attempting to build privacy protections into digital
contact-tracing tools.26 Many of these built-in protections implement recommendations made by
privacy advocates, such as storing data local y and using identifiers that change at regular
intervals.27 Privacy advocates have responded more positively to proximity tracking apps, which
are general y seen as less intrusive than location tracking apps because they record only that two
devices have been in proximity to each other at some point, rather than the geographical location
of a specific device at a particular time.28
Federal Data Protection Laws and Digital Contact
Tracing
In contrast to the European Union—which, as discussed later, has a comprehensive privacy law—
the United States has a patchwork of federal laws that govern data protection practices.29 Many of
these laws are discussed in detail in CRS Report R45631, Data Protection Law: An Overview.
Consequently, rather than providing a complete overview of federal data protection law, this
section surveys those federal laws most relevant to digital contact tracing. This section begins
with a discussion of the Health Insurance Portability and Accountability Act’s (HIPAA) data
protection requirements, which are the main federal rules governing the privacy and security of

23 E.g., Matthew Guariglia, The Dangers of COVID-19 Surveillance Proposals to the Future of Protest, ELEC.
FRONTIER FOUND. (Apr. 29, 2020), https://www.eff.org/deeplinks/2020/04/some-covid-19-surveillance-proposals-
could-harm-free-speech-after-covid-19 (warning of the danger of “ surveillance creep”); Mike Giglio, Would You
Sacrifice Your Privacy to Get out of Quarantine? ATLANTIC (Apr. 22, 2020), https://www.theatlantic.com/
politics/archive/2020/04/coronavirus-pandemic-privacy-civil-liberties-911/609172/ (same). T his risk is largely outside
the scope of this report, and some risk of unwanted law enforcement access may be mitigated by the prot ections of the
Fourth Amendment. For more information on the potential application of Fourth Amendment protections to digital
contact tracing, see CRS Legal Sidebar LSB10449, COVID-19, Digital Surveillance, and Privacy: Fourth Am endm ent
Considerations, by Michael A. Foster.
24 E.g., Stephen Groves, Tech Privacy Firm Warns Contact Tracing App Violates Policy, ASSOCIATED PRESS (May 22,
2020), https://apnews.com/03f2756664184cf1789c9b970beb7111 (reporting that an app used by North Dakota and
South Dakota shared user information with third parties).
25 E.g., Natasha Singer, Virus-Tracing Apps Are Rife with Problems. Governments Are Rushing to Fix Them, N.Y.
T IMES (July 8, 2020), https://www.nytimes.com/2020/07/08/technology/virus-tracing-apps-privacy.html (detailing
security flaws in contact tracing apps); Joint Statem ent on Contact Tracing for Norway, MEDIUM (May 19, 2020),
https://medium.com/@jointstatementnorway/joint-statement-on-contact-tracing-for-norway-331ee49fc6f6 (averring
that the amount of information collected by Norway’s contact tracing app could allow “bad actor[s]” to spy on
Norwegian citizens).
26 See Privacy-Preserving Contact Tracing, APPLE, https://www.apple.com/covid19/contacttracing (last visited Sept.
22, 2020) (detailing the properties of the Apple-Google framework that protect individuals’ privacy).
27 Compare id. with KAHN GILLMOR, supra note 22, at 6 (setting forth recommendations for contact tracing tools).
28 E.g., Geoffrey A. Fowler, I Downloaded America’s First Coronavirus Exposure App. You Should Too , WASH. POST
(Aug 18, 2020), https://www.washingtonpost.com/technology/2020/08/17/coronavirus-exposure-notification-app/;
ACLU Com m ent on Apple/Google COVID-19 Contact Tracing Effort, ACLU (Apr. 10, 2020),
https://www.aclu.org/press-releases/aclu-comment -applegoogle-covid-19-contact -tracing-effort.
29 For further discussion of the concept of data protection, see CRS Report R45631, Data Protection Law: An
Overview, by Stephen P. Mulligan and Chris D. Linebaugh .
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health information stored or collected by healthcare entities.30 It then surveys other federal laws
that may apply to contact tracing, starting with those more targeted in scope and concluding with
more broadly applicable laws.
The Health Insurance Portability and Accountability Act (HIPAA)
Pursuant to its authority under the Health Insurance Portability and Accountability Act
(HIPAA),31 the Department of Health and Human Services (HHS) has enacted data protection
regulations known as the Privacy, Security, and Breach Notification Rules, which this report wil
collectively cal the HIPAA Data Protection Rules.32 The HIPAA Data Protection Rules are the
primary federal data protection provisions regulating personal health information.33 This section
first provides an overview of the HIPAA Data Protection Rules’ requirements and then analyzes
how these requirements apply to digital contact tracing.
Overview of the HIPAA Data Protection Rules
Covered Entities and Business Associates
The HIPAA Data Protection Rules regulate the use, disclosure, and security of protected health
information (PHI) by covered entities and their business associates.34 Covered entities include
health plans, health care clearinghouses, and health care providers who transmit electronic
health information in connection with a HIPAA-covered transaction (such as bil ing).35 A health
plan is an “individual or group plan that provides, or pays the cost of, medical care.”36 This
includes health insurance companies, health maintenance organizations, and government
programs—such as Medicaid and Medicare—that pay for health care.37 Health care
clearinghouses are entities that process health information from a nonstandard format into a
standard format, or vice versa.38 Lastly, health care providers include providers of services
covered by Sections 1861(u) or 1861(s) of the Social Security Act (which includes, among other
things, physicians’ services, hospital services, physical therapy services, and skil ed nursing
facility services) or any person who otherwise “furnishes, bil s, or is paid for health care in the
normal course of business.”39 Health care is “care, services, or supplies related to the health of an

30 42 U.S.C. § 1320d-2; 45 C.F.R. pt. 164.
31 42 U.S.C. § 1320d-2.
32 45 C.F.R. pt. 164; see also CTRS. FOR MEDICARE & MEDICAID SERVS., HIPAA BASICS FOR PROVIDERS: PRIVACY,
SECURITY, AND BREACH NOTIFICATION RULES (Sept . 2018), https://www.cms.gov/outreach-and-education/medicare-
learning-network-mln/mlnproducts/downloads/hipaaprivacyandsecuritytextonly.pdf .
33 In re Mitchell, No. 18-40736, 2019 WL 1054715, at *5 (Bankr. D. Idaho Mar. 5, 2019) (“HIPAA is the primary
federal law passed to ensure an individual’s right to privacy over his or her medical records . . . .”).
34 45 C.F.R. § 164.104.
35 Id. § 160.103. HIPAA-covered transactions include transactions related to payments and remittance advice, claims
status, eligibility, coordination of benefits, claims and encounter information, enrollment and disenrollment, referrals
and authorizations, and premium payment. Transactions Overview, CTRS. FOR MEDICARE & MEDICAID SERVS.,
https://www.cms.gov/Regulations-and-Guidance/Administrative-Simplification/T ransactions/T ransactionsOverview
(last visited Sept. 22, 2020).
36 45 C.F.R. § 160.103.
37 Covered Entities and Business Associates, U.S. DEP’T OF HEALTH & HUMAN SERVS., https://www.hhs.gov/hipaa/for-
professionals/covered-entities/index.html (last visited Sept. 22, 2020).
38 45 C.F.R. § 160.103.
39 Id.; 42 U.S.C. § 1395x(u), (s).
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individual.”40 A business associate is one who, among other actions, “creates, receives, maintains,
or transmits protected health information” on behalf of a covered entity for an activity regulated
under HIPAA general y (not simply the Data Protection Rules), such as claims processing, data
analysis, processing or administration, utilization review, quality assurance, bil ing, benefit
management, practice management, and repricing.41
The HIPAA Data Protection Rules recognize that entities may engage in conduct that makes them
covered entities (covered functions), while, at the same time, performing other functions that do
not render them covered entities. For instance, institutions of higher learning may, in addition to
providing education, run a health clinic that provides healthcare for students.42 Such an entity
may become a “hybrid entity” by complying with organizational requirements that include
designating a specific component of its organization as the “health care component.”43 In such
situations, only the designated health care component of a hybrid entity is required to comply
with the HIPAA Data Protection Rules.44
Substantive Requirements
The HIPAA Data Protection Rules’ substantive requirements govern covered entities’ treatment of
PHI. PHI includes information that (1) “identifies,” or can reasonably “be used to identify,” an
individual; (2) is “created or received by a health care provider, health plan, employer, or health
care clearinghouse”; (3) relates to an individual’s past, present, or future physical or mental
health, health care provision, or payment for the provision of health care; and (4) is transmitted by
or maintained in electronic or any other form or medium.45
The HIPAA Data Protection Rules address, among other things, covered entities’: (1) use or
sharing of PHI, (2) safeguards for securing PHI, and (3) notification of consumers following a
breach of PHI records. On the first issue, HIPAA’s Data Protection Rules prohibit covered
entities from using PHI or sharing it with third parties without valid patient authorization, unless
the use is for purposes of treatment, payment, or “health care operations,” or fal s within a
specific statutory exception.46 One such exception, which is particularly relevant to contact
tracing al ows covered entities to use or disclose PHI—without individual patient authorization or
the opportunity for the patient to agree or object—to “a public health authority” that is legal y
authorized to collect the information “for the purpose of preventing or controlling disease, injury,
or disability,” including “the conduct of public health surveil ance.”47 A “public health authority”

40 45 C.F.R. § 160.103.
41 Id.
42 Can A Postsecondary Institution Be A “hybrid entity” under the HIPAA Privacy Rule? U.S. DEP’T OF HEALTH &
HUMAN SERVS. (Nov. 25, 2008), https://www.hhs.gov/hipaa/for-professionals/faq/522/can-a-postsecondary-institution-
be-a-hybrid-entity-under-hipaa/index.html.
43 Id.; 45 C.F.R. §§ 164.103, 164.105.
44 45 C.F.R. § 164.105(a)(1).
45 Id. § 160.103.
46 Id. §§ 164.506–512. “Health care operations” are defined as including a number of activities, such as: (1)
“[c]onducting quality assessment and improvement activities”; (2) evaluating healthcare professionals and health plan
performance; (3) underwriting and “ other activities related to the creation, renewal, or replacement” of health insurance
or health benefits contracts; (4) “conducting or arranging for medical review, legal services, and auditing functions,
including fraud and abuse detection and compliance programs”; (5) business planning and development, such as
“conducting cost-management and planning-related analyses related to managing and operating the entity”; and (6)
“business management and general administrative activities of the entity.” Id. § 164.501.
47 Id. § 164.512(b).
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includes any agency or authority of the “United States, a State, a territory, a political subdivision
of a State or territory, or an Indian tribe,” that is “responsible for public health matters as part of
its official mandate,” as wel as “a person or entity acting under a grant of authority from or
contract with” such an agency.48 This definition encompasses the CDC as wel as state and local
public health departments, among others.49 With respect to data security, covered entities must
maintain various administrative, physical, and technical safeguards to protect against threats or
hazards to the security of PHI.50 Lastly, under the data breach notification requirements, covered
entities must, among other things, notify affected individuals within 60 calendar days after
discovering a breach of “unsecured” PHI.51
Enforcement
Violations of the HIPAA Data Protection Rules can lead to civil or criminal enforcement. The
HHS Office of Civil Rights is responsible for investigating and enforcing civil violations of
HIPAA’s requirements and may impose monetary penalties, which vary depending on the
violator’s culpability.52 The U.S. Department of Justice has criminal enforcement authority under
HIPAA and may seek fines or imprisonment against a person who “knowingly” obtains or
discloses “individual y identifiable health information” (as defined below) or “uses or causes to
be used a unique health identifier” in violation of HIPAA’s requirements.53
The HIPAA Data Protection Rules and Digital Contact Tracing
As noted, the HIPAA Data Protection Rules do not apply to al health-related data. Only PHI held
by covered entities and their business associates is subject to the Rules’ requirements. Thus, the
extent to which the Rules apply to digital-contact tracing applications depends on whether the
parties developing the apps and processing app information fal within the definitions of covered
entities or business associates and whether the app uses PHI.

