*SB0358.1*
January 28, 2022
SENATE BILL No. 358
_____
DIGEST OF SB 358 (Updated January 27, 2022 10:03 am - DI 101)
Citations Affected: IC 24-15.
Synopsis: Consumer data protection. Establishes a new article in the
Indiana Code concerning consumer data protection, to take effect
January 1, 2024. Sets forth the following within the new article: (1)
Definitions of various terms that apply throughout the article. (2)
Exemptions from the bill's requirements concerning the responsibilities
of controllers of consumers' personal data. (3) The rights of an Indiana
consumer to do the following: (A) Confirm whether or not a controller
is processing the consumer's personal data. (B) Correct inaccuracies in
the consumer's personal data that the consumer previously provided to
a controller. (C) Delete the consumer's personal data held by a
controller. (D) Obtain a copy or representative summary of the
consumer's personal data that the consumer previously provided to the
controller. (E) Opt out of the processing of the consumer's personal
data for certain purposes. (4) The responsibilities of controllers of
consumers' personal data. (5) The roles of controllers and processors
with respect to a consumer's personal data. (6) Requirements for data
protection assessments by controllers of consumers' personal data. (7)
Requirements for processing de-identified data or pseudonymous data.
(8) Limitations as to the scope of the new article. (9) The authority of
the attorney general to investigate and enforce suspected or actual
violations of the new article. (10) The establishment of a new consumer
privacy fund: (A) consisting of civil penalties collected by the attorney
general in enforcement actions under the new article; and (B) to be
used in supporting the work of the attorney general in enforcing the
new article. (11) The preemption of local rules, regulation, and laws
regarding the processing of personal data.
Effective: January 1, 2024.
Brown L, Buchanan, Perfect, Koch
January 12, 2022, read first time and referred to Committee on Commerce and Technology.
January 27, 2022, amended, reported favorably — Do Pass.
SB 358—LS 7186/DI 101 January 28, 2022
Second Regular Session of the 122nd General Assembly (2022)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional
provision adopted), the text of the new provision will appear in this style type. Also, the
word NEW will appear in that style type in the introductory clause of each SECTION that adds
a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
between statutes enacted by the 2021 Regular Session of the General Assembly.
SENATE BILL No. 358
A BILL FOR AN ACT to amend the Indiana Code concerning trade
regulation.
Be it enacted by the General Assembly of the State of Indiana:
1 SECTION 1. IC 24-15 IS ADDED TO THE INDIANA CODE AS
2 A NEW ARTICLE TO READ AS FOLLOWS [EFFECTIVE
3 JANUARY 1, 2024]:
4 ARTICLE 15. CONSUMER DATA PROTECTION
5 Chapter 1. Applicability
6 Sec. 1. (a) This article applies to a person that conducts business
7 in Indiana or produces products or services that are targeted to
8 residents of Indiana and that:
9 (1) during a calendar year controls or processes personal data
10 of at least one hundred thousand (100,000) consumers; or
11 (2) controls or processes personal data of at least twenty-five
12 thousand (25,000) consumers and derives more than fifty
13 percent (50%) of gross revenue from the sale of personal data.
14 (b) This article does not apply to any:
15 (1) body, authority, board, bureau, commission, district, or
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1 agency of the state or of any political subdivision of the state;
2 (2) financial institutions and affiliates, or data subject to Title
3 V of the federal Gramm-Leach-Bliley Act (15 U.S.C. 6801 et
4 seq.);
5 (3) covered entity or business associate governed by the
6 privacy, security, and breach notification rules issued by the
7 United States Department of Health and Human Services (45
8 CFR Parts 160 and 164) pursuant to HIPPA;
9 (4) nonprofit organization; or
10 (5) institution of higher education.
11 Sec. 2. The following information and data are exempt from this
12 article:
13 (1) Protected health information under HIPPA.
14 (2) Patient identifying information for purposes of 42 U.S.C.
15 290dd-2.
16 (3) Any of the following:
17 (A) Identifiable private information for purposes of the
18 federal policy for the protection of human subjects under
19 45 CFR Part 46.
20 (B) Identifiable private information that is otherwise
21 information collected as part of human subjects research
22 under the good clinical practice guidelines issued by the
23 International Council for Harmonisation of Technical
24 Requirements for Pharmaceuticals for Human Use.
25 (C) The protection of human subjects under 21 CFR Parts
26 6, 50, and 56.
27 (D) Personal data used or shared in research conducted in
28 accordance with the requirements set forth in this article.
29 (E) Other research conducted in accordance with
30 applicable law.
31 (4) Information and documents created for purposes of the
32 federal Health Care Quality Improvement Act of 1986 (42
33 U.S.C. 11101 et seq.).
34 (5) Patient safety work product for purposes of the federal
35 Patient Safety and Quality Improvement Act (42 U.S.C.
36 299b-21 et seq.).
37 (6) Information derived from any of the health care related
38 information set forth in this section that is de-identified in
39 accordance with the requirements for de-identification under
40 HIPPA.
41 (7) Information:
42 (A) originating from;
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1 (B) intermingled with so as to be indistinguishable from; or
2 (C) treated in the same manner as;
3 information that is exempt under this section and that is
4 maintained by a covered entity or business associate, as
5 defined in HIPPA, or a program or qualified service
6 organization, as defined in 42 U.S.C. 290dd-2.
