S-4946-119
Read twice and referred to the Committee on Commerce, Science, and Transportation.
Sponsored by Elizabeth Warren (D-MA)
What it does
This bill would prohibit data brokers from selling, sharing, or transferring location data and health data about individuals, and would prohibit anyone from selling such data to a data broker. It directs the Federal Trade Commission to issue implementing rules within 180 days, exempts HIPAA-covered entities, newsworthy publications, and disclosures made with individual authorization, and creates enforcement mechanisms for the FTC, state attorneys general, and private individuals, including civil penalties of up to 15% of a violating company's parent entity's annual revenue.
Who benefits
Consumers and patients whose location and health data would no longer be sold without their consent, including people seeking reproductive health care, mental health treatment, or substance abuse services who face risks from data exposure. Privacy advocacy groups, and state attorneys general who gain enforcement authority. Indirectly, companies that do not rely on data brokering may benefit from reduced competitive disadvantage.
Who is hurt
Data brokers and companies whose business models depend on selling location or health data would lose revenue streams and face compliance costs. Advertisers, marketers, and analytics firms that purchase such data for targeting purposes would lose access to it. Smaller data companies may face disproportionate compliance burdens compared to larger firms with legal resources. The FTC would need to build new enforcement capacity, and businesses generally may face litigation risk given the private right of action and steep penalties.
Supporters argue
Supporters argue that the sale of location and health data creates serious privacy and safety risks, citing documented cases where location data revealed visits to reproductive health clinics, domestic violence shelters, or addiction treatment centers, sometimes without any legal restriction after Dobbs v. Jackson shifted abortion policy to the states. They contend that existing law leaves a regulatory gap for non-HIPAA-covered data brokers and that a federal ban with strong enforcement, including state and private rights of action, is necessary because self-regulation and existing FTC authority have not stopped these sales.
Opponents argue
Opponents argue that a blanket ban on selling categories of data, combined with penalties reaching 15% of a parent company's total revenue, is disproportionate and could sweep in legitimate business uses such as fraud prevention, product improvement, or academic research that rely on location or health-adjacent data. They contend that delegating the definition of "data" and additional covered categories to FTC rulemaking raises concerns about agency authority given that courts now require clear congressional authorization for economically significant rules and no longer defer to agency interpretations of ambiguous statutes.
Constitutional context
Congress regulates data brokers as commercial actors under the Commerce Clause, and the FTC's rulemaking authority to define "data" and add covered categories will be tested under the post-Loper Bright standard requiring independent judicial review, and potentially the major questions doctrine given the sweeping penalty structure. Businesses may also raise First Amendment commercial speech arguments regarding restrictions on data sales, an issue courts have addressed inconsistently in prior data-privacy cases like Sorrell v. IMS Health.
Checks and balances
Congress delegates broad rulemaking and enforcement authority to the FTC, with courts reviewing agency rules independently post-Loper Bright and state attorneys general and private plaintiffs providing additional enforcement checks outside the executive branch.
Historical precedent
Several states, including California, Vermont, and Washington, have enacted data broker registration and health/location data restrictions, most notably Washington's My Health My Data Act, though this would be the first comprehensive federal prohibition of its kind.