48 Id. § 164.501.
49 Disclosures for Public Health Activities, U.S. DEP’T OF HEALTH & HUMAN SERVS., https://www.hhs.gov/hipaa/for-
professionals/privacy/guidance/disclosures-public-health-activities/index.html (last visited Sept. 22, 2020).
50 45 C.F.R. §§ 164.302–318.
51 Id. §§ 164.400–414. Unsecured PHI is defined as PHI that is “not rendered unusable, unreadable, or indecipherable
to unauthorized persons through the use of a technology or methodology specified by the Secretary . . . .” Id. § 164.402.
HIPAA regulations define a “ breach” as the “ acquisition, access, use, or disclosure of protected health information in a
manner not permitted under [HIPAA’s privacy regulations] which compromises the security or privacy of the protected
health information.” Id. T his definition contains several exclusions, including where the covered entity has a “good
faith belief that an unauthorized person to whom the disclosure was made would not reasonably have been able to
retain such information.” Id.
52 42 U.S.C. § 1320d-5; 45 C.F.R. § 160.404. T he amounts range from $100 per violation (with a total maximum of
$25,000 per year for identical violations) up to $50,000 per violation (with a total maximum of $1,500,000 per year for
identical violations). 45 C.F.R. § 160.404(b). T he low-end of the penalty spectrum applies when the offender “ did not
know and, by exercising reasonable diligence, would not have known” of the violation, and the high -end of the penalty
spectrum applies when “it is established that the violation was due to willful neglect and was not corrected during the
30-day period beginning on the first date the covered entity or business associate liable for the penalty knew, or by
exercising reasonable diligence, would have known that the violation occurred.” Id.
53 42 U.S.C. § 1320d-6. See also Enforcement Process, U.S. DEP’T OF HEALTH & HUMAN SERVS. (June 7, 2017),
https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/enforcement-process/index.html (“OCR also
works in conjunction with the Department of Justice (DOJ) to refer possible violations of HIPAA.”).
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Are public health authorities or app developers Covered Entities or Business
Associates?
Because state and local public health authorities are the primary users of data collected through
contact tracing, a critical threshold issue is whether they are covered entities subject to the HIPAA
Data Protection Rules. This issue is complicated by the fact that a public health authority may
perform various functions within one agency. For example, a public health authority may provide
clinical care (e.g., diagnostic testing), and thus qualify as a health care provider subject to
HIPAA’s requirements. The same agency might also engage in community-wide or state-wide
disease control activities, such as contact tracing, that do not appear to be among the functions by
which HIPAA defines covered entities.
A health department that engages in both health care activities and disease control functions may
choose to operate as a hybrid entity. In so doing, state and local health departments may limit
their obligations under the HIPAA Data Protection Rules solely to their performance of discrete
covered healthcare functions. Any information the hybrid entity obtains for use in disease control
activities such as contact tracing would not be subject to the Rules’ protections.54 Moreover,
under the public health authority exception, PHI received by the public health authority from a
covered entity, such as a healthcare provider, would not be subject to the HIPAA Data Protection
Rules.55
Third-party software developers are not general y covered entities subject to the HIPAA Data
Protection Rules. Moreover, a third-party software developer that creates, maintains, or
administers an app used in a public health authority’s contact tracing operations would not qualify
as a business associate subject to the HIPAA Data Protection Rules if the public health authority
is not a covered entity when performing its disease control functions. This is because, as
explained above, HIPAA defines a business associate as one who “creates, receives, maintains, or
transmits protected health information” on behalf of a covered entity.56
Do contact-tracing apps use PHI?
Even if an entity is a covered entity or a business associate under HIPAA, the HIPAA Data
Protection Rules only apply to PHI. To be sure, contact-tracing apps rely on health-related
information (e.g., information that shows whether individuals have been diagnosed with, or
exposed to, COVID-19). Thus, whether HIPAA Data Protection Rules apply to entities involved
in developing and operating a contact-tracing app would largely depend on whether the
information used for digital contact tracing is individually identifiable.
HIPAA deems health information not identifiable if the covered entity takes either of two steps.57
One option is that the covered entity can de-identify the information by ensuring that eighteen
specific types of identifiers have been removed (including, for example, “[a]l geographic
subdivisions smal er than a State,” “[t]elephone numbers,” and “[d]evice identifiers”).58
Alternatively, the covered entity may obtain documentation showing that an expert has

54 45 C.F.R. § 164.105(a)(1).
55 Id. § 164.512(b).
56 Id. § 160.103.
57 Id. § 164.514(b).
58 Id. § 164.514(b)(2).
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determined that there is a “very smal ” risk of identification from the information.59 If the covered
entity chooses this approach, the HHS Office of Civil Rights may assess the expert’s
qualifications in the course of an audit or investigation.60
Many find it difficult to conceive how covered entities could make contact-tracing app
information unidentifiable. Contact-tracing apps necessarily depend on information that
accurately tracks individual movements and contacts. Both location tracking and proximity
tracking apps function by associating a person who has tested positive for a disease with a device
identifier generated by the app. In the case of location tracking apps, this includes GPS or cel site
location information, which provides geographic information much smal er than a state. Apps
could also request additional identifying information: Singapore’s app, for example, requires app
users to provide phone numbers.61 Accordingly, the most likely option by which a covered entity
could establish that the health information used for digital contact tracing is not identifiable may
be to obtain an expert determination that the risk of identification from the information is “very
smal .”62
Any such determination would likely assess the steps taken by the app to make identification
difficult. Google and Apple’s exposure notification system provides for apps that use randomly
generated identifiers, which cycle every 10–20 minutes to reduce the risk of linking any group of
identifiers to an individual.63 Location tracking apps may take similar measures to mitigate
tracking risk. For example, North Dakota’s location tracking app associates location information
with a random ID number and only stores location information when a device remains at a
location for more than ten minutes.64 However, even apps that associate information with
randomly generated identifiers may be susceptible to “linkage attacks” in which an entity might
be able to identify a particular device, and apps that collect more detailed information may
potential y pose a greater risk.65
Other Federal Data Protection Laws
While the HIPAA Data Protection Rules are the federal privacy standards most directly targeted at
health data, they are only one component of the “patchwork” of federal laws governing entities’
data protection obligations. This section surveys other relevant federal laws and discusses how
they might apply to digital contact tracing. It begins with the more targeted laws—namely, the
Communications Act, the Family Educational Rights and Privacy Act, the Children’s Online

59 Id. § 164.514(b)(1).
60 Guidance Regarding Methods for De-identification of Protected Health Information in Accordance with the Health
Insurance Portability and Accountability Act (HIPAA) Privacy Rule, U.S. DEP ’T OF HEALTH & HUMAN SERVS. (Nov. 6,
2015), https://www.hhs.gov/hipaa/for-professionals/privacy/special-topics/de-identification/index.html#expert.
61 What Data Is Collected? Are You Able to See My Personal Data? T RACETOGETHER,
https://support.tracetogether.gov.sg/hc/en-sg/articles/360043735693-What-data-is-collected-Are-you-able-to-see-my-
personal-data- (last visited Sept. 22, 2020).
62 45 C.F.R. § 164.514(b)(1).
63 APPLE INC. & GOOGLE LLC, EXPOSURE NOTIFICATION: BLUETOOTH SPECIFICATION (Apr. 2020), https://covid19-
static.cdn-apple.com/applications/covid19/current/static/contact-tracing/pdf/ExposureNotification-
BluetoothSpecificationv1.2.pdf.
64 Care19, NDRESPONSE.GOV, https://ndresponse.gov/covid-19-resources/care19 (last visited Sept. 22, 2019).
65 Simson L. Garfinkel, De-Identification of Personal Information, NAT’L INST. OF STANDARDS & TECH. 17 (Oct. 2015),
https://nvlpubs.nist.gov/nistpubs/ir/2015/NIST .IR.8053.pdf#page=25 ; Natasha Singer, Virus-Tracing Apps Are Rife
With Problem s. Governm ents are Rushing to Fix Them , N.Y. T IMES (July 8, 2020),
https://www.nytimes.com/2020/07/08/technology/virus-tracing-apps-privacy.html.
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Privacy Protection Act, and the Privacy Act. It then turns to the Electronic Communications
Privacy Act and the Federal Trade Commission Act, which are both broad in scope.
The Communications Act
The Communications Act restricts what “telecommunications carriers”—namely, landline and
mobile telephone operators66—may do with “customer proprietary network information”
(CPNI).67 CPNI includes information relating to the “quantity, technical configuration, type,
destination, location, and amount of use of a telecommunications service subscribed to by any
customer of a telecommunications carrier” and is “made available to the carrier by the customer
solely by virtue of the carrier-customer relationship.”68 Carriers may not “disclose” customers’
CPNI to third parties or give third parties “access to” CPNI without customer approval or unless
an exception in the Act applies.69 Exceptions include, among other things, disclosures to
“providers of information or database management services solely for purposes of assisting in the
delivery of emergency services in response to an emergency.”70 Carriers must also implement
various data security safeguards, such as “reasonable measures to discover and protect against
attempts to gain unauthorized access to CPNI,” and must notify law enforcement and affected
customers after a “breach” of CPNI.71
Most relevant for contact tracing, the Act’s CPNI protections may prohibit cel phone carriers
from disclosing users’ geolocation data to contact-tracing apps. While courts have not considered
whether the CPNI definition includes cel phone geolocation data, the Federal Communications
Commission (FCC) has recently taken the position in an enforcement action that it is covered.72
Even if geolocation data is CPNI, disclosing such data for contact tracing may qualify for the
exception based on contact-tracing being an “emergency service” and contact tracing apps

66 47 U.S.C. § 153(51), (52); see also United States v. Radio Corp. of Am., 358 U.S. 334, 349 (1959) (“In
contradistinction to communication by telephone and telegraph, which the Communications Act recognizes as a
common carrier activity . . . the Act recognizes that broadcasters are not common carriers and are not to be dealt with
as such.”)
67 47 U.S.C. § 222.
68 Id. § 222(h)(1). T he Act further states that CPNI includes “information contained in the bills pertaining to telephone
exchange service or telephone toll service received by a customer of a carrier,” but does not include “ subscriber list
information.” Id.
69 Id. § 222(c)–(d); 47 C.F.R. § 64.2007. T he regulations provide that, generally, customer approval must be “opt -in”
approval. 47 C.F.R. § 64.2007(b). “ Opt-in approval” requires that “ the carrier obtain from the customer affirmative,
express consent allowing the requested CPNI usage, disclosure, or access[.]” Id. § 64.2003(k). However, carriers only
need to obtain “opt-out approval” to use or disclose individually identifiable CPNI to its agents and affiliates for
marketing communications-related service. Id. § 64.2007(b). Under “ opt-out approval,” a customer is deemed to have
consented if he has “failed to object” within a specified waiting period after being provided the “appropriate
notification of the carrier’s request for consent.” Id. § 64.2003(l). Exceptions include, among other things, using or
disclosing individually identifiable CPNI to disclose “aggregate customer information,” provide or market service
offerings for services to which the customer already subscribes, or provide “ inside wiring installation, maintenance, and
repair services.” 47 U.S.C. § 222(c)–(d); 47 C.F.R. § 64.2005.
70 47 U.S.C. § 222(d); 47 C.F.R. § 64.2004(a).
71 47 C.F.R. § 64.5110; id. §§ 64.2009–.2011.
72 On February 28, 2020, the FCC issued notices of apparent liability (NAL) to AT &T , Verizon, Sprint, and T -Mobile,
alleging that they violated the Communications Act’s CPNI requirements by disclosing wireless customers’ location
information to third parties without the customers’ consent. See FED. COMMC’NS COMM., FCC PROPOSES OVER $200
MILLION IN FINES AGAINST FOUR LARGEST WIRELESS CARRIERS FOR APPARENTLY FAILING TO ADEQUATELY PROTECT
CONSUMER LOCATION DATA (Feb. 28, 2020), https://docs.fcc.gov/public/attachments/DOC-362754A1.pdf.
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serving as “providers of information or database management services [].”73 However, the scope
of this exception is unclear; neither the FCC nor courts appear to have defined the key terms—
information or database management services and emergency services—or to have otherwise
opined on the nature of this exception.
Uncertainty over how courts would treat carriers who disclose CPNI for contact tracing purposes
creates risks for carriers. Under the Communications Act, the FCC may impose a forfeiture
penalty against those who “wil fully or repeatedly” violate the Act’s requirements.74 Along with
the FCC’s civil authority, the Communications Act further imposes criminal penalties on those
who “wil fully and knowingly” violate the Act or the FCC’s implementing regulations.75 Lastly,
the Communications Act also provides a private right of action for those aggrieved by violations
of the Act’s common carrier requirements, which include the CPNI provisions.76 In such actions,
plaintiffs may seek actual damages and reasonable attorneys’ fees.77
Family Educational Rights and Privacy Act (FERPA)
As the new school year commences this fal , schools and universities may seek to work with
private sector developers or public health authorities engaging in contact tracing.78 In doing so,
any “educational agency or institution” receiving federal funds (covered entities) must comply
with the Family Educational Rights and Privacy Act of 1974 (FERPA).79 FERPA creates privacy
protections for student education records, which are defined broadly to include any “materials
which . . . contain information directly related to a student” and are “maintained by an
educational agency or institution.”80 Among other things, FERPA prohibits covered entities from
having a “policy or practice” of permitting the release of education records or “personal y
identifiable information contained therein” without the parent’s consent (or student’s consent if
the student is over 18 or attends a postsecondary institution).81 This consent requirement is

73 47 U.S.C. § 222(d)(4)(C).
74 Id. § 503(b)(1). For common carriers, forfeiture penalties may be up to $160,000 for each violation or eac h day of a
continuing violation but may not exceed $1,575,000 for any “ single act or failure to act.” Id. § 503(b)(2)(B); 47 C.F.R.
§ 1.80(b)(2).
75 Any person who “willfully and knowingly” violates the Act’s requirements may be fined up to $10,000 and
imprisoned up to one year, and anyone who “ willfully and knowingly” violates any FCC “ rule, regulation, restriction or
condition” made under the authority of the Act shall be fined up to $500 for “ each and every day during which such
offense occurs.” 47 U.S.C. §§ 501–502.
76 Id. § 206.
77 Id.
78 See, e.g., Mohana Ravindranath & Amanda Eisenberg, Contact Tracing Apps Have Been A Bust. States Bet College
Kids Can Change That, POLITICO (Aug. 19, 2020), https://www.politico.com/news/2020/08/19/contact-tracing-apps-
have-been-a-bust-states-bet-college-kids-can-change-that-398701.
79 20 U.S.C. § 1232g(a)(3).
80 Id. § 1232g(a)(4)(A). However, FERPA excludes certain things from the “education records” definition, specifically:
(1) records made by “ instructional, supervisory, and administrative personnel” that are kept “ in the sole possession of
the maker thereof and which are not accessible or revealed to any other person except a substitute ”; (2) “ records
maintained by a law enforcement unit of the educational agency or institution that were created by that law
enforcement unit for the purpose of law enforcement ”; and (3) records made or maintained by a “ physician,
psychiatrist, psychologist, or other recognized professional or paraprofessional” on a student who is “eighteen years of
age or older, or is attending an institution of postsecondary education,” that are only used “ in connection with the
provision of treatment” and are “not available to anyone other than person s providing such treatment,” except for a
“physician or other appropriate professional of the student’s choice.” Id. § 1232g(a)(4)(B).
81 Id. § 1232g(b). The right to consent transfers from the parent to the student once the student turns 18 years old or
attends a postsecondary institution. Id. § 1232g(d).
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subject to certain exceptions.82 Most relevant, under the “health or safety emergency” exception,
if a covered entity determines that “there is an articulable and significant threat to the health or
safety of a student or other individuals,” then it may disclose “information from education records
to any person whose knowledge of the information is necessary to protect the health or safety of
the student or other individuals.”83
In March 2020, the Department of Education (ED) released its responses to “Frequently Asked
Questions” (FAQs) on FERPA’s application to the COVID-19 pandemic, which suggests that
covered entities may, in some situations, disclose students’ COVID-19 diagnoses to public health
authorities under the health and safety exception.84 In that guidance document, ED stated that
“immunization and other health records” that are “directly related to a student and maintained” by
a covered entity are “education records” under FERPA.85 However, it further explained that the
COVID-19 pandemic could, depending on local conditions, be a sufficient “threat” under the
health and safety exception.86 According to ED, if “local public health authorities determine that a
public health emergency, such as COVID-19, is a significant threat to students or other
individuals in the community, an educational agency or institution in that community may
determine that an emergency exists as wel .”87 It further noted that, when such “threats” exist,
“[p]ublic health department officials may be considered ‘appropriate parties’” under the health
and safety exception, even “in the absence of a formal y declared health emergency.”88 The
guidance emphasized, however, that the health and safety exception is a “flexible standard under
which [ED] wil not substitute its judgement” for that of the covered entity.89
Although the health and safety exception gives covered entities considerable discretion, parents
or adult students who believe that their rights under FERPA have been violated through a covered
entity’s disclosure of student medical records may file a complaint with ED.90 FERPA authorizes
the Secretary of Education to “take appropriate actions,” which may include withholding federal
education funds, issuing a “cease and desist order,” or terminating eligibility to receive any
federal education funding.91 FERPA does not, however, contain any criminal provisions or a
private right of action.92

