Tennessee - Data Protection Overview
1. Governing Texts
The Tennessee Information Protection Act ('TIPA') was published, on May 24, 2023, and enters into force on July 1, 2025.
1.3. Case law
2. Scope of Application
The TIPA applies to products or services that target residents of Tennessee and that (§47-18-3203 of the TIPA):
- exceed $25 million in revenue; and
- control or process personal information of at least 25,000 consumers and derive more than 50% of gross revenue from the sale of personal information; or
- during a calendar year, control or process personal information of at least 175,000 consumers.
However, the TIPA does not apply to, among others (§47-18-3210(a) of the TIPA):
- a body, authority, board, bureau, commission, district, or agency of the State or a political subdivision of the State;
- a financial institution, an affiliate of a financial institution, or data subject to title V of the Gramm Leach Bliley Act of 1999 (GLBA);
- a covered entity or business associate governed by the privacy, security, and breach notification rules under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules;
- non-profit organization;
- an institution of higher education;
- protected health information under HIPAA; and
- patient identifying information.
The TIPA applies to persons that conduct business in Tennessee producing products or services that target residents of Tennessee (§47-18-3202 of the TIPA).
The TIPA provides that it does not apply to, among other things (§47-18-3210 of the TIPA):
- personal information or educational information regulated by the Federal Family Educational Rights and Privacy Act 1974;
- Personal information collected, processed, sold, or disclosed in compliance with the Federal Farm Credit Act 1971;
- Personal information collected, processed, sold, or disclosed in compliance with the Federal Driver's Privacy Protection Act of 1994;
- the collection, maintenance, disclosure, sale, communication, or use of personal information bearing on a consumer's creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a consumer reporting agency or furnisher that provides information for use in a consumer report, and by a user of a consumer report, but only to the extent that such activity is regulated by and authorized under the Federal Fair Credit Reporting Act 1970;
- information used only for public health activities and purposes as authorized by HIPAA; and
- data processed or maintained:
- in the course of an individual applying to, being employed by, or acting as an agent or independent contractor of a controller, processor, or third party, to the extent that the data is collected and used within the context of that role;
- as the emergency contact information of an individual under this part used for emergency contact purposes; or
- that is necessary to retain to administer benefits for another individual relating to the individual based on point one and used for the purposes of administering those benefits.
Furthermore, the TIPA clarifies that obligations on controllers and processors must not apply to the processing of personal information by a person in the course of a purely personal activity (§47-18-3208(e) of the TIPA).
3.1. Main regulator for data protection
The Tennessee Attorney General ('AG') and reporter have exclusive authority to enforce the provisions of TIPA (§47-18-3203(a) of the TIPA).
3.2. Main powers, duties and responsibilities
The AG and reporter may develop reasonable cause to believe that a controller or processor is in violation of TIPA, based on the AG and reporter's own inquiry or on consumer or public complaints (§47-18-3212(b) of the TIPA).
4. Key Definitions
Personal data: means information that is linked or reasonably linkable to an identified or identifiable person; and does not include information that is publicly available information; or de-identified or aggregate consumer information (§47-18-3201(17) of TIPA).
Consumer: means a natural person who is a resident of this state acting only in a personal context; and does not include a natural person acting in a commercial or employment context (§47-18-3201(7) of TIPA).
- personal information revealing racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status;
- the processing of genetic or biometric data for the purpose of uniquely identifying a natural person;
- the personal information collected from a known child; or
- precise geolocation data.
Health data: 'protected health information' has the same meaning as defined by HIPAA (§47-18-3201(22) of TIPA). 'Health record' means a written, printed, or electronically recorded material that (§47-18-3201(12) of TIPA):
- was created or is maintained by a healthcare entity described in or licensed in the course of providing healthcare services to an individual; and
- concerns the individual and the services provided; and
- includes the substance of a communication made by an individual to a healthcare entity described in or licensed under in confidence during or in connection with the provision of healthcare sciences or information otherwise acquired by the healthcare entity about an individual in confidence and in connection with the provision of healthcare services to the individual.
