Sec. 104. Right of portability
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/bill/118/hr/2701/ih/section-104A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Not less frequently than once per calendar year, the Director shall— establish categories of products and services offered by covered entities, based on similarities in the products and services; determine which categories established under subparagraph
(A)are portable categories; and publish in the Federal Register a list of portable categories determined under subparagraph (B). Before publishing the final list under paragraph (1)(C), the Director shall— publish a draft of such list in the Federal Register; and provide an opportunity for public comment on such draft list. A covered entity that offers a product or service in a portable category and that maintains personal information or the contents of any communications of an individual shall make available to such individual a reasonable mechanism by which such individual may— download, in a format that is structured, commonly used, and machine readable— any such personal information that such individual has provided to such covered entity, with the option to download such information by category that is accessible under section 101; and the contents of any such communications; and using a real-time application programming interface, or similar mechanism, transmit all such personal information (whether or not provided to such covered entity by such individual) and the contents of any such communication from such covered entity to another covered entity in accordance with subsection (c). The application programming interface, or similar mechanism, required by paragraph (1)(B) shall— be publicly documented; allow the option of obtaining any personal information of an individual that the individual has provided to the covered entity, if such information is accessible under section 101; include a publicly available, fully functional test version for development purposes; and be of similar quality to mechanisms used internally by the covered entity. Except as provided in paragraph (2)(A), a covered entity shall provide access to the application programming interface or similar mechanism required by subsection (b)(1)(B) upon the request of another covered entity if the requesting covered entity has self-certified, using the procedures established by the Director under paragraph (3)(A), that such requesting covered entity— is a covered entity; can have personal information disclosed to it under section 204; is, at the time of the self-certification, in compliance with all applicable requirements of this Act (including provisions a small business is otherwise exempt from complying with); will continue to comply with all requirements of this Act; and will only use such application programming interface or similar mechanism at the express request of an individual. A covered entity may deny access to the application programming interface or similar mechanism required by subsection (b)(1)(B) if such covered entity has an objective, reasonable belief that the requesting covered entity has failed to meet the requirements for self-certification under paragraph (1). In accordance with the procedures established under paragraph (3)(B), a covered entity the request of which is denied under subparagraph
(A)may petition the Director for review of the denial. If the Director finds that such denial is unreasonable, the Director shall impose a penalty, to be established in such procedures, on the covered entity that denied the request. The Director shall establish— procedures for a covered entity to self-certify under paragraph (1); and procedures for the review of petitions under paragraph (2)(B), including penalties for unreasonable denials. This section does not apply to a small business. In this section, the term portable category means a category of products and services established by the Director under subsection (a)(1)(A)— for which the sum obtained by adding the number of users or estimated users of each product or service in such category is greater than 10,000,000; and that— has an estimated Herfindahl-Hirschman Index of 2,000 or greater; has 3 or fewer covered entities offering products and services in such category; or the Director otherwise determines that a category would benefit from encouraging increased competition.