7 (8) Information used only for public health activities and
8 purposes, as authorized by HIPPA.
9 (9) The collection, maintenance, disclosure, sale,
10 communication, or use of any personal information bearing
11 on a consumer's credit worthiness, credit standing, credit
12 capacity, character, general reputation, personal
13 characteristics, or mode of living by:
14 (A) a consumer reporting agency, furnisher, or user that
15 provides information for use in a consumer report; or
16 (B) a user of a consumer report;
17 but only to the extent that such activity is regulated by and
18 authorized under the federal Fair Credit Reporting Act (15
19 U.S.C. 1681 et seq.).
20 (10) Personal data collected, processed, sold, or disclosed in
21 compliance with the federal Driver's Privacy Protection Act
22 of 1994 (18 U.S.C. 2721 et seq.).
23 (11) Personal data regulated by the federal Family
24 Educational Rights and Privacy Act (20 U.S.C. 1232g et seq.).
25 (12) Personal data collected, processed, sold, or disclosed in
26 compliance with the federal Farm Credit Act (12 U.S.C. 2001
27 et seq.).
28 (13) Data processed or maintained:
29 (A) in the course of an individual applying to, employed by,
30 or acting as an agent or independent contractor of a
31 controller, processor, or third party, to the extent that the
32 data is collected and used within the context of that role;
33 (B) as emergency contact information for an individual
34 under this article and used for emergency contact
35 purposes; or
36 (C) that is necessary to retain to administer benefits for
37 another individual relating to the individual under clause
38 (A) and used for the purposes of administering those
39 benefits.
40 Sec. 3. A:
41 (1) controller; or
42 (2) processor;
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1 that complies with the Children's Online Privacy Protection Act
2 (15 U.S.C. 6501 et seq.), and with any rules or regulations under
3 that act, satisfies any obligation to obtain parental consent under
4 this article.
5 Chapter 2. Definitions
6 Sec. 0.5. The definitions in this chapter apply throughout this
7 article.
8 Sec. 1. (a) "Affiliate" means a legal entity that:
9 (1) controls, is controlled by, or is under common control with
10 another legal entity; or
11 (2) shares common branding with another legal entity.
12 (b) For purposes of this section, "control", with respect to a
13 company, means:
14 (1) ownership of, or the power to vote, more than fifty percent
15 (50%) of the outstanding shares of any class of voting security
16 of the company;
17 (2) control in any manner over the election of a majority of
18 the directors or of individuals exercising similar functions; or
19 (3) the power to exercise controlling influence over the
20 management of the company.
21 Sec. 2. "Aggregate data" means information:
22 (1) that relates to a group or category of consumers;
23 (2) from which individual consumer identities have been
24 removed; and
25 (3) that is not linked or reasonably linkable to any consumer.
26 Sec. 3. "Authenticate" means to verify through reasonable
27 means that a consumer who is entitled to exercise the personal data
28 rights provided by IC 24-15-3 is the same consumer exercising such
29 rights with respect to particular personal data.
30 Sec. 4. (a) "Biometric data" means data that:
31 (1) is generated by automatic measurements of an individual's
32 biological characteristics, such as a fingerprint, a voiceprint,
33 images of the retina or iris, or other unique biological
34 patterns or characteristics; and
35 (2) is used to identify a specific individual.
36 (b) The term does not include:
37 (1) a physical or digital photograph;
38 (2) a video or audio recording, or data generated from a video
39 or audio recording; or
40 (3) information collected, used, or stored for health care
41 treatment, payment, or operations under HIPAA.
42 Sec. 5. "Business associate" has the meaning set forth in 45 CFR
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1 160.103.
2 Sec. 6. "Child" means any individual who is less than thirteen
3 (13) years of age.
4 Sec. 7. (a) "Consent" means a clear affirmative act that signifies
5 a consumer's freely given, specific, informed, and unambiguous
6 agreement to process personal data relating to the consumer.
7 (b) For purposes of this section, a "clear affirmative act"
8 includes a written statement, including a statement written by
9 electronic means, or any other unambiguous affirmative action.
10 Sec. 8. (a) "Consumer" means an individual who:
11 (1) is a resident of Indiana; and
12 (2) is acting only for a personal, family, or household purpose.
13 (b) The term does not include an individual acting in a
14 commercial or employment context.
15 Sec. 9. "Controller" means a person that, alone or jointly with
16 others, determines the purpose and means of processing personal
17 data.
18 Sec. 10. "Covered entity" has the meaning set forth in 45 CFR
19 160.103.
20 Sec. 11. "Decision that produces legal or similarly significant
21 effects concerning a consumer" means a decision made by a
22 controller that results in the provision or denial by the controller
23 of:
24 (1) financial and lending services;
25 (2) housing;
26 (3) insurance;
27 (4) education enrollment;
28 (5) criminal justice;
29 (6) employment opportunities;
30 (7) health care services; or
31 (8) access to basic necessities, such as food and water.