Biometric data: means data generated by automatic measurement of an individual's biological characteristics, such as a fingerprint, voiceprint, eye retina or iris, or other unique biological patterns or characteristics that are used to identify a specific individual; and (does not include a physical or digital photograph, video recording, or audio recording or data generated from a photograph or video or audio recording; or information collected, used, or stored for healthcare treatment, payment, or operations under HIPAA (§47-18-3201(3) of TIPA).
Pseudonymization: 'pseudonymous data' means personal information that cannot be attributed to a specific natural person without the use of additional information, so long as the additional information is kept separately and is subject to appropriate technical and organizational measures to ensure that the personal information is not attributed to an identified or identifiable natural person (§47-18-3201(23) of TIPA).
5. Legal Bases
Personal information processed by a controller pursuant to §47-18-3208 of the TIPA (i.e. the Limitations Section) may be processed to the extent the processing is (§47-18-3208(f) of the TIPA):
- reasonably necessary and proportionate to the purposes listed in this section; and
- adequate, relevant, and limited to what is necessary in relation to the specific purposes listed in this section. Personal information collected, used, or retained pursuant to §47-18-3208(f) of the TIPA shall, where applicable, take into account the nature and purpose or purposes of the collection, use, or retention. The data is subject to reasonable administrative, technical, and physical measures to protect the confidentiality, integrity, and accessibility of the personal information and to reduce reasonably foreseeable risks of harm to consumers relating to the collection, use, or retention of personal information.
In addition, if a controller processes personal information pursuant to an exemption in §47-18-3208 of the TIPA (i.e. the Limitations Section), then the controller bears the burden of demonstrating that the processing qualifies for the exemption and complies with §47-18-3208(f) of the TIPA.
'Consent' is defined as a clear and affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to process personal information relating to the consumer; and may include a written statement, including a statement written by electronic means, or an unambiguous affirmative action (§47-18-3201(6) of TIPA).
Controllers must not process personal information beyond what is reasonably necessary to and compatible with the disclosed purposes for which the personal information is processed, as disclosed to the consumer unless the controller obtains the consumer's consent (§47-18-3204(a)(2) of TIPA).
The TIPA provides that nothing shall restrict a controller or processor's ability to provide a product or service specifically requested by a consumer or the parent or legal guardian of a known child, perform a contract to which the consumer is a party, including fulfilling the terms of a written warranty, or take steps at the request of the consumer prior to entering into a contract (§47-18-3208(a)(5) of TIPA).
The TIPA also provides that nothing shall restrict a controller's or processor's ability to ((§47-18-3208 of TIPA):
- comply with federal, state, or local laws, rules, or regulations;
- comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, local, or other governmental authorities;
- cooperate with law enforcement agencies concerning conduct or activity that the controller or processor reasonably and in good faith believes may violate federal, state, or local laws, rules, or regulations; or
- investigate, establish, exercise, prepare for, or defend legal claims.
The TIPA provides that nothing shall restrict the ability of controllers or processors to take immediate steps to protect an interest that is essential for the life or physical safety of the consumer or of another natural person, and where the processing cannot be manifestly based on another legal basis (§47-18-3208(6) of TIPA).
The TIPA provides that nothing shall restrict the ability of controllers or processors to engage in public or peer-reviewed scientific or statistical research in the public interest that adheres to all other applicable ethics and privacy laws and is approved, monitored, and governed by an institutional review board, or similar independent oversight entity that determines whether (§47-18-3208(8) of TIPA):
- deletion of the information is likely to provide substantial benefits that do not exclusively accrue to the controller;
- the expected benefits of the research outweigh the privacy risks; and
- the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including risks associated with reidentification.
The TIPA provides that nothing shall restrict the ability of controllers or processors to (§47-18-3208(7) of TIPA):
- prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activity, or illegal activity;
- preserve the integrity or security of systems; or
- investigate, report, or prosecute those responsible for such action.
