*ES0358.1*
February 17, 2022
ENGROSSED
SENATE BILL No. 358
_____
DIGEST OF SB 358 (Updated February 16, 2022 8:05 am - DI 75)
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, 2025. 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
(Continued next page)
Effective: January 1, 2025.
Brown L, Buchanan, Perfect, Koch,
Pol Jr.
(HOUSE SPONSORS — MORRIS, TESHKA, DAVISSON J., ANDRADE)
January 12, 2022, read first time and referred to Committee on Commerce and Technology.
January 27, 2022, amended, reported favorably — Do Pass.
January 31, 2022, read second time, amended, ordered engrossed.
February 1, 2022, engrossed. Read third time, passed. Yeas 49, nays 0.
HOUSE ACTION
February 7, 2022, read first time and referred to Committee on Commerce, Small Business
and Economic Development.
February 17, 2022, amended, reported — Do Pass.
ES 358—LS 7186/DI 101 Digest Continued
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 preemption of local rules,
regulation, and laws regarding the processing of personal data.
ES 358—LS 7186/DI 101ES 358—LS 7186/DI 101 February 17, 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.
ENGROSSED
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, 2025]:
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 of the following:
15 (1) Any of the following:
ES 358—LS 7186/DI 101 2
1 (A) A body, authority, board, bureau, commission, district,
2 or agency of the state or of any political subdivision of the
3 state.
4 (B) A third party under contract with an entity described
5 in clause (A), when acting on behalf of the entity. This
6 clause does exempt data held or created by third parties
7 outside of the scope of the contract with the entity.
8 (2) Any financial institutions and affiliates, or data subject to
9 Title V of the federal Gramm-Leach-Bliley Act (15 U.S.C.
10 6801 et seq.).
11 (3) Any covered entity or business associate governed by the
12 privacy, security, and breach notification rules issued by the
13 United States Department of Health and Human Services (45
14 CFR Parts 160 and 164) pursuant to HIPAA.
15 (4) Any nonprofit organization.
16 (5) Any institution of higher education.
17 (6) Any public utility (as defined in IC 8-1-2-1(a)) or service
18 company affiliated with a public utility (as defined in
19 IC 8-1-2-1(a)). For purposes of this subdivision, "service
20 company" means an associate company within a holding
21 company system organized specifically for the purpose of
22 providing goods or services to a public utility (as defined in
23 IC 8-1-2-1(a)) in the same holding company system.
24 Sec. 2. The following information and data are exempt from this
25 article:
26 (1) Protected health information under HIPAA.
27 (2) Patient identifying information for purposes of 42 U.S.C.
28 290dd-2.
29 (3) Any of the following:
30 (A) Identifiable private information for purposes of the
31 federal policy for the protection of human subjects under
32 45 CFR Part 46.
33 (B) Identifiable private information that is otherwise
34 information collected as part of human subjects research
35 under the good clinical practice guidelines issued by the
36 International Council for Harmonisation of Technical
37 Requirements for Pharmaceuticals for Human Use.
38 (C) The protection of human subjects under 21 CFR Parts
39 6, 50, and 56.
40 (D) Personal data used or shared in research conducted in
41 accordance with the requirements set forth in this article.
42 (E) Other research conducted in accordance with
ES 358—LS 7186/DI 101 3
1 applicable law.
2 (4) Information and documents created for purposes of the
3 federal Health Care Quality Improvement Act of 1986 (42
4 U.S.C. 11101 et seq.).
5 (5) Patient safety work product for purposes of the federal
6 Patient Safety and Quality Improvement Act (42 U.S.C.
7 299b-21 et seq.).
8 (6) Information derived from any of the health care related
9 information set forth in this section that is de-identified in
10 accordance with the requirements for de-identification under
11 HIPAA.
12 (7) Information:
13 (A) originating from;
14 (B) intermingled with so as to be indistinguishable from; or
15 (C) treated in the same manner as;
16 information that is exempt under this section and that is
17 maintained by a covered entity or business associate, as
18 defined in HIPAA, or a program or qualified service
19 organization, as defined in 42 U.S.C. 290dd-2.
20 (8) Information used only for public health activities and
21 purposes, as authorized by HIPAA.
22 (9) The collection, maintenance, disclosure, sale,
23 communication, or use of any personal information bearing
24 on a consumer's credit worthiness, credit standing, credit
25 capacity, character, general reputation, personal
26 characteristics, or mode of living by:
27 (A) a consumer reporting agency, furnisher, or user that
28 provides information for use in a consumer report; or
29 (B) a user of a consumer report;
30 but only to the extent that such activity is regulated by and
31 authorized under the federal Fair Credit Reporting Act (15
32 U.S.C. 1681 et seq.).
33 (10) Personal data collected, processed, sold, or disclosed in
34 compliance with the federal Driver's Privacy Protection Act
35 of 1994 (18 U.S.C. 2721 et seq.).
36 (11) Personal data regulated by the federal Family
37 Educational Rights and Privacy Act (20 U.S.C. 1232g et seq.).
38 (12) Personal data collected, processed, sold, or disclosed in
39 compliance with the federal Farm Credit Act (12 U.S.C. 2001
40 et seq.).
41 (13) Data processed or maintained:
42 (A) in the course of an individual applying to, employed by,
ES 358—LS 7186/DI 101 4
1 or acting as an agent or independent contractor of a
2 controller, processor, or third party, to the extent that the
3 data is collected and used within the context of that role;
4 (B) as emergency contact information for an individual
5 under this article and used for emergency contact
6 purposes; or
7 (C) that is necessary to retain to administer benefits for
8 another individual relating to the individual under clause
9 (A) and used for the purposes of administering those
10 benefits.