32 Sec. 12. "De-identified data" means data that cannot reasonably
33 be linked to an identified or identifiable individual because a
34 controller that possesses the data:
35 (1) takes reasonable measures to ensure that the data cannot
36 be associated with an individual;
37 (2) publicly commits to maintaining and using the data
38 without attempting to re-identify the data; and
39 (3) obligates any recipients of the data through contractual
40 requirements to comply with all applicable provisions of this
41 article.
42 Sec. 13. "Fund" refers to the consumer privacy fund established
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1 by IC 24-15-11-1.
2 Sec. 14. "Health care provider" has the meaning set forth in
3 IC 4-6-14-2.
4 Sec. 15. "Health record" has the meaning set forth in
5 IC 1-1-4-5(a)(6).
6 Sec. 16. "HIPAA" refers to the federal Health Insurance
7 Portability and Accountability Act of 1996 (42 U.S.C. 1320d et
8 seq.).
9 Sec. 17. "Identified or identifiable individual" means an
10 individual who can be readily identified, directly or indirectly.
11 Sec. 18. "Institution of higher education" means a public or
12 private college or university.
13 Sec. 19. "Nonprofit organization" means any organization
14 exempt from taxation under Section 501(c)(3), 501(c)(6), or
15 501(c)(12) of the Internal Revenue Code.
16 Sec. 20. (a) "Personal data" means information that is linked or
17 reasonably linkable to an identified or identifiable consumer.
18 (b) The term does not include:
19 (1) de-identified data;
20 (2) aggregate data; or
21 (3) publicly available information.
22 Sec. 21. (a) "Precise geolocation data" means information
23 derived from technology, including global positioning system level
24 latitude and longitude coordinates, that directly identifies the
25 specific location of a natural person with precision and accuracy
26 within a radius of one thousand seven hundred fifty (1,750) feet.
27 (b) The term does not include the content of communications in
28 connection with, or any data generated by or connected to,
29 advanced utility metering infrastructure systems or equipment for
30 use by a utility.
31 Sec. 22. "Processing", with respect to personal data, means any
32 operation or set of operations performed, whether by manual or
33 automated means, on personal data or on sets of personal data,
34 such as the collection, use, storage, disclosure, analysis, deletion, or
35 modification of personal data.
36 Sec. 23. "Processor" means a person that processes personal
37 data on behalf of a controller.
38 Sec. 24. "Profiling" means any form of solely automated
39 processing performed on personal data to evaluate, analyze, or
40 predict personal aspects related to an identified or identifiable
41 individual's economic situation, health, personal preferences,
42 interests, reliability, behavior, location, or movements.
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1 Sec. 25. "Protected health information" has the meaning set
2 forth in 45 CFR 160.103.
3 Sec. 26. "Pseudonymous data" means personal data that cannot
4 be attributed to a specific individual because additional
5 information that would allow the data to be attributed to a specific
6 individual is:
7 (1) kept separately; and
8 (2) subject to appropriate technical and organizational
9 measures;
10 to ensure that the personal data is not attributed to an identified or
11 identifiable individual.
12 Sec. 27. "Publicly available information" means information:
13 (1) that is lawfully made available through federal, state, or
14 local government records; or
15 (2) that a business has a reasonable basis to believe is lawfully
16 made available:
17 (A) to the general public through widely distributed media;
18 (B) by the consumer; or
19 (C) by a person to whom the consumer has disclosed the
20 information;
21 unless the consumer has restricted the information to a
22 specific audience.
23 Sec. 28. (a) "Sale of personal data" means the exchange of
24 personal data for monetary consideration by a controller to a third
25 party.
26 (b) The term does not include:
27 (1) the disclosure of personal data to a processor that
28 processes the personal data on behalf of the controller;
29 (2) the disclosure of personal data to a third party for
30 purposes of providing a product or service requested by the
31 consumer or the parent of a child;
32 (3) the disclosure or transfer of personal data to an affiliate of
33 the controller;
34 (4) the disclosure of information that the consumer:
35 (A) intentionally made available to the general public via
36 a channel of mass media; and
37 (B) did not restrict to a specific audience; or
38 (5) the disclosure or transfer of personal data to a third party
39 as an asset that is part of a proposed or actual merger,
40 acquisition, bankruptcy, or other transaction in which the
41 third party assumes control of all or part of the controller's
42 assets.
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1 Sec. 29. "Sensitive data" means a category of personal data that
2 includes:
3 (1) personal data revealing racial or ethnic origin, religious
4 beliefs, a mental or physical health diagnosis, sexual
5 orientation, or citizenship or immigration status;
6 (2) genetic or biometric data that is processed for the purpose
7 of uniquely identifying a specific individual;
8 (3) personal data collected from a known child; and
9 (4) precise geolocation data.
10 Sec. 30. "State agency" has the meaning set forth in IC 1-1-15-3.
11 Sec. 31. (a) "Targeted advertising" means the displaying of an
12 advertisement to a consumer in which the advertisement is selected
13 based on personal data obtained from that consumer's activities
14 over time and across nonaffiliated websites or online applications
15 to predict the consumer's preferences or interests.