82 Exceptions include, among other things, allowing covered entities to disclose educational records to (i) certain
“authorized representatives,” (ii) school officials with a “legitimate educational interest,” or (iii) “organizations
conducting studies” for covered entities “for the purpose of developing, v alidating, or administering predictive tests,
administering student aid programs, and improving instructions.” Id. § 1232g(b); 34 C.F.R. § 99.31.
83 34 C.F.R. § 99.36(c). Covered entities that disclose “personally identifiable information from education records”
under this exception must record in the student’s education record the “articulable and significant threat” that formed
the basis of the disclosure and the parties who requested or received the information. Id. § 99.32(a)(5).
84 U.S DEP’T OF EDUC., FERPA & CORONAVIRUS DISEASE 2019 (COVID-19): FREQUENTLY ASKED QUESTIONS (FAQS),
(Mar. 2020), https://studentprivacy.ed.gov/sites/default/files/resource_document/file/FERPA%20and%
20Coronavirus%20Frequently%20Asked%20Questions_0.pdf.
85 Id. at 2.
86 Id. at 3.
87 Id.
88 Id. at 4.
89 Id.
90 34 C.F.R. § 99.63.
91 20 U.S.C. § 1232g(f); 34 C.F.R. § 99.67.
92 See Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002) (“In sum, if Congress wishes to create new rights enforceable
under § 1983, it must do so in clear and unambiguous terms—no less and no more than what is required for Congress
to create new rights enforceable under an implied private right of action. FERPA’s nondisclosure provisions contain no
rights-creating language, they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary
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Children’s Online Privacy Protection Act (COPPA)
The Children’s Online Privacy Protection Act (COPPA) and its implementing regulations93
protect the privacy of children under the age of 13 by imposing certain obligations on operators
of online services (including apps)94 collecting children’s information. Specifical y, to be subject
to COPPA’s requirements, an entity must: (1) collect or maintain personal information from users
of the service (or have the information collected or maintained on its behalf); (2) operate the
service “for commercial purposes”; and (3) either direct its service towards children or have
“actual knowledge that it is collecting personal information from a child.”95
If COPPA applies to a contact-tracing app, the app’s operator must undertake a number of
privacy-protecting steps. First, an operator must provide notice as to what type of information is
collected and how it is used.96 Second, the operator may not collect, use, or disclose personal
information without receiving verifiable parental consent before the information is collected.97
Lastly, operators must comply with certain data retention and deletion requirements, and they
must also establish and maintain “reasonable procedures” designed to “protect the
“confidentiality, security, and integrity” of the information.98
COPPA’s consent requirement does not apply if information is collected, used, or disclosed “for
an investigation on a matter related to public safety.”99 This provision could arguably permit
public health authorities to access data for use in contact tracing without parental consent, even if
the data would normal y be protected by COPPA. However, the Federal Trade Commission (FTC)
has not issued any guidance on the applicability of this exception to digital contact tracing. Lastly,
operators must comply with certain data retention and deletion requirements, and they must also
establish and maintain “reasonable procedures” designed to “protect the confidentiality, security,
and integrity” of the information.100
The FTC is responsible for enforcing COPPA, and enforces violations of COPPA as violations of
“a rule defining an unfair or deceptive act or practice” under the Federal Trade Commission Act
(FTC Act).101 The FTC has recovered considerable civil penalties against technology companies
for violations of COPPA.102 For further discussion of FTC enforcement, see the later section,
“The Federal Trade Commission Act.”

of Education's distribution of public funds to educational institutions.”).
93 15 U.S.C. §§ 6501–06; 16 C.F.R. pt. 312.
94 See Complying with COPPA: Frequently Asked Questions, FED. T RADE COMM’N, https://www.ftc.gov/tips-
advice/business-center/guidance/complying-coppa-frequently-asked-questions-0 (last visited Aug. 14, 2020). Under
COPPA, an operator is any person who operates a website or online service for commercial purposes in interstate and
foreign commerce, and who “collects or maintains personal information” from or about the website’s or online
service’s users. 15 U.S.C. § 6501(2).
95 15 U.S.C. § 6501(2), 6502(a); 6 C.F.R. § 312.2–312.3.
96 16 C.F.R. § 312.4.
97 Id. § 312.5. COPPA also requires that the operator provide a method by which a parent can review the informat ion
shared by a child, prevent its further use, and take steps to ensure that personal information of children is properly
secured. Id. §§ 312.6, 312.8.
98 Id. §§ 312.8, 312.10.
99 15 U.S.C. § 6502(b)(2)(E)(iv).
100 16 C.F.R. §§ 312.8, 312.10.
101 15 U.S.C. § 6502(c).
102 E.g., Press Release, Fed. T rade Comm’n, Google and YouT ube Will Pay Record $170 Million for Alleged
Violations of Children’s Privacy Law (Sep. 4, 2019), https://www.ftc.gov/news-events/press-releases/2019/09/google-
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Are Contact-Tracing Apps Covered?
Should COPPA apply to contact-tracing apps, it imposes significant limitations on how app
administrators treat children’s information. However, whether contact-tracing app administrators
are subject to COPPA depends on (1) whether the app’s administrator, which might be either a
public health authority or a third-party contractor, collects personal information, (2) whether the
app is operated for “commercial purposes,” and (3) whether the apps are either directed to
children or app administrators knowingly collect the personal information of children. While this
analysis wil ultimately turn on the factual particulars of any given contact-tracing app, it appears
unlikely that most app administrators wil be subject to COPPA, as discussed further below.
Collection of Personal Information
For purposes of COPPA, “collecting” personal information is defined broadly to include “the
gathering of any personal information from a child by any means,” including requesting the
submission of personal information and passively tracking a child online.103 “Personal
information” means “individual y identifiable information about an individual collected
online.”104 The definition lists several specific examples, including a name, address, screen name,
“[g]eolocation information sufficient to identify street name and name of a city or town,” and a
“persistent identifier” such as a “unique device identifier.”105
Location tracking apps are likely to use geolocation information specific enough to qualify as
“personal information” under COPPA, such as GPS information that is precise enough to identify
street names and town names.106 Whether proximity tracking identifiers qualify as “individual y
identifiable” is less clear. A cycling identifier like those used by the Apple-Google framework is
not “persistent,” even if it is a “unique device identifier.”107 For more discussion on this point, see
“Do contact-tracing apps use PHI?,” above.
If apps gather or use personal information, COPPA applies only if the app’s operator collects the
information. Plausible operators of contact tracing apps include either a public health authority or
a third party contracted by a public health authority to manage app data, such as the app’s
developer.108 If the operator does not receive any personal information from app users, COPPA

youtube-will-pay-record-170-million-alleged-violations; Press Release, Fed. T rade Comm’n, Video Social Networking
App Musical.ly Agrees to Settle FT C Allegations T hat It Violated Children’s Privacy Law (Feb. 27, 2019),
https://www.ftc.gov/news-events/press-releases/2019/02/video-social-networking-app-musically-agrees-settle-ftc.
103 16 CFR § 312.2.
104 Id.
105 Id.
106 See JAY STANLEY & JENNIFER STISA GRANICK, ACLU, THE LIMITS OF LOCATION TRACKING IN AN EPIDEMIC 3 (2020),
https://www.aclu.org/sites/default/files/field_document/limits_of_location_tracking_in_an_epidemic.pdf (noting that
GPS typically has an accuracy of “5 to 20 meters under an open sky”).
107 APPLE, EXPOSURE NOTIFICATION 3 (2020), https://covid19-static.cdn-apple.com/applications/covid19/current/static/
contact -tracing/pdf/ExposureNotification-BluetoothSpecificationv1.2.pdf?1 (describing a “ rolling proximity identifier”
that “changes about every 15 minutes”).
108 See ASS’N OF STATE & T ERRITORIAL HEALTH OFFS., ISSUE GUIDE: COVID-19 CASE INVESTIGATION AND CONTACT
T RACING: CONSIDERATIONS FOR USING DIGITAL TECHNOLOGIES 7 (2020), https://www.astho.org/AST HOReports/
COVID-19-Case-Investigation-and-Contact-Tracing-Considerations-for-Using-Digital-T echnologies/07-16-20/ (noting
that “most states are contracting with members of the private sector to outsource data storage, data management, and
workforce functions”); see also Healthy Together App, UTAH.GOV, https://coronavirus.utah.gov/healthy-together-app/
(indicating in an FAQ that “public health officials and a limited number of development employees” with a third-party
contract or may access location data of app users). Utah’s app no longer collects location information. Bethany Rodgers,
Utah’s Expensive Coronavirus App Won’t Track People’s Movements Anymore, Its Key Feature , SALT LAKE T RIBUNE
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would not apply. However, even decentralized app configurations rely on collection of some
data—namely, the location information or proximity identifiers associated with a positive
diagnosis—by a centralized authority.109 Such an authority would qualify as “collecting”
information under COPPA.
Commercial Purposes
Online service administrators are not operators under COPPA unless they are operating online
services for “commercial purposes.”110 Public health investigations undertaken by state and local
governments are arguably noncommercial. Thus, contact-tracing apps may not be for
“commercial purposes” if the information is obtained solely by public health officials for contact-
tracing purposes. However, sharing app data with a for-profit third party, as North Dakota’s
contact-tracing app did for a time,111 might constitute a “commercial purpose” under COPPA.112
Personal Information of Children
COPPA applies only when an operator operates an online service “directed to children” or when
the operator has “actual knowledge” that it is collecting personal information from a child.113 A
child is an individual under the age of 13.114 In determining whether an online service is directed
to children, the FTC considers a range of indicia, including the online service’s “subject matter,
visual content, [and] use of animated characters or child-oriented activities.”115 The FTC may also
consider “competent and reliable empirical evidence regarding audience composition, and
evidence regarding the intended audience.”116
Public health authorities that have released contact-tracing apps describe the apps in staid terms
and with limited imagery, often emphasizing the role the apps wil play in responding to the
public health crisis.117 Officials in Virginia have taken the additional step of explicitly stating that
their app is not intended for use by anyone under 13.118 Contact-tracing apps are thus unlikely to

(July 11, 2020), https://www.sltrib.com/news/politics/2020/07/11/states-m-healthy-together/.
109 See APPLE, EXPOSURE NOTIFICATION FREQUENTLY ASKED QUESTIONS 5 (2020), https://covid19-static.cdn-
apple.com/applications/covid19/current/static/contact-tracing/pdf/ExposureNotification-FAQv1.1.pdf (detailing the
situations in which a public health authority will have access to proximity tracking data).
110 15 U.S.C. § 6501(2).
111 Stephen Groves, Tech Privacy Firm Warns Contact Tracing App Violates Policy, ASSOCIATED PRESS (May 22,
2020), https://apnews.com/03f2756664184cf1789c9b970beb7111 .
112 Cf. Complying with COPPA: Frequently Asked Questions, FED. T RADE COMM’N (July 2020),
https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions-0 (noting in
section N.2. that a school contractor collecting student personal information that intends to use personal information
“for its own commercial purposes in addition to the provision of services to the school” must obtain additional consent
for this use). Additionally, COPPA does not explicitly apply to government bodies, such as state and local public health
authorities, and it is unclear whether the FT C can bring enforcement actions against state gove rnments for unfair and
deceptive acts and practices. For further discussion of this issue, see the section “ T he Federal T rade Commission Act .”
113 15 U.S.C. § 6502.
114 Id. § 6501.
115 16 C.F.R. § 312.2.
116 Id.
117 E.g., CRUSH COVID RI, R.I. DEP’T OF HEALTH, https://health.ri.gov/covid/crush/ (last visited Sept. 22, 2020);
Care19, NDRESPONSE.GOV, https://ndresponse.gov/covid-19-resources/care19 (last visited Sept. 22, 2020); PathCheck
SafePlaces Mobile App, T ETON CTY., WYO. HEALTH DEP’T, https://www.tetoncountywy.gov/2156/PathCheck -
SafePlaces-Mobile-App (last visited Sept. 22, 2020).
118 Virginia Department of Health COVIDWISE- Privacy Policy, VA. DEP’T OF HEALTH (July 10, 2020),
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be “directed at children,” though operators may stil face obligations under COPPA if they
knowingly collect personal information from a child.
Given the above considerations—that contact-tracing apps are arguably not operated for
commercial purposes and the apps are not typical y directed at children—COPPA appears
unlikely to place obligations on most public health authorities or third party contractors managing
contact-tracing apps. However, this issue must ultimately be decided on a case-by-case basis, in
light of the facts surrounding the particular app at issue.
The Privacy Act
As discussed, contact tracing is typical y conducted by state and local health authorities rather
than the federal government. However, it is conceivable that federal agencies like the CDC might
help coordinate contact tracing activities among the states and might exchange contact tracing
information with them as part of this process. To the extent that federal agencies receive contact-
tracing information pertaining to individuals, they must comply with the Privacy Act of 1974.119
Under the Privacy Act, federal agencies120 must comply with privacy protections for any “record”
they maintain in a “system of records.”121 The Privacy Act defines a record as encompassing “any
item, collection, or grouping of information about an individual that is maintained by an agency”
and that contains the individual’s “name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice print or a photograph.”122 It further
defines system of records as “a group of any records under the control of any agency from which
information is retrieved by the name of the individual or by some identifying number, symbol, or
other identifying particular assigned to the individual.”123 The Act also requires agencies to
publish a notice in the federal register whenever they establish or revise a system of records,
describing the nature of the system.124 When the Privacy Act’s protections apply, agencies must
obtain the “prior written consent of the individual to whom the record pertains” before disclosing
it to “any person, or to another agency.”125 However, the Privacy Act contains a number of
exceptions to this consent requirement, such as the “routine use” exception, which al ows
agencies to use a record “for a purpose which is compatible with the purpose for which it was
collected.”126 There is also a “health and safety” exception, which requires a showing that
“compel ing circumstances” affect the health and safety of an individual.127
Particularly relevant to COVID-19 and digital contact tracing, on July 20, 2020, the Department
of Health and Human Services (HHS) published a system of records notice (SORN) explaining

