Tennessee becomes 8th state to enact comprehensive privacy legislation

Privacy, Cyber Risk & Data Security State Issues State Legislation Tennessee Consumer Protection

On May 11, the Tennessee governor signed HB 1181 to enact the Tennessee Information Protection Act (TIPA) and establish a framework for controlling and processing consumers’ personal data in the state. Tennessee is now the eighth state in the nation to enact comprehensive consumer privacy measures, following California, Colorado, Connecticut, Virginia, Utah, Iowa, and Indiana. TIPA applies to any person that conducts business in the state or produces products or services targeted to residents and, during a calendar year, (i) controls or processes personal data of at least 100,000 Tennessee residents or (ii) controls or processes personal data of at least 25,000 Tennessee residents and derives 50 percent of gross revenue from the sale of personal data. TIPA provides for several exemptions, including financial institutions and data governed by the Gramm-Leach-Bliley Act and certain other federal laws, as well as covered entities governed by the Health Insurance Portability and Accountability Act. Highlights of TIPA include:

• Consumers’ rights. Under TIPA, consumers will be able to access their personal data; make corrections; request deletion of their data; obtain a copy of their data in a portable format; request what categories of information were sold or disclosed; and opt out of the sale of their data.
• Controllers’ responsibilities. Data controllers under TIPA will be responsible for, among other things, (i) responding to consumers’ requests within 45 days unless extenuating circumstances arise and providing requested information free of charge, up to twice annually for each consumer; (ii) establishing an appeals process to allow consumer appeals within a reasonable time period after a controller’s refusal to take action on a consumer’s request; (iii) limiting the collection of data to what is required and reasonably necessary for a specified purpose; (iv) not processing data for reasons incompatible with the specified purpose; (v) securing personal data from unauthorized access; (vi) not processing data in violation of state or federal anti-discrimination laws; (vii) obtaining consumer consent in order to process sensitive data; (viii) ensuring contracts and agreements do not waive or limit consumers’ data rights; and (ix) providing clear and meaningful privacy notices. TIPA also sets forth obligations relating to contracts between a controller and a processor.
• No private right of action but enforcement by state attorney general. TIPA explicitly prohibits a private right of action. Instead, it grants the state attorney general excusive authority to enforce the law and seek penalties of up to $15,000 per violation and treble damages for willful or knowing violations. The attorney general may also recover reasonable expenses, including attorney fees, for any initiated action.
• Right to cure. Upon discovering a potential violation of TIPA, the attorney general must give the data controller written notice. The data controller then has 60 days to cure the alleged violation before the attorney general can file suit.
• Affirmative defense. TIPA establishes an affirmative defense for violations for controllers and processors that adopt a privacy program “that reasonably conforms” to the National Institute of Standards and Technology Privacy Framework and complies with required provisions. Failing “to maintain a privacy program that reflects the controller or processor's data privacy practices to a reasonable degree of accuracy” will be considered an unfair and deceptive act or practice under Tennessee law.

TIPA takes effect July 1, 2024.