16 (b) The term does not include:
17 (1) advertisements based on activities within a controller's
18 own or affiliated websites or online applications;
19 (2) advertisements based on the context of a consumer's
20 current search query, visit to a website, or online application;
21 (3) advertisements directed to a consumer in response to the
22 consumer's request for information or feedback; or
23 (4) the processing of personal data solely for measuring or
24 reporting advertising performance, reach, or frequency.
25 Sec. 32. "Third party", with respect to a context to which this
26 article applies, means a natural or legal person, public authority,
27 agency, or body other than:
28 (1) the consumer;
29 (2) the controller;
30 (3) the processor; or
31 (4) an affiliate of the processor or the controller.
32 Sec. 33. "Trade secret" has the meaning set forth in IC 24-2-3-2.
33 Chapter 3. Personal Data; Consumer Rights
34 Sec. 1. (a) A consumer may invoke one (1) or more rights set
35 forth in subsection (b) by submitting to a controller a request
36 specifying the rights the consumer wishes to invoke. A child's
37 parent or legal guardian may invoke on behalf of the child one (1)
38 or more rights set forth in subsection (b) with respect to the
39 processing of personal data belonging to the child by submitting to
40 a controller a request specifying the rights the consumer wishes to
41 invoke on behalf of the child. Except as provided in IC 24-15-7-1(c)
42 and IC 24-15-7-2, and subject to any limitations or conditions set
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1 forth in subsections (b) and (c), a controller shall comply with an
2 authenticated consumer request to exercise a right set forth in
3 subsection (b).
4 (b) A consumer has the following rights:
5 (1) To confirm whether or not a controller is processing the
6 consumer's personal data and, subject to the limitations set
7 forth in subdivision (4), to access such personal data.
8 (2) To correct inaccuracies in the consumer's personal data
9 that the consumer previously provided to a controller, taking
10 into account the nature of the personal data and the purposes
11 of the processing of the consumer's personal data. Upon
12 receiving a request from a consumer under this subdivision,
13 a controller shall correct inaccurate information as requested
14 by the consumer, taking into account the nature of the
15 personal data and the purposes of the processing of the
16 consumer's personal data.
17 (3) To delete personal data provided by or obtained about the
18 consumer.
19 (4) To obtain either:
20 (A) a copy of; or
21 (B) a representative summary of;
22 the consumer's personal data that the consumer previously
23 provided to the controller. Information provided to a
24 consumer under this subdivision must be in a portable and, to
25 the extent technically practicable, readily usable format that
26 allows the consumer to transmit the data or summary to
27 another controller without hindrance, in any case in which the
28 processing is carried out by automated means. The controller
29 has the discretion to send either a copy or a representative
30 summary of the consumer's personal data under this
31 subdivision, taking into account the nature of the personal
32 data and the purposes of the processing of the consumer's
33 personal data. A controller is not required to provide a copy
34 or a representative summary of a consumer's personal data
35 to the same consumer under this subdivision more than one
36 (1) time in a twelve (12) month period.
37 (5) To opt out of the processing of the consumer's personal
38 data for purposes of:
39 (A) targeted advertising;
40 (B) the sale of personal data; or
41 (C) profiling in furtherance of decisions that produce legal
42 or similarly significant effects concerning the consumer.
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1 (c) Except as otherwise provided in this article, a controller shall
2 comply with a request by a consumer to exercise a consumer right
3 set forth in subsection (b) as follows:
4 (1) A controller shall respond to the consumer without undue
5 delay, but in any case not later than forty-five (45) days after
6 receipt of the consumer's request under this section. The
7 response period prescribed by this subdivision may be
8 extended once by an additional forty-five (45) days when
9 reasonably necessary, taking into account the complexity and
10 number of the consumer's requests, as long as the controller
11 informs the consumer of any such extension within the initial
12 forty-five (45) day response period, along with the reason for
13 the extension.
14 (2) If a controller declines to take action regarding the
15 consumer's request, the controller shall inform the consumer
16 without undue delay, but in any case not later than forty-five
17 (45) days after receipt of the consumer's request under this
18 section, of the justification for declining to take action, and
19 shall provide instructions for how to appeal the decision
20 under subsection (d).
21 (3) Information provided in response to a consumer request
22 shall be provided by a controller free of charge, up to one (1)
23 time annually per consumer. If requests from a consumer are
24 manifestly unfounded, excessive, or repetitive, the controller
25 may charge the consumer a reasonable fee to cover the
26 administrative costs of complying with the request or decline
27 to act on the request. The controller bears the burden of
28 demonstrating the manifestly unfounded, excessive, or
29 repetitive nature of the request.
30 (4) If a controller is unable to authenticate the request using
31 commercially reasonable efforts, the controller shall not be
32 required to comply with a request to initiate an action under
33 this section and may request that the consumer provide
34 additional information reasonably necessary to authenticate
35 the consumer and the consumer's request.
36 (d) A controller shall establish a process for a consumer to
37 appeal, within a reasonable period of time after the consumer's
38 receipt of a decision by the controller under subsection (c)(2), the
39 controller's refusal to take action on a request by the consumer
40 under this section. The appeal process shall be conspicuously
41 available and similar to the process for submitting requests to
42 invoke a right under this section. Not later than sixty (60) days
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1 after receipt of an appeal, a controller shall inform the consumer
2 in writing of any action taken or not taken in response to the
3 appeal, including a written explanation of the reasons for the
4 decisions. If the appeal is denied, the controller shall also provide
5 the consumer with an online mechanism, if available, or other
6 method through which the consumer may contact the attorney
7 general to submit a complaint.