Likewise, the TIPA provides that the obligations imposed on controllers and processors shall not restrict the ability of controllers or processors to collect, use, or retain data to (§47-18-3208(9)(b) of TIPA):
- conduct internal research to develop, improve, or repair products, services, or technology;
- effectuate a product recall;
- identify and repair technical errors that impair existing or intended functionality; or
- perform internal operations that are reasonably aligned with the expectations of the consumer or reasonably anticipated based on the consumer's existing relationship with the controller or are otherwise compatible with processing data in furtherance of the provision of a product or service specifically requested by a consumer or the performance of a contract to which the consumer is a party.
The TIPA establishes that controllers must limit the collection of personal information to what is adequate, relevant, and reasonably necessary in relation to the purposes for which the data is processed, as disclosed to the consumer (§47-18-3204(a)(1) of TIPA). Controllers must also not process personal information for purposes that are beyond what is reasonably necessary to and compatible with the disclosed purposes for which the personal information is processed, as disclosed to the consumer unless the controller obtains consumer consent (§47-18-3204(a)(2) of TIPA).
Moreover, controllers must establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal information. These practices must be appropriate to the volume and nature of the personal information at issue (§47-18-3204(a)(3) of TIPA). Furthermore, controllers must not process personal information in violation of state and federal laws that prohibit unlawful discrimination against consumers, and not discriminate against a consumer for exercising the consumer rights contained in TIPA, including by denying goods or services, or by providing a different level of quality of goods and services to consumers (§47-18-3204(a)(5) of TIPA).
7. Controller and Processor Obligations
Controllers in possession of de-identified data must (§47-18-3207(a) of TIPA).:
- take reasonable measures to ensure that the data cannot be associated with a natural person;
- publicly commit to maintaining and using de-identified data without attempting to reidentify the data; and
- contractually obligate recipients of the de-identified data to comply with this.
The TIPA does not specifically address data transfers but defines the 'sale of personal information' as the exchange of personal information for valuable monetary consideration by the controller to a third party. Importantly, the TIPA highlights that the sale of information does not include (§47-18-3201(25)(B)(v) of TIPA):
- the disclosure of personal information to a processor that processes the personal information on behalf of the controller;
- the disclosure of personal information to a third party for purposes of providing a product or service requested by the consumer;
- the disclosure or transfer of personal information to an affiliate of the controller;
- the disclosure of information that the consumer:
- intentionally made available to the general public via a channel of mass media; and
- did not restrict to a specific audience; or
- the disclosure or transfer of personal information to a third party as an asset that is part of a merger, acquisition, bankruptcy, or other transaction in which the third party assumes control of all or part of the controller's assets.
Furthermore, the TIPA stipulates that a controller or processor that discloses personal data to a processor or third-party controller in accordance with the TIPA shall not be deemed to have violated the same if the processor or third-party controller that receives and processes such personal data violates said sections, provided, at the time the disclosing controller or processor disclosed such personal data, the disclosing controller or processor did not have actual knowledge that the receiving processor or third-party controller would violate the TIPA. In addition, a third-party controller or processor receiving personal data from a controller or processor in compliance with TIPA is likewise not in violation of said sections for the transgressions of the controller or processor from which such third-party controller or processor receives such personal data.
The TIPA does not specifically address data processing records.
Data controllers must conduct and document a data protection assessment (DPA) of each of the following processing activities involving personal information (§47-18-3206(a) of TIPA):
- the processing of personal information for purposes of targeted advertising;
- the sale of personal information;
- the processing of personal information for purposes of profiling, where the profiling presents a reasonably foreseeable risk of:
- unfair or deceptive treatment of, or unlawful disparate impact on, consumers;
- financial, physical, or reputational injury to consumers;
- physical or other intrusions upon the solitude or seclusion, or the private affairs or concerns, of consumers, where the intrusion would be offensive to a reasonable person; or
- other substantial injuries to consumers;
- the processing of sensitive data; and
- processing activities involving personal information that present a heightened risk of harm to consumers.
