EdLaw
Tennessee — Data Accessibility, Transparency and Accountability Act (Tenn. Code Ann. §§49-1-701 to 49-1-708)
Tennessee's student-data statute: the data inventory and dictionary, the department's data-governance and security duties, the restrictions on collecting and disclosing student data, and the rules governing transfer to third parties.
§49-1-701. Short title
This part shall be known and may be cited as the “Data Accessibility, Transparency and Accountability Act.”
§49-1-702. Part definitions
As used in this part:
(2) “Biometric record” means a record of one (1) or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual;
(3) “Covered information” means personally identifiable information or material, or information that is linked to personally identifiable information or material, in any media or format that is not publicly available and is:
- (A) Created by or provided to an operator by a student, or the student's parent or legal guardian, in the course of the student's, parent's, or legal guardian's use of the operator's site, service, or application for K-12 school purposes;
- (B) Created by or provided to an operator by an employee or agent of a K-12 school or an LEA for K-12 school purposes; or
- (C) Gathered by an operator through the operation of its site, service, or application for K-12 school purposes and personally identifies a student;
(5) “De-identified data” means a student dataset in which parent and student identifying information, including the personal identification number, has been removed;
(8) “Interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions;
(9) “K-12 school” means a school that offers any of the grades kindergarten through twelve (K-12) and is operated by an LEA;
(10) “K-12 school purposes” means purposes that are directed by or that customarily take place at the direction of a K-12 school, teacher, or LEA or that aid in the administration of school activities, including, but not limited to, instruction in the classroom or at home, administrative activities, and collaboration among students, school personnel, or parents, or are otherwise for the use and benefit of the school;
(11) “Operator” means, to the extent that it is operating in this capacity, the operator of an internet website, online service, online application, or mobile application with actual knowledge that the site, service, or application is used primarily for K-12 school purposes and is designed and marketed for K-12 school purposes;
(12) “Persistent unique identifier” means a unique reference number used as an identifier in computer software that is stored across different usage sessions;
(13) “Personal identification number” means the unique student identifier assigned to a student under § 49-6-5101;
- (A) “Student data” means data collected or reported at the individual student level that is included in a student’s educational record;
- (B) “Student data” includes:
- (i) State and national assessment results, including information on untested public school students;
- (ii) Course taking and completion, credits earned and other transcript information;
- (iii) Course grades and grade point average;
- (iv) Date of birth, grade level and expected graduation date or graduation cohort;
- (v) Degree, diploma, credential attainment and other school exit information such as receipt of a high school equivalency credential approved by the state board of education and drop-out data;
- (vi) Attendance and mobility;
- (vii) Data required to calculate the federal four-year adjusted cohort graduation rate, including sufficient exit and drop-out information;
- (viii) Discipline reports limited to objective information sufficient to produce the federal Title IV annual incident report;
- (ix) Remediation;
- (x) Special education data; and
- (xi) Demographic data and program participation information; and
- (C) Unless included in a student’s educational record, “student data” does not include:
(16) “Targeted advertising” means presenting advertisements to a student where advertisements are selected based on information obtained or inferred over time from that student's online behavior, usage of applications, or covered information. “Targeted advertising” does not include advertising to a student at an online location based upon that student's current visit to that location, or in response to that student's request for information or feedback, without the retention of that student's online activities or requests over time for the purpose of targeting subsequent advertisements; and
(17) “Teacher data” means personal summative and evaluation scores, the access to which is limited to the department, LEA administrators, local boards of education or those with direct supervisory authority who require such access to perform their assigned duties. Nothing in this part shall restrict the availability of information pursuant to § 49-1-606.