https://www.vdh.virginia.gov/covidwise/privacy-policy/ (stating that the app “ is not intended for children under the age
of 13” and that the public health authority does “not knowingly allow a child under 13 to use the App”).
119 5 U.S.C. § 552a.
120 For purposes of the Privacy Act, an agency is an “authority of the Government of the United States, whether or not
it is within or subject to review by another agency,” including any “establishment in the executive branch” and “any
independent regulatory agency” but not Congress, the courts, or th e governments of the U.S. territories and District of
Columbia. Id. §§ 551(1), 552(f)(1), 552a(a)(1).
121 Id. § 552a(b)–(e).
122 Id. § 552a(a)(4).
123 Id. § 552a(a)(5).
124 Id. § 552a(e)(4).
125 Id. § 552a(b).
126 Id. § 552a(a)(7).
127 Id. § 552a(b)(8).
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that it had established a new department-wide system of records covering “records used for
surveil ance and investigation of epidemics, preventable diseases and health problems.”128 This
replaced an earlier system of records, which covered the same type of materials but was limited to
the CDC, rather than al of HHS.129 The SORN issued by HHS explains that the records covered
by this system include “medical records and related documents,” such as “case reports, lab
requisition forms, patient consent forms, assurance statements, analytical testing data,
questionnaires, and contact tracing reports.”130 It further explains that uses fal ing under the
“routine use” exception include, among other things, disclosures to “HHS contractors and agents”
and “state, local, and Tribal health departments and authorities.”131 This SORN is noteworthy
because it indicates that, if HHS or the CDC does obtain medical records, contact tracing reports,
or similar documents that show an individual’s COVID-19 diagnosis or exposure (including
information collected from digital contact tracing apps), then this information would be
maintained in the system of records identified in the SORN and would likely be subject to the
Privacy Act’s requirements. However, the SORN also indicates that HHS has determined such
records could be disclosed to its contractors or to state and local health departments under the
routine use exception. Thus, even if the Privacy Act applies to this information, HHS likely has
some flexibility in disclosing these records for contact-tracing purposes.
To the extent an individual believes that the CDC or any other federal agency has used contact-
tracing information in a way that violates their rights under the Privacy Act, they may bring a
civil action against the government in federal court.132 The Act expressly al ows any individual
who has been “adverse[ly] affect[ed]” by an agency’s violation to bring such actions.133 If the
individual prevails in the suit, the court may order the agency to “amend the individual’s record
in accordance with his request or in such other way as the court may direct” and to pay the
reasonable attorney fees and litigation costs incurred by the individual.134 Furthermore, if the
court determines the agency acted “intentional[ly] or wil ful[ly]” then “the United States shal be
liable to the individual” for an amount equal to their “actual damages” resulting from the
violation, along with reasonable attorney fees and litigation costs.135
Electronic Communications Privacy Act (ECPA)
Congress passed the Electronic Communications Privacy Act (ECPA)136 to, among other things,
address the use of wiretapping or electronic eavesdropping equipment. The first part of ECPA,
sometimes referred to as the Wiretap Act, criminalizes the unauthorized interception or disclosure
of electronic communications in transmission. 137 Another section of ECPA, known as the Stored
Communications Act (SCA), prohibits the unauthorized access of electronic communications at

128 Notice of a New Statement of Records, and Rescindment of a System of Records, 85 Fed. Reg. 43859 -01 (July 20,
2020), https://www.govinfo.gov/content/pkg/FR-2020-07-20/pdf/2020-15564.pdf.
129 Id.
130 Id. at 43,859–60.
131 Id. at 43,860.
132 5 U.S.C. § 552a(g).
133 Id. § 552a(g)(1).
134 Id. § 552a(g)(2).
135 Id. § 552a(g)(4).
136 Pub. L. No. 99-508, 100 Stat. 1848 (1986).
137 18 U.S.C. §§ 2510–2522. Congress originally enacted these restrictions as T itle III of the Omnibus Crime Control
and Safe Streets Act of 1968 (also known as the Wiretap Act), which ECPA amends. Pub. L. No. 90 -351, 82 Stat. 197,
211.
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rest (i.e., an e-mail stored on a server).138 ECPA also includes language describing the processes
government entities must undertake prior to gaining access to any electronic communications
protected by the statute. Violations of ECPA may result in both civil and criminal penalties.139 For
a more detailed overview of ECPA and its provisions, see CRS Report R41733, Privacy: An
Overview of the Electronic Communications Privacy Act, by Charles Doyle.
Legal Background
ECPA protects only the contents of electronic communications. “Electronic communication” is
broadly defined as “any transfer of signs, signals, writing, images, sounds, data, or intel igence of
any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or
photooptical system that affects interstate or foreign commerce.”140 The contents of an electronic
communication are “any information concerning the substance, purport, or meaning of [a]
communication.”141
The different portions of ECPA contain different prohibitions and exceptions. The Wiretap Act
prohibits “intercept[ing]” an electronic communication or disclosing an intercepted electronic
communication.142 “Intercept” means “the aural or other acquisition” of the contents of an
electronic communication “through the use of any electronic, mechanical, or other device.”143 The
Wiretap Act does not apply when the person intercepting the electronic communication is a party
to the communication or a party to the communication has given consent,144 nor does it apply
when the electronic communication is available to the general public.145
While the Wiretap Act protects electronic communications in transit, the SCA prohibits
unauthorized access to “a facility through which an electronic communication service is
provided” that results in access to a communication “in electronic storage,”146 as wel as the
voluntary disclosure of an electronic communication maintained on a “remote computing service”
or held in electronic storage by “a person or entity providing an electronic communication
service.”147 Electronic storage is either the “temporary, intermediate storage of a wire or
electronic communication incidental to the electronic transmission thereof” or “any storage of
such communication by an electronic communication service for purposes of backup protection
of such communication.”148 The SCA does not define “a facility through which an electronic
communication service is provided”; however, the SCA’s legislative history indicates that
Congress intended to protect communications stored by third parties on a user’s behalf, such as

138 18 U.S.C. §§ 2701–2711.
139 Id. §§ 2520, 2707 (civil penalties for Wiretap Act and SCA); §§ 2511(4), 2701(b) (criminal penalties).
140 Id. § 2510(12).
141 Id. §§ 2510(8), 2711(a).
142 Id. § 2511(1).
143 Id. § 2510(4).
144 Id. § 2511(2)(c), (d).
145 Id. § 2511(2)(g).
146 Id. § 2701(a).
147 Id. § 2702(a). An “electronic communication service” is “any service which provides to users thereof the ability to
send or receive wire or electronic communications.” Id. § 2510(15). A “remote computing service” is “the provision to
the public of computer st orage or processing services by means of an electronic communications system.” Id.
§ 2711(3).
148 Id. § 2510(17).
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emails stored on a remote server.149 Similar to the Wiretap Act, the SCA does not apply when a
party to the communication has consented to its access or disclosure.150 The SCA also permits
disclosure of electronic communications to a government entity in the event of “an emergency
involving danger of death or serious physical injury to any person.”151
How Do ECPA’s Exceptions Apply?
Both the Wiretap Act and the SCA include exceptions to their prohibitions when a party to the
communication has given consent.152 A public health official would not violate ECPA in receiving
or disclosing contact-tracing information, even to a third party, because the public health official
would likely be a party to the original communication.153 Further, even if an entity collecting
contact-tracing information is not a party to the communication, the majority of guidance on the
adoption of digital contact-tracing tools, including guidance from the CDC, suggests that use of
such tools should be voluntary.154 Assuming that contact-tracing apps provide sufficient
information on how information they collect wil be used and shared, app providers likely could
be able to rely on app users’ consent.155
In addition to involving a transfer of data from a diagnosed app user to a public health authority,
proximity tracking apps can involve countless transfers of data between users. These apps
broadcast identifiers to any device within range of the app user’s device, and any Bluetooth-
capable devices that use a Google or Apple operating system—i.e., nearly al smartphones156—
can send and receive these identifiers.157 Some potential harms identified by privacy advocates,

149 Hately v. Watts, 917 F.3d 770, 782 (4th Cir. 2019) (citing H.R. Rep. No. 99 -647, at 18 (1986)); Garcia v. City of
Laredo, 702 F.3d 788, 791 (5th Cir. 2012) (noting that, prior to passage of the SCA, “ the United States Code provided
no protection for stored communications in remote computing operations and large data banks that stored e -mails”).
150 18 U.S.C. §§ 2701(c)(2), 2702(b)(3).
151 Id. § 2702(b)(8).
152 18 U.S.C. §§ 2511(c),(d),(g), 2701(c)(2), 2702(b)(3).
153 See In re Google Inc. Cookie Placement Consumer Privacy Litigation, 806 F.3d 125, 142 –43 (3d Cir. 2015)
(applying the “party to the communication” exception when Google placed a cookie on plaintiffs’ web browsers that
transmitted browsing activity to Google).
154 CTRS. FOR DISEASE CONTROL & PREVENTION, GUIDELINES FOR THE IMPLEMENTATION AND USE OF DIGITAL TOOLS TO
AUGMENT T RADITIONAL CONTACT T RACING 2 (2020), https://www.cdc.gov/coronavirus/2019-
ncov/downloads/php/guidelines-digital-tools-contact -tracing.pdf; see also JOSEPH ALI ET AL., DIGITAL CONTACT
T RACING FOR PANDEMIC RESPONSE 20 (Jeffrey P. Kahn ed., 2020), https://muse.jhu.edu/book/75831/pdf (recommending
“basic disclosure and voluntary agreement or authorization” for use of digital contact tracing tools); DANIEL KAHN
GILLMOR, ACLU, PRINCIPLES FOR TECHNOLOGY-ASSISTED CONTACT-TRACING 4 (2020),
https://www.aclu.org/sites/default/files/field_document/aclu_white_paper_-_contact_tracing_principles.pdf
(recommending voluntary participation for digital contact tracing tools).
155 See Williams v. Affinion Grp., LLC, 889 F.3d 116, 121 –22 (2d Cir. 2018) (holding that the consent exception to the
ECPA applies when the customer is presented a webpage informing the customer that by clicking the “ YES” button
their information will be transferred to a third party). But see Williams v. Poulos, 11 F.3d 271, 281 (1st Cir. 1993)
(informing employee that employee telephone calls would be “ monitored” did not inform the employee of the manner
in which monitoring would be conducted or that the employee individually would be monitored, and therefore did not
constitute consent for the employer to record the employee’s telephone calls).
156 See Mobile Operating System Market Share United States of America : Aug 2019 – Aug 2020, STATCOUNTER
GLOBALSTATS, https://gs.statcounter.com/os-market-share/mobile/united-states-of-america (last visited Sept. 22, 2020)
(noting that more than 99% of U.S. smartphones run a Google or Apple operating system).
157 See APPLE, EXPOSURE NOTIFICATION FREQUENTLY ASKED QUESTIONS 3 (2020), https://covid19-static.cdn-
apple.com/applications/covid19/current/static/contact-tracing/pdf/ExposureNotification-FAQv1.1.pdf (noting that once
enabled, a user’s device will broadcast signals for other devices to receive).
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such as the use of Bluetooth beacons to collect identifiers,158 would therefore likely not violate
ECPA, because the broadcast of a user’s identifier is readily accessible by the public.159
The SCA contains an exception for disclosures made to government entities in the event of “an
emergency involving danger of death or serious physical injury to any person.”160 Whether the
COVID-19 outbreak constitutes such an emergency is unclear. The exception’s historical
application is largely to criminal investigations, particularly those involving kidnapping.161
The Federal Trade Commission Act
The Federal Trade Commission Act (FTC Act) is an integral part of the federal data protection
law landscape. The key provision of the FTC Act, Section 5, declares unlawful “unfair or
deceptive acts or practices” (UDAP) “in or affecting commerce.”162 The Act provides that an act
or practice is only “unfair” if it “causes or is likely to cause substantial injury to consumers which
is not reasonably avoidable by consumers themselves and not outweighed by countervailing
benefits to consumers or to competition.”163 While the Act does not define “deceptive,” the
Federal Trade Commission (FTC), which enforces the UDAP prohibition, has clarified in
guidance that an act or practice is to be considered deceptive if it involves a material
“representation, omission, or practice that is likely to mislead [a] consumer” who is “acting
reasonably in the circumstances.”164 This prohibition broadly applies to most individuals and
entities, although certain entities—such as common carriers, non-profits, and banks—are
exempt.165
In contrast to many of the other federal data protection laws, the FTC Act does not impose any
specific data protection obligations, such as a requirement to obtain consumer consent before
sharing their data. Nevertheless, the FTC has used its case-by-case enforcement of the FTC Act’s
UDAP prohibition to signal the type of privacy practices it views as “unfair” or “deceptive,” thus