8 Chapter 4. Data Controller Responsibilities; Transparency
9 Sec. 1. Except as provided in IC 24-15-7-2, a controller has the
10 following responsibilities:
11 (1) A controller shall limit the collection of personal data to
12 what is adequate, relevant, and reasonably necessary in
13 relation to the purposes for which such data is processed, as
14 disclosed to the consumer.
15 (2) Except as otherwise provided in this article, a controller
16 shall not process personal data for purposes that are neither
17 reasonably necessary to nor compatible with the disclosed
18 purposes for which the personal data is processed, unless the
19 controller obtains the consumer's consent.
20 (3) A controller shall establish, implement, and maintain
21 reasonable administrative, technical, and physical data
22 security practices to protect the confidentiality, integrity, and
23 accessibility of personal data. The data security practices
24 required under this subdivision must be appropriate to the
25 volume and nature of the personal data at issue.
26 (4) A controller shall not process personal data in violation of
27 state and federal laws that prohibit unlawful discrimination
28 against consumers. A controller shall not discriminate against
29 a consumer for exercising any of the consumer rights set forth
30 in this article, including by denying goods or services to the
31 consumer, charging different prices or rates for goods and
32 services, or providing a different level or quality of goods or
33 services to the consumer. However, nothing in this subdivision
34 shall be construed to:
35 (A) require a controller to provide a product or service
36 that requires the personal data of a consumer that the
37 controller does not collect or maintain; or
38 (B) prohibit a controller from offering a different price,
39 rate, level, quality, or selection of goods or services to a
40 consumer, including offering goods or services for no fee,
41 if the consumer has exercised the consumer's right to opt
42 out under IC 24-15-3-1(b)(5) or if the offer is related to a
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1 consumer's voluntary participation in a bona fide loyalty,
2 rewards, premium features, discount, or club card
3 program.
4 (5) A controller shall not process sensitive data concerning a
5 consumer without obtaining the consumer's consent, or, in the
6 case of the processing of sensitive data concerning a child,
7 without processing such data in accordance with the federal
8 Children's Online Privacy Protection Act (15 U.S.C. 6501 et
9 seq.).
10 Sec. 2. Any provision of a contract or agreement of any kind
11 that purports to waive or limit in any way a consumer right's
12 under IC 24-15-3 is contrary to public policy and is void and
13 unenforceable.
14 Sec. 3. A controller shall provide consumers with a reasonably
15 accessible, clear, and meaningful privacy notice that includes:
16 (1) the categories of personal data processed by the controller;
17 (2) the purpose for processing personal data;
18 (3) how consumers may exercise their consumer rights under
19 IC 24-15-3, including how a consumer may appeal a
20 controller's decision with regard to the consumer's request;
21 (4) the categories of personal data that the controller shares
22 with third parties, if any; and
23 (5) the categories of third parties, if any, with whom the
24 controller shares personal data.
25 Sec. 4. If a controller sells a consumer's personal data to third
26 parties or uses a consumer's personal data for targeted advertising,
27 the controller shall clearly and conspicuously disclose such activity,
28 as well as the manner in which a consumer may exercise the right
29 to opt out of such sales or use.
30 Sec. 5. A controller shall establish, and shall describe in a
31 privacy notice provided under section 3 of this chapter, one (1) or
32 more secure and reliable means for consumers to submit a request
33 to exercise their rights under IC 24-15-3. Such means must take
34 into account:
35 (1) the ways in which consumers normally interact with the
36 controller;
37 (2) the need for the secure and reliable communication of such
38 requests; and
39 (3) the ability of the controller to authenticate the identity of
40 the consumer making the request.
41 A controller may not require a consumer to create a new account
42 in order to exercise the consumer's rights under IC 24-15-3 but
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1 may require a consumer to use an existing account.
2 Chapter 5. Responsibility According to Role; Controllers and
3 Processors
4 Sec. 1. A processor shall adhere to the instructions of a
5 controller and shall assist the controller in meeting its obligations
6 under this chapter. Such assistance shall include the following:
7 (1) Fulfilling the controller's obligation to respond to
8 consumer requests under IC 24-15-3 by appropriate technical
9 and organizational measures, insofar as this is reasonably
10 practicable, and taking into account the nature of processing
11 and the information available to the processor.
12 (2) Taking into account the nature of processing and the
13 information available to the processor, assisting the controller
14 in meeting the controller's obligations in relation to:
15 (A) the security of processing the personal data; and
16 (B) the notification of a breach of security of the system of
17 the processor under IC 24-4.9;
18 in order to meet the controller's obligations.
19 (3) Providing necessary information to enable the controller
20 to conduct and document data protection assessments under
21 IC 24-15-6.
22 Sec. 2. (a) A contract between a controller and a processor shall
23 govern the processor's data processing procedures with respect to
24 processing performed on behalf of the controller. The contract
25 must be binding and clearly set forth instructions for processing
26 personal data, the nature and purpose of processing, the type of
27 data subject to processing, the duration of processing, and the
28 rights and obligations of both parties. The contract must also
29 include requirements that the processor do the following:
30 (1) Ensure that each individual processing personal data is
31 subject to a duty of confidentiality with respect to the data.