11 Sec. 3. A:
12 (1) controller; or
13 (2) processor;
14 that complies with the Children's Online Privacy Protection Act
15 (15 U.S.C. 6501 et seq.), and with any rules or regulations under
16 that act, satisfies any obligation to obtain parental consent under
17 this article.
18 Chapter 2. Definitions
19 Sec. 0.5. The definitions in this chapter apply throughout this
20 article.
21 Sec. 1. (a) "Affiliate" means a legal entity that:
22 (1) controls, is controlled by, or is under common control with
23 another legal entity; or
24 (2) shares common branding with another legal entity.
25 (b) For purposes of this section, "control", with respect to a
26 company, means:
27 (1) ownership of, or the power to vote, more than fifty percent
28 (50%) of the outstanding shares of any class of voting security
29 of the company;
30 (2) control in any manner over the election of a majority of
31 the directors or of individuals exercising similar functions; or
32 (3) the power to exercise controlling influence over the
33 management of the company.
34 Sec. 2. "Aggregate data" means information:
35 (1) that relates to a group or category of consumers;
36 (2) from which individual consumer identities have been
37 removed; and
38 (3) that is not linked or reasonably linkable to any consumer.
39 Sec. 3. "Authenticate" means to verify through reasonable
40 means that a consumer who is entitled to exercise the personal data
41 rights provided by IC 24-15-3 is the same consumer exercising such
42 rights with respect to particular personal data.
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1 Sec. 4. (a) "Biometric data" means data that:
2 (1) is generated by automatic measurements of an individual's
3 biological characteristics, such as a fingerprint, a voiceprint,
4 images of the retina or iris, or other unique biological
5 patterns or characteristics; and
6 (2) is used to identify a specific individual.
7 (b) The term does not include:
8 (1) a physical or digital photograph;
9 (2) a video or audio recording, or data generated from a video
10 or audio recording; or
11 (3) information collected, used, or stored for health care
12 treatment, payment, or operations under HIPAA.
13 Sec. 5. "Business associate" has the meaning set forth in 45 CFR
14 160.103.
15 Sec. 6. "Child" means any individual who is less than thirteen
16 (13) years of age.
17 Sec. 7. (a) "Consent" means a clear affirmative act that signifies
18 a consumer's freely given, specific, informed, and unambiguous
19 agreement to process personal data relating to the consumer.
20 (b) For purposes of this section, a "clear affirmative act"
21 includes a written statement, including a statement written by
22 electronic means, or any other unambiguous affirmative action.
23 Sec. 8. (a) "Consumer" means an individual who:
24 (1) is a resident of Indiana; and
25 (2) is acting only for a personal, family, or household purpose.
26 (b) The term does not include an individual acting in a
27 commercial or employment context.
28 Sec. 9. "Controller" means a person that, alone or jointly with
29 others, determines the purpose and means of processing personal
30 data.
31 Sec. 10. "Covered entity" has the meaning set forth in 45 CFR
32 160.103.
33 Sec. 11. "Decision that produces legal or similarly significant
34 effects concerning a consumer" means a decision made by a
35 controller that results in the provision or denial by the controller
36 of:
37 (1) financial and lending services;
38 (2) housing;
39 (3) insurance;
40 (4) education enrollment;
41 (5) criminal justice;
42 (6) employment opportunities;
ES 358—LS 7186/DI 101 6
1 (7) health care services; or
2 (8) access to basic necessities, such as food and water.
3 Sec. 12. "De-identified data" means data that cannot reasonably
4 be linked to an identified or identifiable individual because a
5 controller that possesses the data:
6 (1) takes reasonable measures to ensure that the data cannot
7 be associated with an individual;
8 (2) publicly commits to maintaining and using the data
9 without attempting to re-identify the data; and
10 (3) obligates any recipients of the data through contractual
11 requirements to comply with all applicable provisions of this
12 article.
13 Sec. 13. "Health care provider" has the meaning set forth in
14 IC 4-6-14-2.
15 Sec. 14. "Health record" has the meaning set forth in
16 IC 1-1-4-5(a)(6).
17 Sec. 15. "HIPAA" refers to the federal Health Insurance
18 Portability and Accountability Act of 1996 (42 U.S.C. 1320d et
19 seq.).
20 Sec. 16. "Identified or identifiable individual" means an
21 individual who can be readily identified, directly or indirectly.
22 Sec. 17. "Institution of higher education" means a public or
23 private college or university.
24 Sec. 18. "Nonprofit organization" means any organization
25 exempt from taxation under Section 501(c)(3), 501(c)(6), or
26 501(c)(12) of the Internal Revenue Code.
27 Sec. 19. (a) "Personal data" means information that is linked or
28 reasonably linkable to an identified or identifiable consumer.
29 (b) The term does not include:
30 (1) de-identified data;
31 (2) aggregate data; or
32 (3) publicly available information.
33 Sec. 20. (a) "Precise geolocation data" means information
34 derived from technology, including global positioning system level
35 latitude and longitude coordinates, that directly identifies the
36 specific location of a natural person with precision and accuracy
37 within a radius of one thousand seven hundred fifty (1,750) feet.
38 (b) The term does not include the content of communications or
39 any data generated by or connected to advanced utility metering
40 infrastructure systems or equipment for use by a utility.
41 Sec. 21. "Processing", with respect to personal data, means any
42 operation or set of operations performed, whether by manual or
ES 358—LS 7186/DI 101 7
1 automated means, on personal data or on sets of personal data,
2 such as the collection, use, storage, disclosure, analysis, deletion, or
3 modification of personal data.