DPA must identify and weight the benefits that may flow, directly and indirectly, from the processing to the controller, the consumer, other stakeholders, and the public against the potential risks to the rights of the consumer associated with the processing, as mitigated by safeguards that can be employed by the controller to reduce the risks. Notably, the use of de-identified data and the reasonable expectations of consumers, as well as the context of the processing and the relationship between the controller and the consumer whose personal information will be processed, must be factored into the assessment by the controller (§47-18-3206(b) of TIPA).
A single DPA may address a comparable set of processing operations that include similar activities (§47-18-3206(d) of TIPA). Further, DPAs conducted by a controller for compliance with other laws, rules, or regulations may comply with the requirements to conduct a DPA under the TIPA if the DPA has reasonably comparable scope and effect (§47-18-3206(e) of TIPA).
DPA requirements also apply to processing activities created or generated on or after July 1, 2023, and are not retroactive (§47-18-3206(f) of TIPA).
Further, the AG and reporter may request pursuant to a civil investigative demand, that controllers disclose a DPA that is relevant to an investigation conducted by the AG and reporter, and the controller must make the DPA available to the AG and reporter. Such disclosure pursuant to a request from the AG and reporter does not constitute a waiver of attorney-client privilege or work product protection with respect to the assessment and information contained in the assessment (§47-18-3206(c) of TIPA).
The TIPA does not specifically address the appointment of a data protection officer (DPO).
The TIPA does not specifically address data breach notifications. For further information see Tennessee – Data Breach Notification.
The TIPA does not specifically address data retention obligations, but provides that personal information processed by a controller must be processed to the extent that the processing shall, where applicable, take into account the nature and purpose or purposes of the collection, use, or retention (§47-18-3208(f)(2) of TIPA).
The TIPA defines 'child' as a natural person younger than 13 years of age (§47-18-3201(5) of TIPA). Equally, TIPA provides that the personal information collected from a known child is considered 'sensitive data' (§47-18-3201(26)(c) of TIPA). To this end, the TIPA provides that controllers must not process the sensitive data of a known child without processing the data in accordance with the Children's Online Privacy Protection Act of 1998 (COPPA) (§47-18-3204(6) of TIPA). Further, controllers and processors that comply with the verifiable parental consent of COPPA are deemed compliant with the obligation to obtain parental consent under the TIPA (§47-18-3210(23)(b) of TIPA).
Notably, under the TIPA, a known child's parent or legal guardian may invoke consumer rights regarding the processing of personal information belonging to the known child ((§47-18-3203(a) of TIPA).
Controllers must not process sensitive data concerning a consumer without obtaining the consumer's consent, or in the case of processing the sensitive data of a known child, without processing the data in accordance with COPPA (§47-18-3204(6) of TIPA).
Under the TIPA, processors must adhere to the instructions of a controller and assist the controller in meeting its obligations. Assistance is provided to include (§47-18-3205(a) of TIPA):
- taking into account the nature of processing and the information available to the processor, by appropriate technical and organizational measures, insofar as they are reasonably practicable, fulfill the controller's obligation to respond to data subject rights requests; and
- providing necessary information to the controller to conduct and document data protection assessments.
More specifically, the TIPA provides that a contract between a controller and processors governs the processor's data processing procedures with respect to processing performed on behalf of the controller. The contract is binding and must clearly set forth instructions for processing, the nature and purpose of processing, the type of data subject to processing, the duration of the processing, and the rights and obligations of both parties (§47-18-3205(b) of TIPA). Contracts must include requirements that the processor will (§47-18-3205(b) of TIPA):
- ensure that each person processing personal information is subject to a duty of confidentiality with respect to the data;
- at the controller's direction, delete or return all personal information to the controller as requested at the end of the provision of services, unless retention of the personal information is required by law;
- upon reasonable request of the controller, make available all information in its possession necessary to demonstrate its compliance with the contractual requirements;
- allow, and cooperate with, reasonable assessments by the controller or the controller's designated assessor; or alternatively, the processor may arrange for a qualified and independent assessor to conduct an assessment of the processor's policies and technical and organizational measures, using appropriate and accepted control standard or framework and assessment procedure for the assessments; and
- engage a subcontractor pursuant to a written contract that requires the subcontractor to meet the obligations of the processor with respect to personal information.