32 (2) At the controller's direction, delete or return all personal
33 data to the controller as requested at the end of the provision
34 of services, unless retention of the personal data is required by
35 law.
36 (3) Upon the reasonable request of the controller, make
37 available to the controller all information in its possession
38 necessary to demonstrate the processor's compliance with the
39 obligations in this chapter.
40 (4) Allow, and cooperate with, reasonable assessments by the
41 controller or the controller's designated assessor.
42 Alternatively, the processor may arrange for a qualified and
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1 independent assessor to conduct an assessment of the
2 processor's policies and technical and organizational
3 measures in support of the processor's obligations under this
4 chapter using an appropriate and accepted control standard
5 or framework and assessment procedure for such
6 assessments. The processor shall provide a report of any such
7 assessment to the controller upon request.
8 (5) Subject to subsection (b), engage any subcontractor
9 pursuant to a written contract that requires the subcontractor
10 to meet the obligations of the processor with respect to the
11 personal data.
12 (b) Nothing in this section shall be construed to relieve a
13 controller or a processor from the liabilities imposed on the
14 controller or processor by virtue of its role in the processing
15 relationship.
16 Sec. 3. Determining whether a person is acting as a controller or
17 a processor with respect to a specific processing of data is a fact
18 based determination that depends upon the context in which
19 personal data is processed. A processor that continues to adhere to
20 a controller's instructions with respect to a specific processing of
21 personal data remains a processor.
22 Chapter 6. Data Protection Assessments
23 Sec. 1. (a) The data protection assessment requirements set
24 forth in this chapter apply to processing activities created or
25 generated after December 31, 2023, and are not retroactive to any
26 processing activities created or generated before January 1, 2024.
27 (b) A controller shall conduct and document a data protection
28 assessment of each of the following processing activities involving
29 personal data:
30 (1) The processing of personal data for purposes of targeted
31 advertising.
32 (2) The sale of personal data.
33 (3) The processing of personal data for purposes of profiling,
34 if such profiling presents a reasonably foreseeable risk of:
35 (A) unfair or deceptive treatment of, or unlawful disparate
36 impact on, consumers;
37 (B) financial, physical, or reputational injury to
38 consumers;
39 (C) a physical or other intrusion upon the solitude or
40 seclusion, or the private affairs or concerns, of consumers,
41 if such intrusion would be offensive to a reasonable person;
42 or
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1 (D) other substantial injury to consumers.
2 (4) The processing of sensitive data.
3 (5) Any processing activities involving personal data that
4 present a heightened risk of harm to consumers.
5 (c) Data protection assessments conducted under this chapter
6 shall identify and weigh the benefits that may flow, directly and
7 indirectly, from the processing to the controller, the consumer,
8 other stakeholders, and the public against the potential risks to the
9 rights of the consumer associated with such processing, as
10 mitigated by safeguards that can be employed by the controller to
11 reduce such risks. The use of de-identified data and the reasonable
12 expectations of consumers, as well as the context of the processing
13 and the relationship between the controller and the consumer
14 whose personal data will be processed, shall be factored into this
15 assessment by the controller.
16 (d) A single data protection assessment may address a
17 comparable set of processing operations that include similar
18 activities.
19 (e) A data protection assessment conducted by a controller for
20 the purpose of compliance with other laws or regulations may be
21 used to comply with this section if the assessment has a reasonably
22 comparable scope and effect to an assessment conducted under this
23 section.
24 Sec. 2. (a) The attorney general may request, pursuant to a civil
25 investigative demand, that a controller disclose any data protection
26 assessment that is relevant to an investigation conducted by the
27 attorney general. Upon receipt of such a request, the controller
28 shall make the data protection assessment available to the attorney
29 general. Subject to subsection (b), the attorney general may
30 evaluate the data protection assessment for a controller's
31 compliance with the responsibilities set forth in IC 24-15-4.
32 (b) Data protection assessments are confidential and exempt
33 from public inspection and copying under IC 5-14-13-4. The
34 disclosure of a data protection assessment pursuant to a request
35 from the attorney general does not constitute a waiver of
36 attorney-client privilege or work product protection with respect
37 to the assessment and any information contained in the assessment.
38 Chapter 7. Processing De-identified Data or Pseudonymous
39 Data; Exemptions
40 Sec. 1. (a) A controller in possession of de-identified data shall:
41 (1) take reasonable measures to ensure that the data cannot
42 be associated with an individual;
SB 358—LS 7186/DI 101 16
1 (2) publicly commit to maintaining and using de-identified
2 data without attempting to re-identify the data; and
3 (3) contractually obligate any recipients of the de-identified
4 data to comply with all provisions of this chapter.
5 (b) This chapter shall not be construed to require a controller
6 or processor to:
7 (1) re-identify de-identified data or pseudonymous data;
8 (2) maintain data in identifiable form; or
9 (3) collect, obtain, retain, or access any data or technology, in
10 order to be capable of associating an authenticated consumer
11 request with personal data.