158 See Michael Kwet, In Stores, Secret Surveillance Tracks Your Every Move, N.Y. T IMES (June 14, 2019) (discussing
the use of Bluetooth beacons in retail stores); Andrew Crocker et al., The Challenge of Proxim ity Apps for COVID-19
Contact Tracing, ELEC. FRONTIER FOUND. (Apr. 10, 2020), https://www.eff.org/deeplinks/2020/04/challenge-proximity-
apps-covid-19-contact -tracing (speculating that a “ widespread network of Bluetooth readers” could be used to track
individual app users).
159 See 18 U.S.C. § 2511(2)(g).
160 Id. § 2702(b)(8).
161 E.g., In re Application of U.S. for a Nunc Pro T unc Order for Disclosure of T elecomms. Records, 352 F. Supp. 2d
45 (D. Mass 2005); United States v. Gilliam, No. 11 Crim. 1083, 2012 WL 4044632 (S.D.N.Y. Sep. 12, 2012)); Jayne
v. Sprint PCS, No. CIV S-07-2522, 2009 WL 426117 (E.D. Cal. Feb. 20, 2009).
162 15 U.S.C. § 45(a)(1); see also FED. T RADE COMM’N, PRIVACY & DATA SECURITY UPDATE 1 (2017),
https://www.ftc.gov/system/files/documents/reports/privacy-data-security-update-2017-overview-commissions-
enforcement -policy-initiatives-consumer/privacy_and_data_security_update_2017.pdf (noting that the FT C’s “ primary
legal authority comes from Section 5 of the Federal T rade Comm ission Act”).
163 15 U.S.C. § 45(n).
164 FED. T RADE COMM’N, FT C POLICY STATEMENT ON DECEPTION 1–2, (Oct. 14, 1983), https://www.ftc.gov/system/
files/documents/public_statements/410531/831014deceptionstmt.pdf (capitalization altered); see also, In re Int’l
Harvester Co., No. 9147, 1984 WL 565290, at *85 (FT C Dec. 21, 1984) (“ Our approach to deception cases was
described in a policy statement that the Commission issued in 1983. . . . In brief, a deception case requires a showing of
three elements: (1) there must be a representation, practice, or omission likely to mislead consumers; (2) the consumers
must be interpreting the message reasonably under the circumstances; and (3) the misleading effects must be ‘material,’
that is, likely to affect consumers’ conduct or decision with regard to a product.”).
165 15 U.S.C. § 45(a)(2) (providing the FT C with jurisdiction over all “persons, partnerships, or corporations” except
certain exempted entities); Nat ’l Fed’n of the Blind v. FT C, 420 F.3d 331, 354 (4th Cir. 2005) (“ The FT C Act gives the
agency jurisdiction over ‘persons, partnerships and corporations,’ but no authority over nonprofit organizations.”).
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creating what some scholars have cal ed a “common law of privacy.”166 For instance, the FTC has
frequently al eged that companies act deceptively when they violate their own privacy policies,
such as collecting data they say they wil not collect or failing to protect personal information
from unauthorized access despite promises that that they would do so.167 The FTC has also
maintained that a company’s failure to adopt reasonable data security standards may be “unfair”
in and of itself.168
It is unclear whether the FTC could bring a UDAP action against state health departments or app
developers acting on their behalf if the FTC believes these developers’ data privacy and data
security practices run afoul of the UDAP standard. For example, courts have invoked the state
action doctrine—which provides immunity for certain state actions that might otherwise violate
federal antitrust laws—in suits brought by the FTC against states or third parties acting under
state authority al eging violations of the FTC Act’s prohibition of “unfair methods of
competition.”169 This doctrine may also apply to the FTC’s UDAP authority, although the case
law on this issue is relatively sparse. At least one district court has applied the state action
doctrine to bar the FTC from using its UDAP enforcement power against a state entity, but that
decision was later vacated on other grounds.170 If the doctrine does apply to UDAP actions, it may
apply not only to actions taken by the State itself but also to actions “carried out by others
pursuant to state authorization,” such as private parties or sub-state entities like municipal
governments.171 However, for immunity to apply to non-state actors, the conduct at issue must
meet a two part test: the chal enged action must be (1) “clearly articulated and affirmatively
expressed as state policy” and (2) “actively supervised by the State.”172
If the FTC decides to bring an enforcement action for a UDAP violation, it may commence either
administrative enforcement proceedings or civil litigation against al eged violators.173 In an
administrative enforcement proceeding, an Administrative Law Judge (ALJ) hears the FTC’s
complaint and may issue a cease and desist order prohibiting the respondent from engaging in

166 Daniel J. Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114 COLUM. L. REV. 583,
619 (2014). For a further discussion of the FT C’s “ common law of privacy,” see CRS Report R45631, Data Protection
Law: An Overview, by Stephen P. Mulligan and Chris D. Linebaugh .
167 See, e.g., Compl., In re Myspace LLC, No. C-4369 (F.T .C. Aug. 30, 2012) (alleging Myspace provided advertisers
with users’ personally identifiable information, despite promises in its privacy policy that it would not sh are such
information); Compl., FT C v. Ruby Corp., No. 1:16-CV-02438 (D.D.C. Dec. 14, 2016) (alleging that operators of
dating site AshleyMadison.com deceived consumers by assuring them that personal information would be protected but
failing to implement the necessary security to prevent a data breach).
168 See, e.g., Compl. At 8, United States v. Rental Research Servs., Inc., No. 0:09-cv-00524-PJS-JJK (D. Minn. Mar. 5,
2009), available at https://www.ftc.gov/sites/default /files/documents/cases/2009/03/090305rrscmpt.pdf (alleging that
defendant ’s failure to employ reasonable and appropriate security measures to protect consumers’ personal information
was an unfair act or practice).
169 See, e.g., FT C v. Phoebe Putney Health Sys., Inc., 568 U.S. 216, 224–228 (2013) (applying the state action doctrine
to an FT C enforcement action alleging unfair competition in violation of the FT C Act, but ultimately holding that the
defendant was not entitled to immunity because there was no evidence the State affirmatively contemplated that the
defendant would engage in the conduct at issue).
170 See Cal. ex rel. Christensen v. FT C, 549 F.2d 1321, 1322 (9th Cir. 1977) (“The district court held that [the state
action doctrine as established by the Supreme Court Case Parker v. Brown] immunized the advertising program in
substantially the same manner and for substantially the same reasons described by the Supreme Court in holding
California raisin marketing practices immune from antitrust liability. We express no opinion on the ultimate question of
immunity under Parker v. Brown because we hold that judicial intervention in this case was premature.”).
171 Phoebe Putney Health Sys., 568 U.S. at 225–26 (citation omitted).
172 Id. at 225 (citation omitted).
173 15 U.S.C. §§ 45(a)(2), 45(b), 53(b).
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wrongful conduct.174 In civil litigation, the FTC may seek an injunction against a party that “is
violating, or is about to violate” the FTC Act.175 Historical y, courts have al owed the FTC to
obtain, in addition to injunctions, al forms of equitable relief, such as requiring the defendant to
disgorge its il -gotten gains.176 However, the Seventh Circuit recently restricted the FTC’s ability
to seek broad equitable relief in these suits, and the Supreme Court has agreed to review this
issue.177 FTC enforcement actions are often settled, with parties entering into consent decrees.178
The FTC may later bring a civil action for monetary penalties if parties subsequently violate such
consent decrees, or any other final order of the FTC.179
Selected State, Foreign, and International Data
Protection Laws
In addition to the federal laws discussed above, a number of state, foreign, and international180
laws could potential y impact the development and implementation of contact-tracing apps.181
Although these laws do not apply outside their respective jurisdictions, app developers engaged in
interstate or international commerce may have to comply with these varying requirements.
Likewise, users who have instal ed contact-tracing apps and travel to other jurisdictions may
trigger the laws’ application. This section discusses the major data laws of three jurisdictions—
California, Canada, and the European Union—and how those laws may impact digital contact
tracing.

174 Id. § 45(b); see also A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement, and
Rulem aking Authority, FED. TRADE COMM’N (Oct. 2019), https://www.ftc.gov/about -ftc/what -we-do/enforcement -
authority (“ Upon conclusion of the hearing, the ALJ issues an ‘initial decision’ setting forth his findings of fact and
conclusions of law, and recommending either entry of an order to cease and deist or dismissal of the complaint.”).
175 15 U.S.C. § 53(b). In light of a recent decision by the U.S. Court of Appeals for the T hird Circuit, the FT C may be
unable to bring civil suits based on past UDAP violations that are no longer ongoing. In FTC v. Shire ViroPharm a,
Inc., the T hird Circuit held that, in civil actions under Section 13(b) of the FT C Act, the FT C must show that the
defendant “ is violating, or is about to violate” the law and that this standard requires more than simply showing that the
conduct is “likely to recur.” 917 F.3d 147, 159 (3d Cir. 2019) (“In short, we reject the FT C’s contention that Section
13(b)’s ‘is violating’ or ‘is about t o violate’ language can be satisfied by showing a violation in the distant past and a
vague and generalized likelihood of recurrent conduct. Instead, ‘is’ or ‘is about to violate’ means what it says—the
FT C must make a showing that a defendant is violating or is about to violate the law.” (footnote omitted)). For
additional background on this issue, see CRS Legal Sidebar LSB10232, UPDATE: Will the FTC Need to Rethink its
Enforcem ent Playbook? Third Circuit Considers FTC’s Ability to Sue Based on Past Conduct, by Chris D. Linebaugh.
176 CRS Legal Sidebar LSB10388, Will the FTC Need to Rethink Its Enforcement Playbook (Part II)? Circuit Split
Casts Doubt on the FTC’s Ability to Seek Restitution in Section 13(b) Suits, by Chris D. Linebaugh.
177 Id.
178 Daniel J. Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114 COLUM. L. REV. 583,
610–11 (2014) (“[V]irtually every [privacy-related] complaint has either been dropped or settled.”).
179 15 U.S.C. § 45(l).
180 Foreign law refers to the domestic laws of other countries, while international law refers to laws that apply among
nations. See, e.g., Foreign, Com parative, and International Law: Definitions, UNIV. OF MICH. L. LIBR. (Aug. 18, 2020,
12:29 pm), https://libguides.law.umich.edu/fcil.
181 For a comparison of state privacy laws, including bills introduced in state legislatures, see Mitchell Noordyke, US
State Com prehensive Privacy Law Com parison , INT’L ASS’N OF PRIV. PROF’LS (updated July 6, 2020), https://iapp.org/
resources/article/state-comparison-table/. For a detailed discussion of foreign and international privacy laws, see Online
Privacy Law, L. LIBR. OF CONG. (July 24, 2020), https://www.loc.gov/law/help/online-privacy-law/index.php. For a
discussion of how different countries and other international jurisdictions are using electronic tools to respond to the
COVID-19 pandemic, see GLOB. LEGAL RSCH. DIRECTORATE, L. LIBR. OF CONG., LL FILE NO. 2020-019000,
REGULATING ELECTRONIC MEANS TO FIGHT THE SPREAD OF COVID-19 (2020).
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California
The California Constitution recognizes privacy as an inalienable right.182 In furtherance of this
right, California has enacted a number of privacy laws,183 including the California Consumer
Privacy Act of 2018 (CCPA).184 California enacted the CCPA185 to “giv[e] consumers an effective
way to control their personal information.”186 The CCPA took effect on January 1, 2020,187 and
the California Attorney General’s regulations implementing the CCPA took effect on August 14,
2020.188 The CCPA general y regulates how businesses collect and use consumers’ personal
information. It limits a covered business’s activities, affords individuals specific rights over their
personal information, and establishes enforcement mechanisms.
Scope of the CCPA
The CCPA protects consumers—natural persons who are California residents189—and their
personal information—“information that identifies, relates to, describes, is reasonably capable of
being associated with, or could reasonably be linked, directly or indirectly, with a particular
consumer or household.”190 Examples of personal information under the CCPA include biometric
information, internet browsing and search histories, and geolocation data.191 Personal information
does not include publicly available information, de-identified information (that is, information
that associated with a particular consumer192), or aggregate information.193 It also does not include
information protected by HIPAA.194
Under the CCPA, a covered business is any for-profit entity, including a sole proprietorship,
partnership, or corporation, that (1) operates in California, (2) collects or receives consumers’
personal information, and (3) satisfies any of the following thresholds:195
 earns more than $25 mil ion in annual gross revenue;
 buys, sel s, or receives the personal information of 50,000 or more California
residents; or