4 Sec. 22. "Processor" means a person that processes personal
5 data on behalf of a controller.
6 Sec. 23. "Profiling" means any form of solely automated
7 processing performed on personal data to evaluate, analyze, or
8 predict personal aspects related to an identified or identifiable
9 individual's economic situation, health, personal preferences,
10 interests, reliability, behavior, location, or movements.
11 Sec. 24. "Protected health information" has the meaning set
12 forth in 45 CFR 160.103.
13 Sec. 25. "Pseudonymous data" means personal data that cannot
14 be attributed to a specific individual because additional
15 information that would allow the data to be attributed to a specific
16 individual is:
17 (1) kept separately; and
18 (2) subject to appropriate technical and organizational
19 measures;
20 to ensure that the personal data is not attributed to an identified or
21 identifiable individual.
22 Sec. 26. "Publicly available information" means information:
23 (1) that is lawfully made available through federal, state, or
24 local government records; or
25 (2) that a business has a reasonable basis to believe is lawfully
26 made available:
27 (A) to the general public through widely distributed media;
28 (B) by the consumer; or
29 (C) by a person to whom the consumer has disclosed the
30 information;
31 unless the consumer has restricted the information to a
32 specific audience.
33 Sec. 27. (a) "Sale of personal data" means the exchange of
34 personal data for monetary consideration by a controller to a third
35 party.
36 (b) The term does not include:
37 (1) the disclosure of personal data to a processor that
38 processes the personal data on behalf of the controller;
39 (2) the disclosure of personal data to a third party for
40 purposes of providing a product or service requested by the
41 consumer or the parent of a child;
42 (3) the disclosure or transfer of personal data to an affiliate of
ES 358—LS 7186/DI 101 8
1 the controller;
2 (4) the disclosure of information that the consumer:
3 (A) intentionally made available to the general public via
4 a channel of mass media; and
5 (B) did not restrict to a specific audience; or
6 (5) the disclosure or transfer of personal data to a third party
7 as an asset that is part of a proposed or actual merger,
8 acquisition, bankruptcy, or other transaction in which the
9 third party assumes control of all or part of the controller's
10 assets.
11 Sec. 28. "Sensitive data" means a category of personal data that
12 includes:
13 (1) personal data revealing racial or ethnic origin, religious
14 beliefs, a mental or physical health diagnosis, sexual
15 orientation, or citizenship or immigration status;
16 (2) genetic or biometric data that is processed for the purpose
17 of uniquely identifying a specific individual;
18 (3) personal data collected from a known child; and
19 (4) precise geolocation data.
20 Sec. 29. "State agency" has the meaning set forth in IC 1-1-15-3.
21 Sec. 30. (a) "Targeted advertising" means the displaying of an
22 advertisement to a consumer in which the advertisement is selected
23 based on personal data obtained from that consumer's activities
24 over time and across nonaffiliated websites or online applications
25 to predict the consumer's preferences or interests.
26 (b) The term does not include:
27 (1) advertisements based on activities within a controller's
28 own or affiliated web sites or online applications;
29 (2) advertisements based on the context of a consumer's
30 current search query, visit to a web site, or online application;
31 (3) advertisements directed to a consumer in response to the
32 consumer's request for information or feedback; or
33 (4) the processing of personal data solely for measuring or
34 reporting advertising performance, reach, or frequency.
35 Sec. 31. "Third party", with respect to a context to which this
36 article applies, means a natural or legal person, public authority,
37 agency, or body other than:
38 (1) the consumer;
39 (2) the controller;
40 (3) the processor; or
41 (4) an affiliate of the processor or the controller.
42 Sec. 32. "Trade secret" has the meaning set forth in IC 24-2-3-2.
ES 358—LS 7186/DI 101 9
1 Chapter 3. Personal Data; Consumer Rights
2 Sec. 1. (a) A consumer may invoke one (1) or more rights set
3 forth in subsection (b) by submitting to a controller a request
4 specifying the rights the consumer wishes to invoke. A known
5 child's parent or legal guardian may invoke on behalf of the child
6 one (1) or more rights set forth in subsection (b) with respect to the
7 processing of personal data belonging to the known child by
8 submitting to a controller a request specifying the rights the
9 consumer wishes to invoke on behalf of the child. Except as
10 provided in IC 24-15-7-1(c) and IC 24-15-7-2, and subject to any
11 limitations or conditions set forth in subsections (b) and (c), a
12 controller shall comply with an authenticated consumer request to
13 exercise a right set forth in subsection (b).
14 (b) A consumer has the following rights:
15 (1) To confirm whether or not a controller is processing the
16 consumer's personal data and, subject to the limitations set
17 forth in subdivision (4), to access such personal data.
18 (2) To correct inaccuracies in the consumer's personal data
19 that the consumer previously provided to a controller, taking
20 into account the nature of the personal data and the purposes
21 of the processing of the consumer's personal data. Upon
22 receiving a request from a consumer under this subdivision,
23 a controller shall correct inaccurate information as requested
24 by the consumer, taking into account the nature of the
25 personal data and the purposes of the processing of the
26 consumer's personal data.
27 (3) To delete personal data provided by or obtained about the
28 consumer.
29 (4) To obtain either:
30 (A) a copy of; or
31 (B) a representative summary of;
32 the consumer's personal data that the consumer previously
33 provided to the controller. Information provided to a
34 consumer under this subdivision must be in a portable and, to
35 the extent technically practicable, readily usable format that
36 allows the consumer to transmit the data or summary to
37 another controller without hindrance, in any case in which the
38 processing is carried out by automated means. The controller
39 has the discretion to send either a copy or a representative
40 summary of the consumer's personal data under this
41 subdivision, taking into account the nature of the personal
42 data and the purposes of the processing of the consumer's
ES 358—LS 7186/DI 101 10
1 personal data. A controller is not required to provide a copy
2 or a representative summary of a consumer's personal data
3 to the same consumer under this subdivision more than one
4 (1) time in a twelve (12) month period.
