Sec. 2. Definitions
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In this Act: The term affirmative express consent means an affirmative act by an individual that— clearly and conspicuously communicates the individual’s authorization of an act or practice; is made in the absence of any mechanism in the user interface that has the purpose or substantial effect of obscuring, subverting, or impairing decision making or choice to obtain consent; and cannot be inferred from inaction. The term collect , with respect to emergency health data, means obtaining in any manner by a covered organization.
The term Commission means the Federal Trade Commission. The term covered organization means any person (including a government entity)— that collects, uses, or discloses emergency health data electronically or through communication by wire or radio; or that develops or operates a website, web application, mobile application, mobile operating system feature, or smart device application for the purpose of tracking, screening, monitoring, contact tracing, or mitigation, or otherwise responding to the COVID–19 public health emergency.
The term covered organization does not include— a health care provider; a person engaged in a de minimis collection or processing of emergency health data; a service provider; a person acting in their individual or household capacity; or a public health authority. The term demographic data means information relating to the actual or perceived race, color, ethnicity, national origin, religion, sex, gender, gender identity, sexual orientation, age, Tribal affiliation, disability, domicile, employment status, familial status, immigration status, or veteran status of an individual or group of individuals.
The term device means any electronic equipment that is primarily designed for or marketed to consumers. The term disclosure , with respect to emergency health data, means the releasing, transferring, selling, providing access to, licensing, or divulging in any manner by a covered organization to a third party. The term emergency health data means data linked or reasonably linkable to an individual or device, including data inferred or derived about the individual or device from other collected data provided such data is still linked or reasonably linkable to the individual or device, that concerns the public COVID–19 health emergency.
Such data includes— information that reveals the past, present, or future physical or behavioral health or condition of, or provision of healthcare to, an individual, including— data derived from the testing or examination of a body part or bodily substance, or a request for such testing; whether or not an individual has contracted or been tested for, or an estimate of the likelihood that a particular individual may contract, such disease or disorder; and genetic data, biological samples, and biometrics; and other data collected in conjunction with other emergency health data or for the purpose of tracking, screening, monitoring, contact tracing, or mitigation, or otherwise responding to the COVID–19 public health emergency, including— geolocation data, when such term means data capable of determining the past or present precise physical location of an individual at a specific point in time, taking account of population densities, including cell-site location information, triangulation data derived from nearby wireless or radio frequency networks, and global positioning system data; proximity data, when such term means information that identifies or estimates the past or present physical proximity of one individual or device to another, including information derived from Bluetooth, audio signatures, nearby wireless networks, and near-field communications; demographic data; contact information for identifiable individuals or a history of the individual’s contacts over a period of time, such as an address book or call log; and any other data collected from a personal device.
The term government entity includes a Federal agency, a State, a local government, and other organizations, as such terms are defined in section 3371 of title 5, United States Code. The term health care provider has the meaning given the term eligible health care provider in title VIII of division B of the CARES Act ( Public Law 116–136 ). The term HIPAA regulations means parts 160 and 164 of title 45, Code of Federal Regulations. The term public health authority means an entity that is authorized by law to collect or receive information for the purpose of preventing or controlling disease, injury, or disability including, but not limited to, the reporting of disease, injury, vital events such as birth or death, and the conduct of public health surveillance, public health investigations, and public health interventions, and a person, such as a designated agency or associate, acting under a grant of authority from, or under a contract with, such public entity, including the employees or agents of such entity or its contractors or persons or entities to whom it has granted authority.
The term COVID–19 public health emergency means the outbreak and public health response pertaining to Coronavirus Disease 2019 (COVID–19), associated with the emergency declared by the Secretary on January 31, 2020, under section 319 of the Public Health Service Act ( 42 U.S.C. 247d ), and any renewals thereof and any subsequent declarations by the Secretary related to the coronavirus. The term Secretary means the Secretary of Health and Human Services. The term service provider means a person that collects, uses, or discloses emergency health data for the sole purpose of, and only to the extent that such entity is, conducting business activities on behalf of, for the benefit of, under instruction of, and under contractual agreement with a covered organization.
Such person shall only be considered a service provider in the course of activities described in subparagraph (A). The term service provider excludes a person that develops or operates a website, web application, mobile application, or smart device application for the purpose of tracking, screening, monitoring, contact tracing, or mitigation, or otherwise responding to the COVID–19 public health emergency. The term State means each State of the United States, the District of Columbia, each commonwealth, territory, or possession of the United States, and each federally recognized Indian Tribe.
The term third party means, with respect to a covered organization— another person to whom such covered organization disclosed emergency health data; and a corporate affiliate or a related party of the covered organization that does not have a direct relationship with an individual with whom the emergency health data is linked or is reasonably linkable. The term third party excludes, with respect to a covered organization— a service provider of such covered organization; or a public health authority.
The term use , with respect to emergency health data, means the processing, employment, application, utilization, examination, or analysis of such data by a covered organization that maintains such data.
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