182 CAL. CONST. art. I, § 1.
183 For a list of California privacy laws, see Privacy Laws, CAL. DEP’T OF JUSTICE, https://oag.ca.gov/privacy/privacy-
laws (last visited Sept. 22, 2020). Of note, California’s analogue to the federal Privacy Act is the Information Practices
Act of 1977, CAL. CIV. CODE §§ 1798–1798.78. California’s analogue to HIPAA is the Confidentiality of Medical
Information Act, CAL. CIV. CODE §§ 56–56.37.
184 CAL. CIV. CODE §§ 1798.100–1798.199.
185 California Consumer Privacy Act of 2018, Assemb. 375, 2017 -18 Sess. (Cal. 2018), 2018 Cal. Stat. ch. 55.
186 Id. § 2(i).
187 CAL. CIV. CODE § 1798.198(a).
188 See CCPA Regulations, CAL. DEP’T OF JUSTICE, https://oag.ca.gov/privacy/ccpa/regs (last visited Sept. 22, 2020).
189 CAL. CIV. CODE § 1798.140(g).
190 Id. § 1798.140(o)(1).
191 Id.
192 Id, § 1798.140(h).
193 Id. § 1798.140(o)(2)–(3).
194 Id. § 1798.145(c)(1)(A).
195 Id. § 1798.140(c)(1).
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 derives more than 50% of its annual revenue from the sale of California
residents’ personal information.196
Consumer Rights
The CCPA protects three broad categories of consumer rights. First, it grants consumers a right to
certain information about how and why businesses collect and use their personal data.197 Before
collecting any personal information from a consumer, a business must disclose the categories of
information it wil collect and the purpose of the collection.198 Businesses must also notify
consumers of their rights under the CCPA.199 In addition, a consumer may request several other
types of information from a business, including: (1) the specific pieces of personal information a
business has collected;200 (2) where it obtained the information;201 and (3) the categories of third
parties with which it shared the information.202
Second, the CCPA guarantees a consumer’s right to request that a business delete any information
it has collected about the consumer.203 This right is subject to several limitations.204 For example,
a business is not required to delete information necessary to complete the transaction for which it
collected the information or to fulfil the terms of a warranty.205 Similarly, a business need not
delete information necessary to detect security incidents or il egal activity or to identify and repair
system errors.206
Third, the CCPA gives a consumer the right to opt out of the sale of the consumer’s information
to third parties.207 Consumers may exercise this right at any time,208 and a business that receives a
customer’s opt-out direction may not sel that customer’s information unless the customer later
reauthorizes the sale.209 In addition, businesses may not sel the data of a consumer under sixteen
years old without express consent from either the consumer or their guardian.210
Business Obligations
Along with the individual rights above, the CCPA imposes several obligations on covered
businesses. First, the CCPA prohibits discrimination against a consumer based on that consumer’s
exercise of any of the above rights.211 Under this prohibition, a business may not deny goods or

196 Id. § 1798.140(c)(1)(A)–(C).
197 Id. §§ 1798.100, 1798.110, 1798.115.
198 Id. § 1798.100(b).
199 See id. §§ 1798.105(b), 1798.120(b).
200 Id. § 1798.100(a).
201 Id. § 1798.110(a)(2).
202 Id. § 1798.110(a)(4).
203 Id. § 1798.105(a).
204 See id. § 1798.105(d).
205 Id. § 1798.105(d)(1).
206 Id. § 1798.105(d)(2)–(3).
207 Id. § 1798.120.
208 Id. § 1798.120(a).
209 Id. § 1798.120(d).
210 Id. § 1798.120(c).
211 Id. § 1798.125(a)(1).
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services to a consumer who, for example, opts out of the sale of personal information.212
Likewise, a business may not provide a different level of service to a consumer who exercises the
above rights.213 A business may, however, provide a financial incentive to consumers who agree
to the collection or sale of their data.214 Second, businesses must provide conspicuous notice of
consumers’ rights and means to enforce those rights.215 This includes including a conspicuous link
on a business’s webpage titled “Do Not Sel My Personal Information” and a toll-free telephone
number to request information.216 Final y, businesses must “implement and maintain reasonable
security procedures and practices appropriate to the nature of the information” they collect.217 If a
business fails to do so, it could face civil penalties in the event of a data breach.218
Enforcement
The CCPA provides two enforcement mechanisms. Businesses that receive notice of
noncompliance must cure the al eged violations within thirty days.219 If a business fails to do so,
it may be subject to penalties in a civil action brought by the California Attorney General.220 To
promote enforcement, the CCPA created a “Consumer Privacy Fund” to offset court and Attorney
General costs.221
Second, the CCPA authorizes private rights of action in limited circumstances.222 A consumer may
bring a civil action against a business if that consumer’s “nonencrypted and nonredacted”
personal information is stolen or disclosed without authorization as a result of a business’s failure
to safeguard the information.223 A consumer may recover damages, seek court orders directing a
business to take certain action, and receive “[a]ny other relief the court deems proper.”224
Consumers may not, however, bring a civil action to enforce any other provision of the CCPA.225
CCPA and Contact Tracing
Although the CCPA could potential y cover a digital contact-tracing app, the circumstances under
which it would apply are narrow. Because the CCPA only applies to for-profit businesses, it
would not cover apps developed by state or local public health authorities.226 It could, however,
apply to a private contractor that develops and runs an application for a state or local agency.
Similarly, whether the CCPA applies would depend on the type of data an app collects. Because

212 See id. § 1798.125(a)(1)(A).
213 Id. § 1798.125(a)(1)(C).
214 Id. § 1798.125(b).
215 Id. §§ 1798.130–1798.135.
216 Id. §§ 1798.130(a)(1)(A), 1798.135(a)(1).
217 Id. § 1798.150(a)(1).
218 Id.
219 Id. § 1798.155(b).
220 Id. § 1798.155(c).
221 Id. § 1798.160.
222 Id. § 1798.150(a)(1).
223 Id.
224 Id. § 1798.150(a)(1)(A)–(C).
225 Id. § 1798.150(c).
226 See id. § 1798.140(c)(1).
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the CCPA only applies to personal information and excludes information covered by HIPAA,227 it
likely would not cover applications that collect only an anonymous identifier or that link an
anonymous identifier with a COVID-19 diagnosis. On the other hand, the CCPA could apply to
apps that collect users’ location data or other personal information to the extent that the collected
information is not PHI subject to HIPAA.
Canada
Canadian privacy law consists of a body of federal, provincial, and territorial laws that work
together to protect individuals’ information based on the type of entity being regulated and the
type of covered data at issue.228 At the federal level, two laws—the Privacy Act and the Personal
Information Protection and Electronic Documents Act (PIPEDA)—govern the collection, use, and
disclosure of personal information.229 The Office of the Privacy Commissioner of Canada (OPC)
enforces both laws and provides guidance on whether the laws apply to a given situation.230 To
that end, OPC has worked with the Canadian government to assess the privacy ramifications of
COVID Alert, an exposure notification application that the government deployed on July 31,
2020.
Canada’s Privacy Act
Like its U.S. analogue,231 Canada’s Privacy Act governs information held by government
institutions.232 It defines personal information as “information about an identifiable individual
that is recorded in any form” and prohibits government institutions from collecting personal
information “unless it relates directly to an operating program or activity of the institution.”233 It
also requires government institutions to inform individuals of the purpose for which any
information is collected234 and limits the use, retention, and disclosure of any collected
information.235 For example, the Privacy Act specifies that government institutions must retain
any information they collect for sufficient time to al ow individuals “a reasonable opportunity” to
access the information.236 Likewise, government institutions may not use personal information for
a purpose other than for which it was obtained, with the exception of enumerated circumstances
in which the government may disclose the information, such as when “the public interest in
disclosure clearly outweighs any invasion of privacy.”237

227 Id. §§ 1798.140(o)(1), 1798.145(c)(1)(A).
228 See Summary of Privacy Laws in Canada, OFF. OF THE PRIV. COMM’R OF CAN. (Jan. 31, 2018), https://www.
priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/02_05_d_15/.
229 Id.; see also Privacy Act, R.S.C. 1985, c P -21 (Can.) [hereinafter Can. Priv. Act]; Personal Information Protection
and Electronic Documents Act, S.C. 2000, c 5 (Can.)
230 See Can. Priv. Act §§ 29–35; PIPEDA §§ 11–13.
231 See infra “T he Privacy Act.”
232 Can. Priv. Act § 3.
233 Id. §§ 3–4.
234 Id § 5(2).
235 Id. §§ 6–9.
236 Id. § 6(1).
237 Id. §§ 7, 8(2).
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In addition to the responsibilities the Privacy Act places on government institutions, it guarantees
individuals the right to access personal information in the possession of government agencies.238
There are, however, several exceptions to this right.239 For example, a government agency may
refuse to disclose information that “could reasonably be expected to threaten the safety of
individuals.”240 An agency may also refuse to disclose certain types of professional information,
such as information protected by attorney-client privilege241 or medical records when disclosure
of those records is not in the best interests of their subject.242
If an individual believes a government agency has improperly used or disclosed personal
information concerning the individual, or if an agency refuses to al ow an individual access to
personal information in the agency’s possession, the individual can file a complaint with the
OPC.243 The OPC may also initiate a complaint.244 Once the OPC receives a complaint, it begins
an investigation that culminates in a report of findings and recommendations.245 Both an
individual and the OPC may request judicial review of an OPC report of findings and
recommendations in the Federal Court of Canada, but only in cases where a government agency
has refused to provide access to personal information.246
PIPEDA
In contrast to Canada’s Privacy Act, PIPEDA applies to personal information collected, used, or
disclosed by private entities in the course of commercial activities.247 Like the Privacy Act, it
defines personal information as “information about an identifiable individual.”248 It applies to
organizations—associations, partnerships, persons, or trade unions—that engage in commercial
activity or “the operation of a federal work, undertaking or business.”249 Some organizations—
including those subject to an analogous territorial privacy law, nonprofits, and journalists—are
exempt from PIPEDA’s requirements.250
Organizations subject to PIPEDA general y must adhere to ten fair information principles:251

238 Id. §§ 12–17.
239 See id. §§ 18–28.
240 Id. § 25.
241 Id. § 27.
242 Id. § 28.
243 Id. § 29(1).
244 Id. § 29(3).
245 Id. §§ 29–35.
246 Id. §§ 41–42.
247 PIPEDA §§ 2–4. Specifically, PIPEDA applies to organizations. See id. §§ 2, 4.
248 Id. § 2.
249 Id. § 4. PIPEDA defines federal work, undertaking, or business as an activity within the legislative authority of
Parliament, as opposed to one of the territorial governments. Id. Such activities include inland and maritime shipping,
air transportation, radio broadcasting, and banking. Id.
250 Id. §§ 2, 4(1)(a), 4(2)(c).
251 Id. § 5; see PIPEDA In Brief, OFF. OF THE PRIV. COMM’R OF CAN. (June 7, 2019), https://www.priv.gc.ca/en/privacy-
topics/privacy-laws-in-canada/the-personal-information-protection-and-electronic-document s-act-pipeda/pipeda_brief/.
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 Accountability—organizations must assume responsibility for personal
information and designate an individual to ensure PIPEDA compliance and
oversee day-to-day collection and processing of personal information;252
 Identifying purposes—organizations must identify (1) the purposes for any
collection of personal information at or before the time of collection and (2) any
new purposes before previously collected information is used for that purpose;253
 Consent—organizations must obtain individuals’ informed consent prior to
collecting, using, or disclosing personal information, except where
“inappropriate”;254
 Limiting collection—organizations must limit the collection of personal
information to “that which is necessary for the purposes identified by the
organization” and must use only “fair and lawful means” to do so;255
 Limiting use, disclosure, and retention—an organization must not use or disclose
information for purposes other than those for which it was collected, unless the
organization obtains consent or is required to do so by law, and an organization
must destroy, erase, or anonymize personal information no longer needed;256
 Accuracy—organizations must ensure personal information is “as accurate,
complete, and up-to-date as is necessary for the purposes for which it is to be
used”;257
 Safeguards—organizations must protect personal information with “safeguards
appropriate to the sensitivity of the information”258 and have a duty to notify the
OPC and individuals of data breaches;259
 Openness—organizations must make their privacy policies and practices “readily
available” to individuals;260
 Individual access—an organization must, on request, inform an individual of the
existence, use, and disclosure of the individual’s personal information and
provide the individual access to that information;261 and
 Challenging compliance—an organization must provide individuals with a
mechanism to chal enge the organization’s compliance with PIPEDA and to
receive and respond to complaints or inquiries about the organization’s
policies.262

252 PIPEDA sched. I, § 4.1.
253 Id. sched. I, § 4.2.
254 Id. sched. I, § 4.3.
255 Id. sched. I, § 4.4.
256 Id. sched. I, § 4.5.
257 Id. sched. I, § 4.6.
258 Id. sched. I, § 4.7.
259 Id. § 10.1.
260 Id. sched. I, § 4.8.
261 Id. sched. I, § 4.9.
262 Id. sched. I, § 4.10.
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Organizations may use personal information without consent in limited circumstances, such as
when necessary for law enforcement, litigation, or national security.263 Notably, an organization
may use personal information without an individual’s knowledge or consent “if it is used for the
purpose of acting in respect of an emergency that threatens the life, health or security of an
individual.”264
An individual who believes an organization has failed to comply with PIPEDA with respect to the
individual’s personal information may file a complaint with the OPC.265 In addition, the OPC can
initiate a complaint when there are “reasonable grounds to investigate a matter.”266 Once the OPC
receives a complaint, it begins an investigation that culminates in a report of findings and
recommendations but may not award damages to a complainant.267 Complainants may seek
review of the OPC’s decision in the Federal Court of Canada.268 Unlike the OPC, the Federal
Court is authorized to award damages for breaches of PIPEDA.269
Digital Contact Tracing in Canada
On July 31, 2020, the Government of Canada began rolling out COVID Alert, a voluntary digital
exposure notification app.270 The app, currently limited to two provinces, uses mobile devices’
Bluetooth radios to exchange randomly-assigned identifier codes.271 It then periodical y checks
those codes against a database of codes from users who have reported positive COVID-19 test
results.272 If a user has been near one of the codes linked to a COVID-19 diagnosis, the app wil
notify the user of the potential exposure.273
Before the app’s release, the OPC conducted a review to determine whether the app complied
with Canada’s privacy laws.274 It concluded that, because the app does not collect personal
information, only anonymous identifiers, Canada’s Privacy Act likely does not apply to the
app.275 The OPC recognized, however, that the data collected by the app is “extremely privacy
sensitive and the subject of reasoned concern for the future of democratic values” and that there