5 (5) To opt out of the processing of the consumer's personal
6 data for purposes of:
7 (A) targeted advertising;
8 (B) the sale of personal data; or
9 (C) profiling in furtherance of decisions that produce legal
10 or similarly significant effects concerning the consumer.
11 (c) Except as otherwise provided in this article, a controller shall
12 comply with a request by a consumer to exercise a consumer right
13 set forth in subsection (b) as follows:
14 (1) A controller shall respond to the consumer without undue
15 delay, but in any case not later than forty-five (45) days after
16 receipt of the consumer's request under this section. The
17 response period prescribed by this subdivision may be
18 extended once by an additional forty-five (45) days when
19 reasonably necessary, taking into account the complexity and
20 number of the consumer's requests, as long as the controller
21 informs the consumer of any such extension within the initial
22 forty-five (45) day response period, along with the reason for
23 the extension.
24 (2) If a controller declines to take action regarding the
25 consumer's request, the controller shall inform the consumer
26 without undue delay, but in any case not later than forty-five
27 (45) days after receipt of the consumer's request under this
28 section, of the justification for declining to take action, and
29 shall provide instructions for how to appeal the decision
30 under subsection (d).
31 (3) Information provided in response to a consumer request
32 shall be provided by a controller free of charge, up to one (1)
33 time annually per consumer. If requests from a consumer are
34 manifestly unfounded, excessive, or repetitive, the controller
35 may charge the consumer a reasonable fee to cover the
36 administrative costs of complying with the request or decline
37 to act on the request. The controller bears the burden of
38 demonstrating the manifestly unfounded, excessive, or
39 repetitive nature of the request.
40 (4) If a controller is unable to authenticate the request using
41 commercially reasonable efforts, the controller shall not be
42 required to comply with a request to initiate an action under
ES 358—LS 7186/DI 101 11
1 this section and may request that the consumer provide
2 additional information reasonably necessary to authenticate
3 the consumer and the consumer's request.
4 (d) A controller shall establish a process for a consumer to
5 appeal, within a reasonable period of time after the consumer's
6 receipt of a decision by the controller under subsection (c)(2), the
7 controller's refusal to take action on a request by the consumer
8 under this section. The appeal process shall be conspicuously
9 available and similar to the process for submitting requests to
10 invoke a right under this section. Not later than sixty (60) days
11 after receipt of an appeal, a controller shall inform the consumer
12 in writing of any action taken or not taken in response to the
13 appeal, including a written explanation of the reasons for the
14 decisions. If the appeal is denied, the controller shall also provide
15 the consumer with an online mechanism, if available, or other
16 method through which the consumer may contact the attorney
17 general to submit a complaint.
18 Chapter 4. Data Controller Responsibilities; Transparency
19 Sec. 1. Except as provided in IC 24-15-7-2, a controller has the
20 following responsibilities:
21 (1) A controller shall limit the collection of personal data to
22 what is adequate, relevant, and reasonably necessary in
23 relation to the purposes for which such data is processed, as
24 disclosed to the consumer.
25 (2) Except as otherwise provided in this article, a controller
26 shall not process personal data for purposes that are neither
27 reasonably necessary for nor compatible with the disclosed
28 purposes for which the personal data is processed, unless the
29 controller obtains the consumer's consent.
30 (3) A controller shall establish, implement, and maintain
31 reasonable administrative, technical, and physical data
32 security practices to protect the confidentiality, integrity, and
33 accessibility of personal data. The data security practices
34 required under this subdivision must be appropriate to the
35 volume and nature of the personal data at issue.
36 (4) A controller shall not process personal data in violation of
37 state and federal laws that prohibit unlawful discrimination
38 against consumers. A controller shall not discriminate against
39 a consumer for exercising any of the consumer rights set forth
40 in this article, including by denying goods or services to the
41 consumer, charging different prices or rates for goods and
42 services, or providing a different level or quality of goods or
ES 358—LS 7186/DI 101 12
1 services to the consumer. However, nothing in this subdivision
2 shall be construed to:
3 (A) require a controller to provide a product or service
4 that requires the personal data of a consumer that the
5 controller does not collect or maintain; or
6 (B) prohibit a controller from offering a different price,
7 rate, level, quality, or selection of goods or services to a
8 consumer, including offering goods or services for no fee,
9 if the consumer has exercised the consumer's right to opt
10 out under IC 24-15-3-1(b)(5) or if the offer is related to a
11 consumer's voluntary participation in a bona fide loyalty,
12 rewards, premium features, discount, or club card
13 program.
14 (5) A controller shall not process sensitive data concerning a
15 consumer without obtaining the consumer's consent, or, in the
16 case of the processing of sensitive data concerning a known
17 child, without processing such data in accordance with the
18 federal Children's Online Privacy Protection Act (15 U.S.C.
19 6501 et seq.).
20 Sec. 2. Any provision of a contract or agreement of any kind
21 that purports to waive or limit in any way a consumer's rights
22 under IC 24-15-3 is contrary to public policy and is void and
23 unenforceable.