Notably, determining whether a person is acting as a controller or processor with respect to the specific processing of data is a fact-based determination dependent on the contract in which the personal information is to be processed. Processors which continue to adhere to a controller's instructions with respect to specific processing of personal information remain a processor (§47-18-3205(d) of TIPA).
Furthermore, §47-18-3205 does not relieve controllers or processors from the liabilities imposed on them by virtue of their role in the processing relationship.
8. Data Subject Rights
Responding to a consumer rights request
Controllers must comply with an authenticated request by a consumer to exercise their consumer's rights as follows (§47-18-3203(b) of TIPA):
- responding to the consumer without undue delay, but in all cases within 45 days of receipt of a request. The response period may be extended once by 45 additional days when reasonably necessary, taking into account the complexity and number of the consumer's requests, so long as the controller informs the consumer of the extension within the initial 45 response period, together with the reason for the extension;
- if a controller declines to take action regarding the consumer's request, then the controller shall inform the consumer without undue delay, but in all cases and at the latest within 45 days of receipt of the request, of the justification for declining to take action and instructions for how to appeal the decision;
- the information must be provided by a controller free of charge, up to twice annually per consumer. If requests from a consumer are manifestly unfounded, technically infeasible, excessive, or repetitive, then the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request. The controller bears the burden of demonstrating the manifestly unfounded, technically infeasible, excessive, or repetitive nature of the request; and
- if a controller is unable to authenticate the request using commercially reasonable efforts, then the controller is not required to comply with a request to initiate an action and may request that the consumer provide additional information reasonably necessary to authenticate the consumer and the consumer's request.
Notably, controllers must not require a consumer to create a new account in order to exercise their consumer right but may require them to use an existing account (§47-18-3204(e)(2) of TIPA).
In addition, the controller must establish a process for a consumer to appeal the controller's refusal to take action on a request within a reasonable period of time after the consumer's receipt of the decision The appeal process must be made available to the consumer in a conspicuous manner, must be available at no cost to the consumer, and must be similar to the process for submitting requests to initiate action (§47-18-3203(c) of TIPA).
Within 60 days of receipt of an appeal, a controller must inform the consumer in writing of the action taken or not taken in response to the appeal, including a written explanation of the reasons for the decisions. If the appeal is denied, then the controller shall also provide the consumer with an online mechanism, if available, or other methods through which the consumer may contact the attorney general and reporter to submit a complaint (§47-18-3203(c) of TIPA).
Controllers must provide a reasonably accessible, clear, and meaningful privacy notice that includes (§47-18-3204(c) of TIPA):
- the categories of personal data processed by the controller;
- the purpose for processing personal data;
- how consumers may exercise their consumer rights including how a consumer may appeal a controller's decision with regard to the consumer's request;
- the categories of personal data that the controller shares with third parties, if any; and
- the categories of third parties, if any, with whom the controller shares personal data.
If controllers sell personal information to third parties or process personal information for targeted advertising, then the controller must clearly and conspicuously disclose the processing, as well as the manner in which a consumer may exercise the right to opt out of the processing (§47-18-3204(d) of TIPA).
In addition, controllers must provide and describe in a privacy notice, one or more secure and reliable means for a consumer to submit a request to exercise consumer rights, and take into account (§47-18-3204(e)(1) of TIPA):
- the ways in which a consumer normally interacts with the controller;
- need for secure and reliable communication of such requests;
- the ability of a controller to authenticate the identity of the consumer making the request.