263 Id. §§ 7–9.
264 Id. § 7(2)(b).
265 Id. § 11(1).
266 Id. § 11(2).
267 Id. §§ 12–13.
268 Id. § 14.
269 Id. § 16.
270 Download COVID Alert Today, GOV’T OF CAN. (Sept. 15, 2020), https://www.canada.ca/en/public-health/services/
diseases/coronavirus-disease-covid-19/covid-alert.html; see also Ivan Semeniuk, Ottawa Launches ‘COVID Alert’ App
That Notifies Users About Contact with Coronavirus Cases, T HE GLOBE & MAIL (July 31, 2020), https://www.
theglobeandmail.com/canada/article-ottawa-launches-covid-alert -app-that-notifies-users-about -contact/; Emma Jacobs,
Canada Begins Rolling Out COVID Contact Notification App in Ontario, N. Country Pub. Radio (Aug. 4, 2020),
https://www.nort hcountrypublicradio.org/news/story/42046/20200804/canada-begins-rolling-out-covid-contact-
notification-app-in-ontario.
271 Download COVID Alert Today, supra note 270.
272 Id.
273 Id.
274 Privacy Review of the COVID Alert Exposure Notification Application, OFF. OF THE PRIV. COMM’R OF CAN. (July 31,
2020) [hereinafter Privacy Review], https://www.priv.gc.ca/en/privacy-topics/health-genetic-and-other-body-
information/health-emergencies/rev_covid-app/.
275 Id. (“T he Privacy Assessment affirms that COVID Alert does not collect any personal information, which suggests
that the federal Privacy Act does not apply.”).
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was a low risk of re-identification in limited circumstances.276 The OPC recommended modifying
Canada’s privacy laws to account for “a more nuanced approach” to whether the app’s data is
protected.277
Because the COVID Alert app is a government initiative that does not collect personal
information, it does not appear to be subject to either Canada’s Privacy Act or PIPEDA.
However, other contact-tracing apps could be subject to those laws’ provisions depending on who
runs the applications and what information they collect. Canadian courts have recognized that the
OPC has “jurisdiction to investigate complaints relating to the transborder flow of personal
information, including flows across the U.S. border.”278 Thus, if a U.S.-based company collects a
Canadian’s personal information through a digital contact-tracing app, that company might be
subject to PIPEDA with respect to that information.
European Union
Data privacy in the European Union is governed by the General Data Protection Regulation
(GDPR), a comprehensive privacy and data security framework adopted in May 2016 and in
force since May 2018.279 The objectives of the GDPR are to (1) protect individuals’ fundamental
rights and freedoms, “in particular their right to the protection of personal data,” and (2) ensure
free movement of personal data in the European Union.280 To that end, the GDPR imposes broad
obligations on any entity that processes personal data, either through automated means or as part
of a filing system.281 It also guarantees individuals certain rights with respect to their personal
data.282 EU member states are responsible for establishing supervisory authorities to enforce the
GDPR’s provisions,283 and individuals may lodge complaints with the supervisory authorities and
seek judicial review of the authorities’ decisions.284
Scope of the GDPR
The GDPR applies to the processing—including collection, storage, use, and disclosure—of
personal data either (1) “wholly or partly by automated means” or (2) “which form part of a filing
system or are intended to form part of a filing system.”285 It defines personal data as “any

276 Id.; see Elizabeth T hompson, COVID Alert App Could Result in Some People Being ID’d, CBC (Aug. 5, 2020),
https://www.cbc.ca/news/politics/covid-alert -app-privacy-1.5674392.
277 Privacy Review, supra note 274.
278 OFF. OF THE PRIV. COMM’R OF CAN., REPORT OF FINDINGS: COMPLAINT UNDER PIPIEDA AGAINST ACCUSEARCH INC.,
DOING BUSINESS AS ABIKA.COM ¶ 3 (July 27, 2009), ht t ps://www.priv.gc.ca/en/opc-act ions-and-decisions/invest igat ions/
investigations-into-businesses/2009/2009_009_rep_0731/.
279 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of
natural persons with regard to the processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation) [hereinafter GDPR], 2016 O.J. (L 119) 1; Data Privacy in the
EU, EUR. COMM’N, https://ec.europa.eu/info/law/law-topic/data-protection/data-protection-eu_en (last visited Aug. 17,
2020).
280 GDPR, supra note 279, art. 1, ¶¶ 2–3.
281 Id. art. 2, § 1; see id. arts. 5–6.
282 See id. ch. III.
283 See id. ch. VI.
284 Id. ch. VIII.
285 Id. art. 2, ¶ 1, art. 4, ¶ 2.
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information relating to an identified or identifiable natural person.”286 The GDPR applies to both
controllers—who “determine[] the purposes and means of the processing of personal data”—and
processors—who process personal data on behalf of a controller.287 Notably, the GDPR applies to
both private and governmental controllers and processors.288 It also applies to activities outside
the European Union, including (1) personal data processed outside the European Union by EU-
based controllers or processors; and (2) personal data processed by non-EU controllers or
processors concerning data subjects within the European Union in connection with commercial
activity or behavior monitoring.289
Data Controllers’ and Processors’ Obligations
Under the GDPR, data controllers and processors must satisfy a number of obligations with
respect to personal data. These obligations fal into seven broad categories: (1) lawfulness,
fairness, and transparency; (2) purpose limitation; (3) data minimization; (4) accuracy; (5) storage
limitation; (6) integrity and confidentiality; and (7) accountability.290 Furthermore, controllers and
processors may only process personal data if one of the following lawful bases applies:291
 The data subject has given consent;292
 Processing is necessary for reasons related to a contract with the data subject;293
 Processing is necessary to comply with a legal obligation;294
 Processing is necessary to protect the vital interests of the data subject or another
individual;295
 Processing is necessary to the public interest or to the exercise of official
authority;296 or
 Processing is necessary for legitimate interests that override the individual rights
and freedoms of the data subject.297
Controllers and processors must “implement appropriate technical and organizational measures”
to safeguard personal data and must notify the appropriate supervisory authority and affected
individuals in the event of a data breach.298

286 Id. art. 4, ¶ 1.
287 Id. art. 4, ¶¶ 7–8.
288 Cf. id. art. 2, ¶ 2(b), (d) (excluding processing by member states in connection with national security and law
enforcement activities). Although the European Union and its institutions are not directly covered by the GDPR, the
GDPR requires the European Union to adapt its governing privacy regulations to conform with the GDPR’s principles
and rules. Id. art. 2, ¶ 3.
289 Id. art. 3, ¶¶ 1–2.
290 Id. art. 5.
291 Id. art. 6, ¶ 1.
292 Id. art. 6, ¶ 1(a).
293 Id. art. 6, ¶ 1(b).
294 Id. art. 6, ¶ 1(c).
295 Id. art. 6, ¶ 1(d).
296 Id. art. 6, ¶ 1(e).
297 Id. art. 6, ¶ 1(f).
298 Id. arts. 25, 28, 32–34.
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Beyond these general obligations, the GDPR prohibits the processing of “special categories” of
personal data, including race, sexual orientation, political opinions, religious beliefs, and
biometric data, unless a controller or processor satisfies even stricter requirements.299 For
example, a controller or processor may process these special categories of data only if an
individual provides explicit—as opposed to general—consent or if necessary for certain
permissible purposes, such as legal proceedings, serving a substantial public interest (including
public health emergencies), or to protect the interests of an individual who is unable to give
consent.300
Individual Rights
In addition to the obligations that the GDPR places on data controllers and processors, it also
guarantees a number of rights to individuals with respect to their personal data. These include
rights of transparency as to how controllers and processors use their data and access to data held
by controllers and processors, including the right to know the purpose for which data is processed
and any recipients of the data.301 Individuals also have rights of rectification—or correction of
errors—and deletion of covered data, including the right of erasure or right to be forgotten when
a controller no longer has a legitimate need to retain the data.302 Final y, individuals have a right
to object to how controllers process their personal data, absent “compel ing legitimate grounds for
the processing which override the interests, rights and freedoms” of the individual.303
Enforcement
The GDPR requires EU member states to establish independent supervisory authorities to enforce
and promote the GDPR within each state.304 The supervisory authorities have broad investigative
and corrective powers, including the ability to impose fines and order the suspension of data
processing.305 In addition, the GDPR established a European Data Protection Board to ensure
uniform application of the GDPR across EU member states.306 The GDPR guarantees individuals
several enforcement mechanisms, including (1) lodging complaints with EU member states’
supervisory authorities;307 (2) seeking judicial review of a supervisory authority’s decision;308 and
(3) seeking a judicial remedy against a controller or processor in the courts of an EU member
state.309

299 Id. art. 9, ¶ 1.
300 Id. art. 9, ¶ 2.
301 Id. arts. 12–15.
302 Id. arts. 16–17.
303 Id. art. 21.
304 Id. arts. 54, 57.
305 Id. art. 58.
306 Id. arts. 68, 70.
307 Id. art. 77.
308 Id. art. 78.
309 Id. art. 79.
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Contact Tracing and the GDPR
As part of a coordinated, EU-wide response to the COVID-19 pandemic, most EU member states
have launched or are developing national contact-tracing apps.310 In addition, the European Data
Protection Board has developed guidelines on the use of location data in contact-tracing apps,311
and the European Commission has issued guidance on data protection standards with respect to
COVID-19-related apps.312 Notably, the European Commission has determined that location data
is “not necessary for the purpose of contact tracing and advises [member states] not to use
location data in this context.”313 In June, EU member states reached an agreement to make their
mobile contact-tracing apps interoperable, so that users throughout the European Union can
continue to use their home state’s app when traveling to other member states.314 The technical
standards underlying this agreement mandate that no geolocation data be used, only proximity
information “exchanged in an encrypted way that prevents the identification of an individual
person.”315
Given the extraterritorial reach of the GDPR, it is possible that U.S.-based contact-tracing apps
could be subject to the GDPR’s requirements in limited circumstances. For example, if an
individual instal s a U.S. contact-tracing app and then travels to the European Union, any data
collected by that application in the European Union would likely fal under the scope of the
GDPR.316 In addition, an EU company that deployed an app in the United States would likely also
be subject to the GDPR’s requirements.317
Legislation in the 116th Congress
In response to the ongoing COVID-19 pandemic, five data privacy bil s addressing digital contact
tracing and exposure notification have been introduced in the 116th Congress:
 The COVID-19 Consumer Data Protection Act of 2020 (CCDPA),318 introduced
by Senators Roger Wicker, John Thune, Jerry Moran, Marsha Blackburn, and
Deb Fischer on May 7, 2020;

310 See Coronavirus Response, EUR. COMM’N, https://ec.europa.eu/info/live-work-travel-eu/health/coronavirus-
response_en (last visited Sept. 22, 2020); EUR. COMM’N, MOBILE APPLICATIONS TO SUPPORT CONTACT TRACING IN THE
EU’S FIGHT AGAINST COVID-19: PROGRESS REPORTING JUNE 2020 at 4 (2020), available at https://ec.europa.eu/health/
sites/health/files/ehealth/docs/mobileapps_202006progressreport_en.pdf.
311 See EUR. DATA PROT. BD., GUIDELINES 04/2020 ON THE USE OF LOCATION DATA AND CONTACT TRACING TOOLS IN
THE CONTEXT OF THE COVID-19 OUTBREAK (2020), available at ht tps://edpb.europa.eu/our-work-t ools/our-document s/
guidelines/guidelines-042020-use-location-data-and-contact -tracing_en.
312 Coronavirus: Guidance to Ensure Full Data Protection Standards of Apps Fighting the Pandemic, EUR. COMM’N
(Apr. 16, 2020) [hereinafter Eur. Com m ’n Guidance], https://ec.europa.eu/commission/presscorner/detail/en/
ip_20_669; see also Commission Implementing Decision (EU) 2020/1023 of 15 July 2020, amending Implementing
Decision (EU) 2019/1765 as regards the cross-border exchange of data between national contact tracing and warning
mobile applications with regard to combatting the COVID-19 pandemic, 2020 O.J. 227/I.
313 Eur. Comm’n Guidance, supra note 312.
314 Coronavirus: Member States Agree on an Interoperability Solution for Mobile Tracing and Warning Apps, EUR.
COMM’N (June 16, 2020), https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1043.
315 Id.
316 See GDPR, art. 3, ¶ 2(b).
317 See id. art. 3, ¶ 1.
318 COVID-19 Consumer Data Protection Act of 2020 (CCDPA), S. 3663, 116th Cong. (2020).
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 The Public Health Emergency Privacy Act (PHEPA),319 companion bil s
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;
 The Exposure Notification Privacy Act (ENPA),320 introduced by Senators Maria
Cantwel and Bil Cassidy on June 1, 2020; and
 The Secure Data and Privacy for Contact Tracing Act of 2020 (SDPCTA),321
introduced by Representatives Jackie Speier, Diana DeGette, Debbie Dingel ,
Andre Carson, Nanette Diaz Barragan, Stephen F. Lynch, Jamie Raskin, Michael
F.Q. San Nicolas, Mark Takano, and Alcee L. Hastings on July 1, 2020.
This section describes the main components of each bil and examines some key differences
among the proposals.
Key Provisions and Major Differences
The CCDPA, PHEPA, and ENPA would each take a similar approach to regulating contact-tracing
data. Under each bil , a covered entity would have to take certain steps before and after collecting
covered data, and each bil would grant certain rights to individuals over collected data. In
addition, each bil would create enforcement mechanisms to ensure that covered entities comply
with their obligations regarding covered data. But there are several major differences among the
bil s, including the types of entities they cover and the precise rights they afford to individuals.
While the CCDPA and PHEPA would apply specifical y to the current COVID-19 pandemic,322
the ENPA would not be limited to the current public health emergency.323 The ENPA, however,
would apply only to data collected by an automated exposure notification service, which it
defines as a tool for “digital y notifying, in an automated manner, an individual who may have
become exposed to an infectious disease.”324
In contrast, the SDPCTA would authorize the CDC to award grants to eligible state, tribal, and
territorial public health authorities to establish contact-tracing programs, including digital
contact-tracing solutions, or incorporate digital contact tracing into existing programs.325 As a
condition for the use of grant awards for digital contact tracing, the SDPCTA would require
public health authorities to satisfy several requirements, including obtaining users’ voluntary,
informed consent;326 limiting the data collected;327 and providing for the deletion of data.328
The key provisions of each bil are discussed below, and Table 1 summarizes their main
differences.