24 Sec. 3. A controller shall provide consumers with a reasonably
25 accessible, clear, and meaningful privacy notice that includes:
26 (1) the categories of personal data processed by the controller;
27 (2) the purpose for processing personal data;
28 (3) how consumers may exercise their consumer rights under
29 IC 24-15-3, including how a consumer may appeal a
30 controller's decision with regard to the consumer's request;
31 (4) the categories of personal data that the controller shares
32 with third parties, if any; and
33 (5) the categories of third parties, if any, with whom the
34 controller shares personal data.
35 Sec. 4. If a controller sells a consumer's personal data to third
36 parties or uses a consumer's personal data for targeted advertising,
37 the controller shall clearly and conspicuously disclose such activity,
38 as well as the manner in which a consumer may exercise the right
39 to opt out of such sales or use.
40 Sec. 5. A controller shall establish, and shall describe in a
41 privacy notice provided under section 3 of this chapter, one (1) or
42 more secure and reliable means for consumers to submit a request
ES 358—LS 7186/DI 101 13
1 to exercise their rights under IC 24-15-3. Such means must take
2 into account:
3 (1) the ways in which consumers normally interact with the
4 controller;
5 (2) the need for the secure and reliable communication of such
6 requests; and
7 (3) the ability of the controller to authenticate the identity of
8 the consumer making the request.
9 A controller may not require a consumer to create a new account
10 in order to exercise the consumer's rights under IC 24-15-3 but
11 may require a consumer to use an existing account.
12 Chapter 5. Responsibility According to Role; Controllers and
13 Processors
14 Sec. 1. A processor shall adhere to the instructions of a
15 controller and shall assist the controller in meeting its obligations
16 under this chapter. Such assistance shall include the following:
17 (1) Fulfilling the controller's obligation to respond to
18 consumer requests under IC 24-15-3 by appropriate technical
19 and organizational measures, insofar as this is reasonably
20 practicable, and taking into account the nature of processing
21 and the information available to the processor.
22 (2) Taking into account the nature of processing and the
23 information available to the processor, assisting the controller
24 in meeting the controller's obligations in relation to:
25 (A) the security of processing the personal data; and
26 (B) the notification of a breach of security of the system of
27 the processor under IC 24-4.9;
28 in order to meet the controller's obligations.
29 (3) Providing necessary information to enable the controller
30 to conduct and document data protection assessments under
31 IC 24-15-6.
32 Sec. 2. (a) A contract between a controller and a processor shall
33 govern the processor's data processing procedures with respect to
34 processing performed on behalf of the controller. The contract
35 must be binding and clearly set forth instructions for processing
36 personal data, the nature and purpose of processing, the type of
37 data subject to processing, the duration of processing, and the
38 rights and obligations of both parties. The contract must also
39 include requirements that the processor do the following:
40 (1) Ensure that each individual processing personal data is
41 subject to a duty of confidentiality with respect to the data.
42 (2) At the controller's direction, delete or return all personal
ES 358—LS 7186/DI 101 14
1 data to the controller as requested at the end of the provision
2 of services, unless retention of the personal data is required by
3 law.
4 (3) Upon the reasonable request of the controller, make
5 available to the controller all information in its possession
6 necessary to demonstrate the processor's compliance with the
7 obligations in this chapter.
8 (4) Allow, and cooperate with, reasonable assessments by the
9 controller or the controller's designated assessor.
10 Alternatively, the processor may arrange for a qualified and
11 independent assessor to conduct an assessment of the
12 processor's policies and technical and organizational
13 measures in support of the processor's obligations under this
14 chapter using an appropriate and accepted control standard
15 or framework and assessment procedure for such
16 assessments. The processor shall provide a report of any such
17 assessment to the controller upon request.
18 (5) Subject to subsection (b), engage any subcontractor
19 pursuant to a written contract that requires the subcontractor
20 to meet the obligations of the processor with respect to the
21 personal data.
22 (b) Nothing in this section shall be construed to relieve a
23 controller or a processor from the liabilities imposed on the
24 controller or processor by virtue of its role in the processing
25 relationship.
26 Sec. 3. Determining whether a person is acting as a controller or
27 a processor with respect to a specific processing of data is a fact
28 based determination that depends upon the context in which
29 personal data is processed. A processor that continues to adhere to
30 a controller's instructions with respect to a specific processing of
31 personal data remains a processor.
32 Chapter 6. Data Protection Assessments
33 Sec. 1. (a) The data protection assessment requirements set
34 forth in this chapter apply to processing activities created or
35 generated after December 31, 2024, and are not retroactive to any
36 processing activities created or generated before January 1, 2025.
37 (b) A controller shall conduct and document a data protection
38 assessment of each of the following processing activities involving
39 personal data:
40 (1) The processing of personal data for purposes of targeted
41 advertising.
42 (2) The sale of personal data.
ES 358—LS 7186/DI 101 15
1 (3) The processing of personal data for purposes of profiling,
2 if such profiling presents a reasonably foreseeable risk of:
3 (A) unfair or deceptive treatment of, or unlawful disparate
4 impact on, consumers;
5 (B) financial, physical, or reputational injury to
6 consumers;
7 (C) a physical or other intrusion upon the solitude or
8 seclusion, or the private affairs or concerns, of consumers,
9 if such intrusion would be offensive to a reasonable person;
10 or
11 (D) other substantial injury to consumers.
12 (4) The processing of sensitive data.
13 (5) Any processing activities involving personal data that
14 present a heightened risk of harm to consumers.
15 (c) Data protection assessments conducted under this chapter
16 shall identify and weigh the benefits that may flow, directly and
17 indirectly, from the processing to the controller, the consumer,
18 other stakeholders, and the public against the potential risks to the
19 rights of the consumer associated with such processing, as
20 mitigated by safeguards that can be employed by the controller to
21 reduce such risks. The use of de-identified data and the reasonable
22 expectations of consumers, as well as the context of the processing
23 and the relationship between the controller and the consumer
24 whose personal data will be processed, shall be factored into this
25 assessment by the controller.