12 (c) This chapter shall not be construed to require a controller or
13 processor to comply with a request of a consumer under IC 24-15-3
14 if all of the following conditions are met:
15 (1) The controller is not reasonably capable of associating the
16 request with the personal data or it would be unreasonably
17 burdensome for the controller to associate the request with
18 the personal data.
19 (2) The controller does not use the personal data to recognize
20 or respond to the specific consumer who is the subject of the
21 personal data, or associate the personal data with other
22 personal data about the same specific consumer.
23 (3) The controller does not sell the personal data to any third
24 party or otherwise voluntarily disclose the personal data to
25 any third party other than a processor.
26 Sec. 2. The:
27 (1) rights of a consumer set forth in IC 24-15-3-1(b)(1)
28 through IC 24-15-3-1(b)(4); and
29 (2) responsibilities of a controller under IC 24-15-4-1(1)
30 through IC 24-15-4-1(4);
31 do not apply to pseudonymous data in any case in which the
32 controller is able to demonstrate that any information necessary to
33 identify the consumer is kept separately and is subject to effective
34 technical and organizational controls that prevent the controller
35 from accessing such information.
36 Sec. 3. A controller that discloses pseudonymous data or
37 de-identified data shall exercise reasonable oversight to monitor
38 compliance with any contractual commitments to which the
39 pseudonymous data or de-identified data is subject and shall take
40 appropriate steps to address any breaches of those contractual
41 commitments.
42 Chapter 8. Limitations
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1 Sec. 1. (a) This article shall not be construed to restrict a
2 controller's or processor's ability to do any of the following:
3 (1) Comply with federal, state, or local laws, rules, or
4 regulations.
5 (2) Comply with a civil, criminal, or regulatory inquiry,
6 investigation, subpoena, or summons by a federal, state, local,
7 or other governmental authority.
8 (3) Cooperate with law enforcement agencies concerning
9 conduct or activity that the controller or processor reasonably
10 and in good faith believes may violate federal, state, or local
11 laws, rules, or regulations.
12 (4) Investigate, establish, exercise, prepare for, or defend legal
13 claims.
14 (5) Provide a product or service specifically requested by a
15 consumer, perform a contract to which the consumer, or a
16 parent of a child, is a party, including fulfilling the terms of a
17 written warranty, or take steps at the request of the consumer
18 or parent before entering into a contract.
19 (6) Take immediate steps to protect an interest that is
20 essential for the life or physical safety of the consumer or of
21 another individual, if the processing cannot be manifestly
22 based on another legal basis.
23 (7) Prevent, detect, protect against, or respond to security
24 incidents, identity theft, fraud, harassment, malicious or
25 deceptive activities, or any illegal activity, to preserve the
26 integrity or security of systems, or to investigate, report, or
27 prosecute those responsible for any such action.
28 (8) Engage in public or peer reviewed scientific or statistical
29 research that is in the public interest and that adheres to all
30 applicable ethics and privacy laws and is approved,
31 monitored, and governed by an institutional review board, or
32 a similar independent oversight entity, that determines if:
33 (A) the information is likely to provide substantial benefits
34 that do not exclusively accrue to the controller;
35 (B) the expected benefits of the research outweigh the
36 privacy risks; and
37 (C) the controller has implemented reasonable safeguards
38 to mitigate privacy risks associated with research,
39 including any risks associated with re-identification.
40 (9) Assist another controller, processor, or third party with
41 any obligation described in this section.
42 (b) Processing personal data for a purposes expressly identified
SB 358—LS 7186/DI 101 18
1 in subsection (a)(1) through (a)(9) does not by itself make a person
2 a controller with respect to such processing.
3 Sec. 2. The obligations imposed on a controller or a processor
4 under this article do not restrict a controller's or processor's
5 ability to collect, use, or retain data to do the following:
6 (1) Conduct internal research to develop, improve, or repair
7 products, services, or technology.
8 (2) Effectuate a product recall.
9 (3) Identify and repair technical errors that impair existing or
10 intended functionality.
11 (4) Perform internal operations that are:
12 (A) reasonably aligned with the expectations of the
13 consumer;
14 (B) reasonably anticipated based on the consumer's
15 existing relationship with the controller; or
16 (C) otherwise compatible with:
17 (i) processing data in furtherance of the provision of a
18 product or service specifically requested by a consumer,
19 or the parent of a child; or
20 (ii) the performance of a contract to which the consumer
21 is a party.
22 Sec. 3. The obligations imposed on a controller or a processor
23 under this article do not apply if compliance by the controller or
24 processor with this article would violate an evidentiary privilege
25 under Indiana law. This article shall not be construed to prevent
26 a controller or processor from providing, as part of a privileged
27 communication, personal data concerning a consumer to a person
28 covered by an evidentiary privilege under Indiana law.
29 Sec. 4. A controller or processor that discloses personal data to
30 a third party controller or processor in compliance with this article
31 is not in violation of this article if the third party controller or
32 processor that receives and processes the personal data violates
33 this article, as long as, at the time of disclosing the personal data,
34 the disclosing controller or processor did not have actual
35 knowledge that the recipient intended to commit a violation. A
36 third party controller or processor receiving personal data from a
37 controller or processor is likewise not in violation of this article
38 solely because of the transgressions of the controller or processor
39 from which it receives such personal data.