319 Public Health Emergency Privacy Act (PHEPA), S. 3749, 116th Cong. (2020); PHEPA, H.R. 6866, 116th Cong.
(2020).
320 Exposure Notification Privacy Act (ENPA), S. 3861, 116th Cong. (2020).
321 Secure Data and Privacy for Contact T racing Act of 2020 (SDPCT A), H.R. 7472, 116th Cong. (2 020).
322 See CCDPA § 2(8) (defining “COVID-19 public health emergency”); PHEPA § 2(13) (same).
323 See ENPA § 2(3)–(4) (applies in cases of exposure to individuals diagnosed with “an infectious disease”).
324 Id. § 2(4)(A).
325 SDPCT A § 2(a).
326 Id. § 2(c)(1).
327 Id. § 2(c)(2).
328 Id. § 2(c)(3).
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Covered Data
Each bil would general y 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, and personal health information.”329 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.330 The CCDPA, PHEPA, and ENPA would 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.331
Covered Entities
Each bil 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.332 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.333 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.334 In
contrast, the SDPCTA would apply only to public health authorities who receive CDC grants to
develop digital contact-tracing tools.335
Covered Entities’ Obligations
Each bil would impose obligations on covered entities with respect to covered data. Specifical y,
the CCDPA, PHEPA, ENPA, and, where noted, SDPCTA would require a covered entity to:
 Not disclose or transfer an individual’s data for any purposes other than those
enumerated in the bil s (also a requirement under the SDPCTA);336

329 CCDPA § 2(6). T he CCDPA defines persistent identifier as “a technologically derived identifier that identifies an
individual, or is linked or reasonably linkable to an individual over time,” including “a customer number held in a
cookie, a static Internet Protocol (IP) address, a processor or device serial number, or another unique device identifier.”
Id. § 2(13).
330 ENPA § 2(6).
331 CCDPA § 2(6)(b)(iv) (excluding “employee screening data”); id. § 2(10) (defining employee screening data as
“covered data of an individual who is an employee, owner, director, officer, staff member, trainee, vendor, visitor,
intern, volunteer, or contractor of the covered entity” that is used “for the purpose of determining, for purposes relate d
to the COVID-19 public health emergency, whether the individual is permitted to enter a physical site of operation of
the covered entity”).
332 See CCDPA § 2(7); ENPA §§ 2(11), 10(a)(4).
333 CCDPA § 2(7)(C).
334 PHEPA § 2(4).
335 SDPCT A § 2(c).
336 CCDPA § 3(a), (b); PHEPA § 3(a), (c); ENPA § 5; SDPCT A § 2(h).
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 Publish a privacy policy to provide notice as to the type of data the entity
collects, the purpose of the collection, how the entity wil use collected data, and
an individual’s rights with respect to the data;337
 Obtain an individual’s affirmative express consent before collecting that
individual’s data (also a requirement under the SDPCTA);338
 Provide an individual with the right to opt out of collection by withdrawing
consent;339
 Minimize the amount of data collected to only that necessary for the service (also
a requirement under the SDPCTA);340
 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 SDPCTA or on a thirty-day rolling
basis under the ENPA;341 and
 Safeguard an individual’s data by adopting appropriate data security measures
(also a requirement under the SDPCTA).342
Along with these obligations, several additional protections are common to several of the bil s.
For example, both the CCDPA and PHEPA would require covered entities to provide a
mechanism for an individual to correct inaccurate data.343 Also of note, the PHEPA, ENPA, and
SDPCTA would prohibit discrimination against an individual based on covered data.344
Enforcement
The CCDPA, PHEPA, and ENPA would vest the FTC with enforcement authority through agency
and judicial proceedings.345 The bil s would also al ow state attorneys general to enforce the bil s’
provisions in court.346 The PHEPA would provide a new private right of action that would al ow
individuals to sue covered entities for violations.347 And the ENPA would preserve an individual’s
ability to use existing remedies under federal or state law to enforce its provisions.348 In contrast,
the SDPTCA does not have an enforcement provision per se; instead, it would condition the
award of CDC grants on compliance with its guidelines.349

337 CCDPA § 3(c)(1); PHEPA § 3(e); ENPA § 4(b).
338 CCDPA § 3(a); PHEPA § 3(d)(1); ENPA § 4(a); SDPCT A § 2(c)(1)(A).
339 CCDPA § 3(d); PHEPA § 3(d)(2); ENPA § 4(a)(1)(B).
340 CCDPA § 3(g); PHEPA § 3(a)(1); ENPA § 5(a)(1); SDPCT A § 2(c)(2).
341 CCDPA § 3(e); PHEPA § 3(g); ENPA § 6; SDPCT A § 2(c)(3)(A).
342 CCDPA § 3(h); PHEPA § 3(b); ENPA § 7; SDPCT A § 2(g).
343 CCDPA § 3(f); PHEPA § 3(a)(2).
344 PHEPA § 3(a)(3), (c)(2)–(3); ENPA § 8; SDPCT A § 2(c)(1)(B)–(C).
345 CCDPA § 4(a); PHEPA § 6(a); ENPA § 10(a).
346 CCDPA § 4(c); PHEPA § 6(b); ENPA § 10(b).
347 PHEPA § 6(c).
348 ENPA § 10(d).
349 SDPCT A § 2(b).
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Relationship to State Laws
Both the PHEPA and ENPA explicitly provide that their provisions would not preempt or
supersede any state laws.350 In contrast, the CCDPA would prohibit states from adopting or
enforcing any laws or regulations governing the use of covered data.351 The SDPCTA does not
speak to its effect on state laws.

350 PHEPA § 7; ENPA § 10(c).
351 CCDPA § 6(b)(3).
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Table 1.COVID-19 Data Privacy Bills: Comparison of Main Differences
PHEPA, S. 3749
SDPCTA, H.R. 7472
Provision
CCDPA, S. 3663
and H.R. 6866
ENPA, S. 3861
Covered Data—

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

In General
Any entity or person engaged in
Any entity or person engaged in
An operator of an automated
State, tribal, and territorial public
contact tracing that is subject to
contact tracing, including
exposure notification service that
health authorities who receive
the FTC Act, a common carrier,
government entities (§ 2(4)(A))
is subject to the FTC Act, a
CDC grant funds to develop
or a nonprofit (§ 2(7))
common carrier, or a nonprofit
digital contact-tracing applications
(§§ 2(11), 10(a)(4))
(§ 2(a)-(c))
Exclusions
Service providers (§ 2(7)(C))
Health care providers; persons
Public health authorities (§ 2(11))
N/A
engaged in de minimis col ection;
service providers; persons acting
in their individual or household
capacity; and public health
authorities (§ 2(4)(B))
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PHEPA, S. 3749
SDPCTA, H.R. 7472
Provision
CCDPA, S. 3663
and H.R. 6866
ENPA, S. 3861
Non-Discrimination
No protections
Covered entities must adopt
Prohibits discrimination by any
Prohibits conditioning
reasonable safeguards against
person or entity based on
employment or government
discrimination (§ 3(a)(3));
covered data (§ 8)
benefits on the use of digital
government entities may not use
contact-tracing applications
data to interfere with voting
(§ 2(c)(1)(B)-(C))
rights (§ 4)
Enforcement
FTC; state attorneys general
FTC; state attorneys general; new
FTC; state attorneys general;
None per se; provides for
(§ 4(a), (c))
private right of action (§ 6)
existing private rights of action
revocation of CDC grant funds
(§ 10)
for non-compliance (§ 2(b)).
Preemption
Preempts state laws and
Adopts reasonable safeguards to
Does not “preempt, displace, or
N/A
regulations governing covered
prevent unlawful discrimination
supplant” state laws (§ 10(c))
entities’ use of covered data
on the basis of emergency health
(§ 4(b)(3))
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 date
N/A
last day of the COVID-19 public
through the end of the COVID-
of enactment (§ 10(g))
health emergency (§ 2(8))
19 public health emergency
(§§ 2(13), 8)
Source: Created by CRS using information from CCDPA, S. 3663; PHEPA, S. 3749 and H.R. 6866; ENPA, S. 3861, and SDPCTA, H.R. 7472 , as introduced.

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Digital Contact Tracing and Data Protection Law

Considerations for Congress
As state and local authorities implement digital contact-tracing apps to combat the COVID-19
pandemic,352 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 may be subject to existing federal and state privacy protections, including
HIPAA and the CCPA. But existing federal privacy laws do not protect al contact-tracing data,353
and state laws—where they exist—impose a patchwork of requirements.354 Moreover, depending
on the type of information collected by an app, it may be subject to foreign and international laws
in addition to domestic law.
No single federal law creates consistent, clearly applicable privacy protections for information
that likely would be gathered and used in contact-tracing activities. In the context of digital
contact tracing, state and local health departments conducting contact tracing and the app
developers that assist them in that activity may not qualify as covered entities or business
associates subject to HIPAA’s requirements. Other federal laws, such as the FTC Act and
Communications Act, may provide some privacy protections when HIPAA does not apply. Yet the
reach of these laws is also limited. The FTC Act, for example, does not require entities to adopt
particular privacy practices; it only takes enforcement action against corporate and private actors
that it believes are engaged in unfair or deceptive conduct. Likewise, the Communications Act’s
CPNI protections are limited in scope and apply only to telephone carriers.
Pending legislation may offer a path forward. 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. Two of the biggest divergences among the bil s—whether to include a private
right of action and whether to preempt state law—mirror differences in general data privacy bil s
introduced at the end of 2019 and earlier this year.355 Those provisions were “key sticking
point[s]” in the debate over generally-applicable data privacy legislation,356 and Congress has yet
to reach a consensus on these issues.
It also is not clear how much of an impact a law based on current legislative proposals would
have on state-run digital contact-tracing apps. The CCDPA would apply only to private entities,
and both the PHEPA and ENPA specifical y would exclude public health authorities from their
coverage (though the PHEPA would apply to other government entities).357 And while the
SDPCTA would cover apps developed by public health authorities, it would be limited to those
authorities that receive CDC grant funds.358

352 David Ingram, Coronavirus Contact Tracing Apps Were Tech’s Chance To Step Up. They Haven’t., NBC NEWS
(June 12, 2020, 7:49 AM), https://www.nbcnews.com/tech/tech-news/coronavirus-contact -tracing-apps-were-tech-s-
chance-step-they-n1230211.
353 Joy Pritts, INSIGHT: Covid-19 Privacy Bills—Is There Room for Compromise?, BLOOMBERG LAW (June 15, 2020,
4:01 AM), https://news.bloomberglaw.com/us-law-week/insight -55.
354 See Mitchell Noordyke, US State Comprehensive Privacy Law Comparison, INT’L ASS’N OF PRIV. PROF’LS V(July 6,
2020), https://iapp.org/resources/article/state-comparison-table/.
355 See Müge Fazlioglu, Deja Vu? The Politics of Privacy Legislation During COVID-19, INT’L ASS’N OF PRIV. PROF’LS
(May 21, 2020), https://iapp.org/news/a/deja-vu-the-politics-of-privacy-legislation-during-covid-19/.
356 Rebecca Kern & Daniel R. Stoller, Bipartisan Privacy Talks Split With Second Senate GOP Bill (1), BLOOMBERG
GOV’T (Mar. 12, 2020), https://about.bgov.com/news/bipartisan-privacy-talks-split-with-second-senate-gop-bill-1/.
357 See CCDPA § 2(7); PHEPA § 2(4); ENPA § 2(11).
358 SDPCT A § 2(a)-(c).
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Should Congress choose to move forward with legislation regulating digital contact tracing, it
may consider regulating public health authorities in addition to private entities. (For a discussion
of whether Congress has the power to do so, see CRS Legal Sidebar LSB10502, Constitutional
Authority to Regulate the Privacy of State-Collected Contact-Tracing Data, by Edward C. Liu.)
Congress may also consider how other jurisdictions, such as Canada and the European Union,
have interpreted their existing privacy laws with respect to digital contact tracing. Examining how
those laws apply and where there are gaps in their coverage could potential y help Congress craft
a law that reflects the unique chal enges in regulating digital contact tracing.
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Appendix A. Digital Contact Tracing Apps By State
As of September 24, 2020, the following states have either introduced or announced plans to
introduce a digital contact tracing app.
In addition to these apps, Maryland, Nevada, Virginia, and the District of Columbia have al
announced support for Exposure Notifications Express, a digital contact tracing solution that does
not require a jurisdiction-specific app.
Technology
State
App Name
Used
Status
Notes
Alabama
GuideSafe
Proximity
Released

Arizona
Covid Watch
Proximity
Released
Available for University of Arizona
Arizona
students as part of phased rol out
Delaware
COVID Alert DE
Proximity
Released

Nevada
COVID Trace
Proximity
Released

New Jersey

Proximity
Announced Pilot app currently being tested at
col ege campuses and by state employees
North Dakota
Care19 Alert
Proximity
Released

North Dakota
Care19 Diary
Location
Released

Pennsylvania
COVID Alert PA
Proximity
Released

Rhode Island
CRUSH COVID RI
Location
Released

South Dakota
Care19 Diary
Location
Released
South Dakota and Wyoming use North
Dakota’s Care19 Diary app.
Wyoming
Care19 Alert
Proximity
Released
Wyoming uses North Dakota’s Care19
Alert app.
Source: CRS review and analysis of available information.

Author Information

Jonathan M. Gaffney
Chris D. Linebaugh
Legislative Attorney
Legislative Attorney

Eric N. Holmes

Legislative Attorney

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Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should n ot be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

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