26 (d) A single data protection assessment may address a
27 comparable set of processing operations that include similar
28 activities.
29 (e) A data protection assessment conducted by a controller for
30 the purpose of compliance with other laws or regulations may be
31 used to comply with this section if the assessment has a reasonably
32 comparable scope and effect to an assessment conducted under this
33 section.
34 Sec. 2. (a) The attorney general may request, pursuant to a civil
35 investigative demand, that a controller disclose any data protection
36 assessment that is relevant to an investigation conducted by the
37 attorney general. Upon receipt of such a request, the controller
38 shall make the data protection assessment available to the attorney
39 general. Subject to subsection (b), the attorney general may
40 evaluate the data protection assessment for a controller's
41 compliance with the responsibilities set forth in IC 24-15-4.
42 (b) Data protection assessments are confidential and exempt
ES 358—LS 7186/DI 101 16
1 from public inspection and copying under IC 5-14-3-4. The
2 disclosure of a data protection assessment pursuant to a request
3 from the attorney general does not constitute a waiver of
4 attorney-client privilege or work product protection with respect
5 to the assessment and any information contained in the assessment.
6 Chapter 7. Processing De-identified Data or Pseudonymous
7 Data; Exemptions
8 Sec. 1. (a) A controller in possession of de-identified data shall:
9 (1) take reasonable measures to ensure that the data cannot
10 be associated with an individual;
11 (2) publicly commit to maintaining and using de-identified
12 data without attempting to re-identify the data; and
13 (3) contractually obligate any recipients of the de-identified
14 data to comply with all provisions of this chapter.
15 (b) This chapter shall not be construed to require a controller
16 or processor to:
17 (1) re-identify de-identified data or pseudonymous data;
18 (2) maintain data in identifiable form; or
19 (3) collect, obtain, retain, or access any data or technology;
20 in order to be capable of associating an authenticated consumer
21 request with personal data.
22 (c) This chapter shall not be construed to require a controller or
23 processor to comply with a request of a consumer under IC 24-15-3
24 if all of the following conditions are met:
25 (1) The controller is not reasonably capable of associating the
26 request with the personal data or it would be unreasonably
27 burdensome for the controller to associate the request with
28 the personal data.
29 (2) The controller does not use the personal data to recognize
30 or respond to the specific consumer who is the subject of the
31 personal data, or associate the personal data with other
32 personal data about the same specific consumer.
33 (3) The controller does not sell the personal data to any third
34 party or otherwise voluntarily disclose the personal data to
35 any third party other than a processor.
36 Sec. 2. The:
37 (1) rights of a consumer set forth in IC 24-15-3-1(b)(1)
38 through IC 24-15-3-1(b)(5); and
39 (2) responsibilities of a controller under IC 24-15-4-1(1)
40 through IC 24-15-4-1(5);
41 do not apply to pseudonymous data in any case in which the
42 controller is able to demonstrate that any information necessary to
ES 358—LS 7186/DI 101 17
1 identify the consumer is kept separately and is subject to effective
2 technical and organizational controls that prevent the controller
3 from accessing such information.
4 Sec. 3. A controller that discloses pseudonymous data or
5 de-identified data shall exercise reasonable oversight to monitor
6 compliance with any contractual commitments to which the
7 pseudonymous data or de-identified data is subject and shall take
8 appropriate steps to address any breaches of those contractual
9 commitments.
10 Chapter 8. Limitations
11 Sec. 1. (a) This article shall not be construed to restrict a
12 controller's or processor's ability to do any of the following:
13 (1) Comply with federal, state, or local laws, rules, or
14 regulations.
15 (2) Comply with a civil, criminal, or regulatory inquiry,
16 investigation, subpoena, or summons by a federal, state, local,
17 or other governmental authority.
18 (3) Cooperate with law enforcement agencies concerning
19 conduct or activity that the controller or processor reasonably
20 and in good faith believes may violate federal, state, or local
21 laws, rules, or regulations.
22 (4) Investigate, establish, exercise, prepare for, or defend legal
23 claims.
24 (5) Provide a product or service specifically requested by a
25 consumer, perform a contract to which the consumer, or a
26 parent of a child, is a party, including fulfilling the terms of a
27 written warranty, or take steps at the request of the consumer
28 or parent before entering into a contract.
29 (6) Take immediate steps to protect an interest that is
30 essential for the life or physical safety of the consumer or of
31 another individual, if the processing cannot be manifestly
32 based on another legal basis.
33 (7) Prevent, detect, protect against, or respond to security
34 incidents, identity theft, fraud, harassment, malicious or
35 deceptive activities, or any illegal activity, to preserve the
36 integrity or security of systems, or to investigate, report, or
37 prosecute those responsible for any such action.
38 (8) Engage in public or peer reviewed scientific or statistical
39 research that is in the public interest and that adheres to all
40 applicable ethics and privacy laws and is approved,
41 monitored, and governed by an institutional review board, or
42 a similar independent oversight entity, that determines if:
ES 358—LS 7186/DI 101 18
1 (A) the information is likely to provide substantial benefits
2 that do not exclusively accrue to the controller;
3 (B) the expected benefits of the research outweigh the
4 privacy risks; and
5 (C) the controller has implemented reasonable safeguards
6 to mitigate privacy risks associated with research,
7 including any risks associated with re-identification.
8 (9) Assist another controller, processor, or third party with
9 any obligation described in this section.
