COVID-19 may push Congress to tighten online privacy — or stoke old feuds

The COVID-19 pandemic is shaping up as a new chapter in the fight over sweeping federal online privacy legislation that grew out of the 2016 election before stalling, dramatically and repeatedly. Now, a group of powerful Senate Republicans is looking to push coronavirus-related data privacy provisions through the next economic stimulus package.

Senate Commerce Committee Chairman Roger Wicker's announcement Thursday that he and other key Republicans on the committee will introduce legislation to regulate virus tracking signaled new congressional energy to pass a narrowly tailored privacy bill in light of a larger global reckoning over how governments and companies use data to surveil and potentially defeat the virus.

A Senate aide told Protocol that the lawmakers may seek to roll the COVID-19 data privacy legislation into the upcoming "Phase 4" package, which lawmakers are already feuding over, if Democrats get on board. That could make it much more likely to pass.

The bill, obtained by Protocol and circulated to stakeholders Thursday night, would draw new safeguards around any personal health, geolocation and proximity data used for coronavirus-related projects, a much narrower approach than the long-debated comprehensive federal privacy bill.

But it's the most significant sign of life for any privacy bill in months, as bipartisan talks had stalled over disagreements around whether privacy legislation would override state laws (a Republican priority) and whether it would allow individuals to sue companies (a Democratic ask). The jumbled effort to come up with privacy legislation has dragged on since Cambridge Analytica, even as the European Union stiffened its rules and tech companies focused on lobbying state by state.

"As the coronavirus continues to take a heavy toll on our economy and American life, government officials and health care professionals have rightly turned to data to help fight this global pandemic," Wicker, of Mississippi, said in a statement. "This data has great potential to help us contain the virus and limit future outbreaks, but we need to ensure that individuals' personal information is safe from misuse."

The senators could capitalize on the newfound scrutiny of coronavirus-related technologies to push through a few of their broader priorities. Significantly, the provisions would "preempt," or override, any state laws. Democrats have long railed against preemption, saying it prevents states from passing even tougher privacy laws of their own. The tech industry on the whole has fought hard for one national standard, saying it's harder to do business with a patchwork of rules.

Aaron Cooper, vice president of global policy for software trade association BSA, said the legislation could help ensure all companies "play by the same rules and make sure consumers across the country have the same expectations." The bill, he said, "stands for the proposition that we shouldn't be sacrificing privacy or security while we're responding to the COVID crisis." BSA counts Salesforce, Microsoft, Intel and Adobe as members.

The legislation would apply to projects that use data to track the spread of the virus, measure whether individuals are complying with social distancing guidelines, and alert individuals when they've potentially been exposed.

It would prevent companies from repurposing data they collect for those projects, and it would bar companies from collecting more data than they need. It would also require companies to protect the security of the data collected for COVID-19 projects.

"These limitations will help ensure that companies don't take advantage of people's very real need and desire for information and services during this emergency," said Michelle Richardson, director of the Center for Democracy and Technology's data and privacy project.

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Sen. Richard Blumenthal of Connecticut, a key Democrat on the Commerce Committee, said in a statement that he agrees "the crisis has made urgently clear the need for strong, reliable protections for privacy and security of personal data."

"I share concerns about misuse and abuse of health and location data collected during the pandemic," Blumenthal said. "As just one example, there is certainly a need for clear guardrails concerning information resulting from testing and contact tracing."

The committee is not dropping its commitment to someday passing the country's first comprehensive privacy law.

"As Congress seeks to enact a uniform comprehensive data privacy and security framework, thoughtful and targeted legislative efforts, like this bill, will address specific consumer privacy violations resulting from COVID-19," said Republican Sen. Jerry Moran, one of the bill's co-sponsors.