BILL ANALYSIS Ó AB 2688 Page 1 ASSEMBLY THIRD READING AB 2688 (Gordon) As Amended April 28, 2016 Majority vote ------------------------------------------------------------------ |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+----------------------+--------------------| |Privacy |8-0 |Chau, Calderon, | | | | |Chang, Cooper, | | | | |Dababneh, Gatto, | | | | |Gordon, Low | | | | | | | | | | | | ------------------------------------------------------------------ SUMMARY: Prohibits the operator of a commercial health monitoring program, such as a wearable fitness device connected to the Internet, from sharing or using a consumer's health monitoring information without explicit authorization, and prohibits employers from using health monitoring information collected through a commercial health monitoring program from discriminating against employees. Specifically, this bill: 1)Prohibits an operator of a commercial health monitoring program from intentionally sharing, selling or disclosing AB 2688 Page 2 health monitoring information to or with a third party without first obtaining from the consumer explicit opt-in authorization, as specified. 2)The opt-in authorization request must fulfill the following requirements: a) Be clear, conspicuous and separate from all other authorizations or agreements; b) Include the name and nature of the third party and the reason for the request; c) Be limited to a single third-party entity; d) Provide that a consumer's refusal to authorize third-party disclosure of health monitoring information shall not limit the consumer's ability to use the commercial health monitoring program even if features and services provided by the specific third party are inoperable; e) State that a consumer has the right to revoke the authorization at any time without cost or penalty by a readily accessible method. 3)Specifies that an authorization is not required where the third party solely provides services to the operator of the commercial health monitoring program and does not further use or disclose health monitoring information. 4)Requires an operator of a commercial health monitoring program that creates, maintains, preserves, stores, abandons, destroys, or disposes of health monitoring information shall do so in a manner that preserves the security and confidentiality of the health monitoring information contained therein. AB 2688 Page 3 5)Prohibits an employer from 1) discriminating against an employee in any terms or conditions of employment due to that employee's refusal to provide an authorization to share, sell, disclose or use an individual's health monitoring information; 2) discriminating against an employee in any terms or conditions of employment due to the findings of that employee's health monitoring information; and 3) using, disclosing, or knowingly permitting its employees or agents to use or disclose health monitoring information which the employer possesses pertaining to its employees without first obtaining authorization to do so. 6)Exempts an employer that has attempted in good faith to comply with the requirements and prohibitions of this bill from liability for any unauthorized use or disclosure of the health monitoring information by the person or entity to which the employer disclosed the health monitoring information. 7)Prohibits a recipient of health monitoring information pursuant to an authorization from further disclosing that health monitoring information unless in accordance with a new authorization. FISCAL EFFECT: None. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS: 1)Purpose of this bill. This bill is intended to apply a limited set of protections against unauthorized disclosure and employment discrimination for personal health monitoring information collected through a commercial health monitoring AB 2688 Page 4 device that falls outside of existing federal and state protections for medical and health information. This bill is author-sponsored. 2)The "Internet of Things" and health devices. The term "Internet of Things" (or IoT) was created to describe a network of physical objects embedded with sensors and network connectivity that enables the objects to collect and transmit data remotely, as well as be controlled. As a result, massive amounts of data can be collected and analyzed, much of it in real time or near to it, allowing these systems to be monitored and operated with greater efficiency, accuracy and economic benefit - leading to the use of the term "smart" in relation to these technologies. IoT is expected to have a major impact in the health care industry. Well-known examples of IoT health devices are the Fitbit fitness band, the Apple Watch, and the Google Smart Contact Lens. This bill has two primary aims: a) It prohibits operators from intentionally sharing, selling or disclosing health monitoring information to a third party without explicit authorization; and b) It requires employers with health monitoring programs not to discriminate against employees based on their results or their refusal to participate. This bill also clarifies that activities by a company or employer that are covered under the Health Insurance Portability and Accountability Act of 1996 and California Medical Instrumentation Association are not subject to the provisions of this bill. Analysis Prepared by: AB 2688 Page 5 Hank Dempsey / P. & C.P. / (916) 319-2200 FN: 0002877