10 (b) Processing personal data for a purposes expressly identified
11 in subsection (a)(1) through (a)(9) does not by itself make a person
12 a controller with respect to such processing.
13 Sec. 2. The obligations imposed on a controller or a processor
14 under this article do not restrict a controller's or processor's
15 ability to collect, use, or retain data to do the following:
16 (1) Conduct internal research to develop, improve, or repair
17 products, services, or technology.
18 (2) Effectuate a product recall.
19 (3) Identify and repair technical errors that impair existing or
20 intended functionality.
21 (4) Perform internal operations that are:
22 (A) reasonably aligned with the expectations of the
23 consumer;
24 (B) reasonably anticipated based on the consumer's
25 existing relationship with the controller; or
26 (C) otherwise compatible with:
27 (i) processing data in furtherance of the provision of a
28 product or service specifically requested by a consumer,
29 or the parent of a child; or
30 (ii) the performance of a contract to which the consumer
31 is a party.
32 Sec. 3. The obligations imposed on a controller or a processor
33 under this article do not apply if compliance by the controller or
34 processor with this article would violate an evidentiary privilege
35 under Indiana law. This article shall not be construed to prevent
36 a controller or processor from providing, as part of a privileged
37 communication, personal data concerning a consumer to a person
38 covered by an evidentiary privilege under Indiana law.
39 Sec. 4. A controller or processor that discloses personal data to
40 a third party controller or processor in compliance with this article
41 is not in violation of this article if the third party controller or
42 processor that receives and processes the personal data violates
ES 358—LS 7186/DI 101 19
1 this article, as long as, at the time of disclosing the personal data,
2 the disclosing controller or processor did not have actual
3 knowledge that the recipient intended to commit a violation. A
4 third party controller or processor receiving personal data from a
5 controller or processor is likewise not in violation of this article
6 solely because of the transgressions of the controller or processor
7 from which it receives such personal data.
8 Sec. 5. This article:
9 (1) shall not be construed as an obligation imposed on
10 controllers and processors that adversely affects the rights or
11 freedoms of any persons, such as exercising the right of free
12 speech under the First Amendment to the Constitution of the
13 United States; and
14 (2) does not apply to personal data in the context of a purely
15 personal or household activity.
16 Sec. 6. Nothing in this article shall be construed as requiring a
17 controller to disclose trade secrets.
18 Sec. 7. (a) Personal data processed by a controller for a purpose
19 authorized under this chapter may not be processed for any other
20 purpose unless otherwise allowed under this article. Personal data
21 processed by a controller under this chapter may be processed to
22 the extent that such processing is:
23 (1) reasonably necessary and proportionate to a purpose
24 authorized under this chapter; and
25 (2) adequate, relevant, and limited to what is necessary in
26 relation to the specific purpose.
27 (b) Personal data collected, used, or retained under section 2 of
28 this chapter shall, as applicable, take into account the nature and
29 purpose of the collection, use, or retention. Any personal data
30 collected, used, or retained must be subject to reasonable
31 administrative, technical, and physical measures to:
32 (1) protect the confidentiality, integrity, and accessibility of
33 the personal data; and
34 (2) reduce reasonably foreseeable risks of harm to consumers
35 relating to such collection, use, or retention of the personal
36 data.
37 (c) If a controller processes personal data pursuant to an
38 exemption under this chapter, the controller bears the burden of
39 demonstrating that such processing:
40 (1) qualifies for the exemption; and
41 (2) complies with the requirements set forth in this section.
42 Chapter 9. Investigative Authority
ES 358—LS 7186/DI 101 20
1 Sec. 1. Whenever the attorney general has reasonable cause to
2 believe that any person has engaged in, is engaging in, or is about
3 to engage in any violation of this article, the attorney general is
4 empowered to issue a civil investigative demand to investigate the
5 suspected violation.
6 Chapter 10. Enforcement
7 Sec. 1. The attorney general has exclusive authority to enforce
8 the provisions of this article.
9 Sec. 2. (a) Before initiating an action under this chapter, the
10 attorney general shall provide a controller or processor thirty (30)
11 days written notice identifying the specific provisions of this article
12 that the attorney general alleges have been or are being violated.
13 If within the thirty (30) day period set forth in this section, the
14 controller or processor:
15 (1) cures the alleged violation; and
16 (2) provides the attorney general an express written statement
17 that:
18 (A) the alleged violation has been cured; and
19 (B) actions have been taken to ensure no further such
20 violations will occur;
21 the attorney general shall not initiate an action against the
22 controller or processor.
23 (b) If a controller or processor:
24 (1) continues to violate this article following the thirty (30)
25 day period set forth in subsection (a); or
26 (2) breaches an express written statement provided to the
27 attorney general under subsection (a)(2);
28 the attorney general may initiate an action in the name of the state
29 and may seek an injunction to restrain any violations of this article
30 and a civil penalty not to exceed seven thousand five hundred
31 dollars ($7,500) for each violation under this article.
32 (c) The attorney general may recover reasonable expenses
33 incurred in investigating and preparing the case, including
34 attorney fees, in any action initiated under this chapter.
35 Sec. 3. Nothing in this article shall be construed as providing the
36 basis for a private right of action for violations of this article or
37 any other law.
38 Chapter 11. Preemption; Other Laws
39 Sec. 1. This article supersedes and preempts all rules,
40 regulations, codes, ordinances, and other laws adopted by a city,
41 county, city and county, municipality, or local agency regarding
42 the processing of personal data by controllers or processors.
ES 358—LS 7186/DI 101 21
1 Sec. 2. Any reference to federal, state, or local law or statute in
2 this article includes any accompanying rules, regulations, or
3 exemptions.