Controllers must comply with an authenticated consumer request to access personal information and/or request to confirm whether a controller is processing the consumer's personal information (§47-18-3203(2)(A) of TIPA).
Controllers must comply with an authenticated consumer request to correct inaccuracies in the consumer's personal information, taking into account the nature of the personal information and the purposes of processing the consumer's personal information (§47-18-3203(2)(B) of TIPA).
Controllers must comply with an authenticated consumer request to delete personal information provided by or obtained about the consumers. However, controllers are not required to delete information that it maintains or uses as aggregate or de-identified data, provided that such data in the possession of the controller, is not linked to a specific consumer. Controllers that obtain personal information about a consumer from a source other than the consumer are in compliance with the consumer's deletion request by (§47-18-3203(2)(C) of TIPA):
- retaining a record of the deletion request and the minimum information necessary for the purpose of ensuring that the consumer's personal information remains deleted from the controller's records; and
- not using such retained personal information for any purpose prohibited under TIPA; or
- opting the consumer out of the processing of such personal data for any purpose except for those exempted under TIPA.
Controllers must comply with an authenticated consumer request to opt out of a controller's processing of personal information for the purposes of (§47-18-3203(2)(E) of TIPA):
- selling personal information about the consumer;
- targeted advertising; or
- profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.
Controllers must comply with an authenticated consumer request to obtain a copy of the consumer's personal information that the consumer provided to the controller in a portable, and to the extent technically feasible, readily usable format that allows the consumer to transmit the data to another controller without hindrance, where the processing is carried out by automated means (§47-18-3203(2)(D) of TIPA).
Under the TIPA 'process or 'processing' is defined as a set of operations performed, whether by manual or automated means, on personal information or on sets of personal information such as the collection, use, storage, disclosure, analysis, deletion, or modification of personal information ( (§47-18-3201(19) of TIPA). Specifically, consumers may request to opt out of a controller's processing of personal information for the purposes of profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer (§47-18-3203(2)(E)(iii) of TIPA).
On the other hand, 'profiling' is defined as a form of solely automated processing performed on personal information to evaluate, analyze, or predict personal aspects related to an identified or identifiable natural person's economic situation, health, personal preferences, interests, reliability, behavior, location, or movements (§47-18-3201(21) of TIPA).
The TIPA provides that if the AG and reporter have reasonable cause to believe that an individual, controller, or processor has engaged in, is engaging in, or is about to engage in violation of the TIPA, then they may issue a civil investigative demand (§47-18-3209 of TIPA).
The AG and reporter may develop reasonable cause to believe that a controller or processor is in violation of the TIPA based on their own inquiry or on consumer or public complaints. Prior to initiating an action, the AG and reporter must provide a controller or processor 60 days written notice identifying the specific provisions of the TIPA the AG and reporter alleges have been or are being violated (§47-18-3212(b) of TIPA). If, within the 60-day period, the controller or processor cures the noticed violation and provides the AG and reporter an express written statement that the alleged violations have been cured, and no further violations shall occur, then the AG and report shall not initiate actions against the controller or processor ((§47-18-3212(b) of TIPA).
Where a controller or processor continues to violate the TIPA following the cure period, or breaches an express written statement provided to the AG and reporter, then the AG and reporter may bring an action in court seeking any of the following (§47-18-3212(c) of TIPA):
- a declaratory judgment that the act or practice violates the TIPA;
- injunctive relief, including preliminary and permanent injunctions, to prevent an additional violation of and compel compliance with the TIPA;
- civil penalties, as described below;
- reasonable attorney's fees and investigative costs; or
- other relief the court determines appropriate.
A court under the TIPA may impose a civil penalty of up to $7,500 for each violation of the TIPA. Where the court finds the controller or processor willfully or knowingly violates the TIPA, then the court may, in its discretion, award treble damages (§47-18-3212(d) of TIPA).
Importantly, a violation of the TIPA does not serve as the basis for, or be subject to, a private right of action, including a class action lawsuit (§47-18-3212(e) of TIPA).