40 Sec. 5. This article:
41 (1) shall not be construed as an obligation imposed on
42 controllers and processors that adversely affects the rights or
SB 358—LS 7186/DI 101 19
1 freedoms of any persons, such as exercising the right of free
2 speech under the First Amendment to the United States
3 Constitution; and
4 (2) does not apply to personal data in the context of a purely
5 personal or household activity.
6 Sec. 6. Nothing in this article shall be construed as requiring a
7 controller to disclose trade secrets.
8 Sec. 7. (a) Personal data processed by a controller for a purpose
9 authorized under this chapter may not be processed for any other
10 purpose unless otherwise allowed under this article. Personal data
11 processed by a controller under this chapter may be processed to
12 the extent that such processing is:
13 (1) reasonably necessary and proportionate to a purpose
14 authorized under this chapter; and
15 (2) adequate, relevant, and limited to what is necessary in
16 relation to the specific purpose.
17 (b) Personal data collected, used, or retained under section 2 of
18 this chapter shall, as applicable, take into account the nature and
19 purpose of the collection, use, or retention. Any personal data
20 collected, used, or retained must be subject to reasonable
21 administrative, technical, and physical measures to:
22 (1) protect the confidentiality, integrity, and accessibility of
23 the personal data; and
24 (2) reduce reasonably foreseeable risks of harm to consumers
25 relating to such collection, use, or retention of the personal
26 data.
27 (c) If a controller processes personal data pursuant to an
28 exemption under this chapter, the controller bears the burden of
29 demonstrating that such processing:
30 (1) qualifies for the exemption; and
31 (2) complies with the requirements set forth in this section.
32 Chapter 9. Investigative Authority
33 Sec. 1. Whenever the attorney general has reasonable cause to
34 believe that any person has engaged in, is engaging in, or is about
35 to engage in any violation of this article, the attorney general is
36 empowered to issue a civil investigative demand to investigate the
37 suspected violation.
38 Chapter 10. Enforcement
39 Sec. 1. The attorney general has exclusive authority to enforce
40 the provisions of this article.
41 Sec. 2. (a) Before initiating an action under this chapter, the
42 attorney general shall provide a controller or processor thirty (30)
SB 358—LS 7186/DI 101 20
1 days written notice identifying the specific provisions of this article
2 that the attorney general alleges have been or are being violated.
3 If within the thirty (30) day period set forth in this section, the
4 controller or processor:
5 (1) cures the alleged violation; and
6 (2) provides the attorney general an express written statement
7 that:
8 (A) the alleged violation has been cured; and
9 (B) actions have been taken to ensure no further violations
10 will occur;
11 the attorney general shall not initiate an action against the
12 controller or processor.
13 (b) If a controller or processor:
14 (1) continues to violate this chapter following the thirty (30)
15 day period set forth in subsection (a); or
16 (2) breaches an express written statement provided to the
17 attorney general under subsection (a)(2);
18 the attorney general may initiate an action in the name of the state
19 and may seek an injunction to restrain any violations of this article
20 and a civil penalty not to exceed seven thousand five hundred
21 dollars ($7,500) for each violation under this article.
22 (c) The attorney general may recover reasonable expenses
23 incurred in investigating and preparing the case, including
24 attorney fees, in any action initiated under this chapter.
25 Sec. 3. Nothing in this article shall be construed as providing the
26 basis for a private right of action for violations of this article or
27 any other law.
28 Chapter 11. Consumer Privacy Fund
29 Sec. 1. (a) The consumer privacy fund is established for the
30 purpose of supporting the work of the attorney general in
31 enforcing this article. The fund shall be administered by the
32 attorney general.
33 (b) The fund consists of civil penalties collected by the attorney
34 in actions to enforce this article.
35 (c) The expenses of administering the fund shall be paid from
36 money in the fund.
37 (d) The treasurer of state shall invest money in the fund not
38 currently needed to meet the obligations of the fund in the same
39 manner as other public money may be invested. Interest that
40 accrues from these investments shall be deposited in the fund.
41 (e) Money in the fund at the end of a state fiscal year does not
42 revert to the state general fund.
SB 358—LS 7186/DI 101 21
1 Chapter 12. Preemption; Other Laws
2 Sec. 1. This article supersedes and preempts all rules,
3 regulations, codes, ordinances, and other laws adopted by a city,
4 county, city and county, municipality, or local agency regarding
5 the processing of personal data by controllers or processors.
6 Sec. 2. Any reference to federal, state, or local law or statute in
7 this article includes any accompanying rules, regulations, or
8 exemptions.
SB 358—LS 7186/DI 101 22
COMMITTEE REPORT
Madam President: The Senate Committee on Commerce and
Technology, to which was referred Senate Bill No. 358, has had the
same under consideration and begs leave to report the same back to the
Senate with the recommendation that said bill be AMENDED as
follows:
Delete everything after the enacting clause and insert the following:
(SEE TEXT OF BILL)
and when so amended that said bill do pass.
(Reference is to SB 358 as introduced.)
PERFECT, Chairperson
Committee Vote: Yeas 10, Nays 0.
SB 358—LS 7186/DI 101