ES 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.
_____
SENATE MOTION
Madam President: I move that Senate Bill 358 be amended to read
as follows:
Replace the effective date in SECTION 1 with "[EFFECTIVE
JANUARY 1, 2025]".
Page 2, line 8, delete "HIPPA;" and insert "HIPAA;".
Page 2, line 9, delete "or".
Page 2, line 10, delete "education." and insert "education; or
(6) public utility (as defined in IC 8-1-2-1(a)) or service
company affiliated with a public utility (as defined in
IC 8-1-2-1(a)). For purposes of this subdivision, "service
company" means an associate company within a holding
company system organized specifically for the purpose of
providing goods or services to a public utility (as defined in
IC 8-1-2-1(a)) in the same holding company system.".
Page 2, line 13, delete "HIPPA." and insert "HIPAA.".
Page 2, line 40, delete "HIPPA." and insert "HIPAA.".
Page 3, line 5, delete "HIPPA," and insert "HIPAA,".
Page 3, line 8, delete "HIPPA." and insert "HIPAA.".
Page 5, delete line 42.
Page 6, delete line 1.
Page 6, line 2, delete "14." and insert "13.".
Page 6, line 4, delete "15." and insert "14.".
ES 358—LS 7186/DI 101 23
Page 6, line 6, delete "16." and insert "15.".
Page 6, line 9, delete "17." and insert "16.".
Page 6, line 11, delete "18." and insert "17.".
Page 6, line 13, delete "19." and insert "18.".
Page 6, line 16, delete "20." and insert "19.".
Page 6, line 22, delete "21." and insert "20.".
Page 6, line 27, delete "in".
Page 6, line 28, delete "connection with,".
Page 6, line 28, delete "to," and insert "to".
Page 6, line 31, delete "22." and insert "21.".
Page 6, line 36, delete "23." and insert "22.".
Page 6, line 38, delete "24." and insert "23.".
Page 7, line 1, delete "25." and insert "24.".
Page 7, line 3, delete "26." and insert "25.".
Page 7, line 12, delete "27." and insert "26.".
Page 7, line 23, delete "28." and insert "27.".
Page 8, line 1, delete "29." and insert "28.".
Page 8, line 10, delete "30." and insert "29.".
Page 8, line 11, delete "31." and insert "30.".
Page 8, line 25, delete "32." and insert "31.".
Page 8, line 32, delete "33." and insert "32.".
Page 8, line 36, after "A" insert "known".
Page 8, line 39, after "the" insert "known".
Page 12, line 6, after "a" insert "known".
Page 12, line 11, delete "consumer right's" and insert "consumer's
rights".
Page 14, line 25, delete "2023," and insert "2024,".
Page 14, line 26, delete "2024." and insert "2025.".
Page 15, line 33, delete "IC 5-14-13-4." and insert "IC 5-14-3-4.".
Page 19, line 2, delete "United States" and insert "Constitution of
the United States;".
Page 19, line 3, delete "Constitution;"
Page 20, line 9, after "further" insert "such".
Page 20, delete lines 28 through 42.
Page 21, line 1, delete "12." and insert "11.".
(Reference is to SB 358 as printed January 28, 2022.)
BROWN L
ES 358—LS 7186/DI 101 24
COMMITTEE REPORT
Mr. Speaker: Your Committee on Commerce, Small Business and
Economic Development, to which was referred Senate Bill 358, has
had the same under consideration and begs leave to report the same
back to the House with the recommendation that said bill be amended
as follows:
Page 1, delete lines 14 through 15, begin a new paragraph and
insert:
"(b) This article does not apply to any of the following:
(1) Any of the following:
(A) A body, authority, board, bureau, commission, district,
or agency of the state or of any political subdivision of the
state.
(B) A third party under contract with an entity described
in clause (A), when acting on behalf of the entity. This
clause does exempt data held or created by third parties
outside of the scope of the contract with the entity.
(2) Any financial institutions and affiliates, or data subject to
Title V of the federal Gramm-Leach-Bliley Act (15 U.S.C.
6801 et seq.).
(3) Any covered entity or business associate governed by the
privacy, security, and breach notification rules issued by the
United States Department of Health and Human Services (45
CFR Parts 160 and 164) pursuant to HIPAA.
(4) Any nonprofit organization.
(5) Any institution of higher education.
(6) Any public utility (as defined in IC 8-1-2-1(a)) or service
company affiliated with a public utility (as defined in
IC 8-1-2-1(a)). For purposes of this subdivision, "service
company" means an associate company within a holding
company system organized specifically for the purpose of
providing goods or services to a public utility (as defined in
IC 8-1-2-1(a)) in the same holding company system.".
Page 2, delete lines 1 through 17.
Page 8, line 22, delete "websites" and insert "web sites".
Page 8, line 24, delete "website" and insert "web site".
Page 11, line 21, delete "to" and insert "for".
Page 16, line 13, delete "technology, in" and insert "technology;
in order to be capable of associating an authenticated consumer
request with personal data.".
Page 16, delete lines 14 through 15.
Page 16, line 32, delete "IC 24-15-3-1(b)(4)" and insert "IC
ES 358—LS 7186/DI 101 25
24-15-3-1(b)(5)".
Page 16, line 34, delete "IC 24-15-4-1(4)" and insert "IC
24-15-4-1(5)".
Page 20, line 18, delete "chapter" and insert "article".
and when so amended that said bill do pass.
(Reference is to SB 358 as reprinted February 1, 2022.)
MORRIS
Committee Vote: yeas 12, nays 0.
ES 358—LS 7186/DI 101