Senate Bill: Health and Location Data Protection Act (HLDPA)
When the holding in Dobbs v. Jackson Women’s Health Organization (2022) came out on June 24, many representatives from the left tried to protect Americans who leave their state to obtain a legal abortion. The bill, introduced by Senator Elizabeth Warren, bans data brokers from selling Americans’ health and location information. The legislation is cosponsored by Senators Ron Wyden (D-Ore.), Chair of the Senate Finance Committee; Patty Murray (D-Wash.), Chair of the Senate Health, Education, Labor and Pensions Committee; Sheldon Whitehouse (D-R.I.); and Bernie Sanders (I-Vt.), Chair of the Senate Budget Committee.[1] The Act comes following reports that brokers were selling location data on people visiting abortion clinics in and out of state. There have been concerns that harvesting health and location data could be used for profiling, exploiting, and even spying on citizens.
What are Data Brokers?
A data broker is a business that “aggregates information from a variety of sources that processes the data to enrich, cleanse or analyze it and licenses it to other organizations.”[2] The business is virtually an “unregulated” practice in the United States while major data brokerage firms are presently offering quantities of data on U.S. individuals for sale.[3] People’s sensitive data is typically not sold as a one-time exchange but rather involves subscriptions type services similar to Netflix or Disney+.[4] Imagine if you could simply type in a name and instantly get a report of all people, businesses, assets, civil/criminal matters, and other details connected to that individual. So precise that you could even get down to professional licenses, neighboring households, and the type of coffee creamer you add to your mug in the morning.
By 2013, the process of digitalization and datafication (the application of the software that allows computers and algorithms to process and analyze raw data) combined with new and cheaper storage technologies had translated 98 percent of the world’s information into a digital format.[5] Global revenue for data broker services and products is expected to increase 56-fold, from $644 million in 2016 to $36 billion in 2025.[6]
How Does HLDPA Help?
Under the text of HLDPA, the act makes it unlawful for any data broker to “sell, resell, license, trade, transfer, share, or otherwise provide or make available: (1) location data, (2) health data, (3) other categories of data identified by Commission that address or reveal a category of data described before.” The act however does provide exceptions to sharing your personal health and location information. Any entity or exception under HIPAA, the Health Insurance Portability and Accountability Act, that is able to share the same information preempts HLDPA.
The Federal Trade Commission will enforce the policy along with state attorneys general. The HLDPA also allows a private right of action which will allow an injured person to sue to enforce the provision of the law.[7] The FTC will receive $1 billion in funding over the next 10 years to “carry out its work, including the enforcement of [HLDPA].”[8] The bill was introduced on June 15, 2022, and is waiting for Senate deliberation after being read twice and referred to the Committee on Commerce, Science, and Transportation.[9]
[1] Warren, Wyden, Murray, Whitehouse, Sanders, Introduce Legislation to Ban Data Brokers from Selling Americans’ Location and Health Data, Elizabeth Warren Campaign Website, (Jun. 15, 2022), https://www.warren.senate.gov/newsroom/press-releases/warren-wyden-murray-whitehouse-sanders-introduce-legislation-to-ban-data-brokers-from-selling-americans-location-and-health-data
[2] Gartner, Data Broker (last viewed on July 12, 2022), https://www.gartner.com/en/information-technology/glossary/data-broker.
[3] Justin Sherman, Data Brokers and Sensitive Data on U.S. Individuals: Threats to American Civil Rights, National Security, and Democracy, Duke Sanford (2021), https://sites.sanford.duke.edu/techpolicy/wp-content/uploads/sites/17/2021/08/Data-Brokers-and-Sensitive-Data-on-US-Individuals-Sherman-2021.pdf.
[4] Supra, Garner note 1.
[5] Martin Hilbert, Big Data for Development: From Information to Knowledge Societies, United Nations ECLAC Report, Social Science Research Network (2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id+2205145.
[6] Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power 188 (Profile Books eds., 2019).
[7] Anusuya Datta, New Bill May Ban the Sale of Location Data in the US, GW Prime (Jun. 21, 2022), https://www.geospatialworld.net/prime/prime-opinion/new-bill-may-ban-the-sale-of-location-data-in-us/.
[8] Id.
[9] Congress, S.4408 – Health and Location Data Protection Act of 2022, https://www.congress.gov/bill/117th-congress/senate-bill/4408?s=1&r=1 (last visited on Jul. 14, 2022)