§49-1-703. Duties of department
The department of education shall:
(1) Create, publish and make publicly available a data inventory and dictionary or index of data elements with definitions of individual student data fields currently in the student data system along with the purpose or reason for inclusion in the data system;
(2) Develop, publish and make publicly available policies and procedures to comply with FERPA, § 10-7-504 and other relevant privacy laws and policies. These policies and procedures shall, at a minimum, require that:
- (A) Access to student and de-identified data in the student data system is restricted to:
- (i) The authorized staff of the department and the department's contractors who require access to perform their assigned duties;
- (ii) LEA administrators, teachers, school personnel and the LEA's contractors who require access to perform their assigned duties;
- (iii) Students and their parents; provided, however, that a student or the student's parents may only access the student's individual data;
- (iv) The authorized staff of other state agencies as permitted by law; provided, however, that within sixty (60) days of providing such access, the department shall provide notice of the release to the state board, the education committee of the senate, and the education administration committee of the house of representatives, and post such notice on the department's website;
- (v) Parties conducting research for or on behalf of the department or an LEA; provided, that such access is granted in compliance with FERPA and other relevant state and federal privacy laws and policies and that the department shall provide notice of the release to the state board, the education committee of the senate, and the education administration committee of the house of representatives, and post such notice on the department's website;
- (vi) Appropriate entities in compliance with a lawfully issued subpoena or court order; or
- (vii) Appropriate officials in connection with an interagency audit or evaluation of a federal or state supported education program;
- (B) The department uses only aggregate data in public reports or in response to public record requests in accordance with subdivision (3);
- (C)
- (i) The commissioner develops criteria for the approval of research and data requests from state and local agencies, the general assembly, researchers and the public; provided, however, that:
- (a) Unless otherwise approved by the state board or permitted in this part, student data maintained by the department shall remain confidential; and
- (b) Unless otherwise permitted in this part or approved by the state board to release student or de-identified data in specific instances, the department may only use aggregate data in the release of data in response to research and data requests;
- (ii) Unless otherwise approved in this part or by the state board, the department shall not transfer student or de-identified data deemed confidential under subdivision (2)(C)(i)(a) to any federal agency or other organization or entity outside the state, except when:
- (a) A student transfers out of state or an LEA seeks help with locating an out-of-state transfer;
- (b) A student leaves the state to attend an out-of-state institution of higher education or training program;
- (c) A student registers for or takes a national or multistate assessment;
- (d) A student voluntarily participates in a program for which such data transfer is a condition or requirement of participation;
- (e) The department enters into a contract that governs databases, assessments, special education or instructional supports with an out-of-state vendor; or
- (f) A student is classified as “migrant” for federal reporting purposes; and
- (i) The commissioner develops criteria for the approval of research and data requests from state and local agencies, the general assembly, researchers and the public; provided, however, that:
- (D) Students and parents are notified of their rights under federal and state law;
- (A) Guidelines for authorizing access to the teacher data system and to individual teacher data including guidelines for authentication of authorized access;
- (B) Guidelines for authorizing access to the student data system and to individual student data including guidelines for authentication of authorized access;
- (C) Privacy compliance standards;
- (D) Privacy and security audits;
- (E) Breach planning, notification and procedures; and
- (F) Data retention and disposition policies;
(4) Ensure routine and ongoing compliance by the department with FERPA, § 10-7-504, other relevant privacy laws and policies, and the privacy and security policies and procedures developed under the authority of this part, including the performance of compliance audits;
(5) Ensure that any contracts that govern databases, assessments or instructional supports that include student or de-identified data and are outsourced to private vendors include express provisions that safeguard privacy and security and include penalties for noncompliance; and
- (A) Any new student data fields included in the state student data system;
- (B) Changes to existing data collections required for any reason, including changes to federal reporting requirements made by the United States department of education;
- (C) Any exceptions granted by the state board in the past year regarding the release or out-of-state transfer of student or de-identified data accompanied by an explanation of each exception; and
- (D) The results of any and all privacy compliance and security audits completed in the past year. Notifications regarding privacy compliance and security audits shall not include any information that would itself pose a security threat to the state or local student information systems or to the secure transmission of data between state and local systems by exposing vulnerabilities.
§49-1-704. Right of parents and guardians to inspect their children's educational records — Model student records policy for LEAs
(a) Parents and guardians have the right to inspect and review their children's education records maintained by the school.
(b) Parents and guardians have the right to request student data specific to their children's educational records.
(c) LEAs shall provide parents or guardians with a copy of their children's educational records upon request.
- (1) The department shall develop a model student records policy for LEAs that requires an LEA to:
- (A) Annually notify parents and guardians of their right to request student information;
- (B) Ensure security when providing student data to parents or guardians;
- (C) Ensure student data is provided only to authorized individuals;
- (D) Set the timeframe within which record requests must be provided; and
- (E) Consider implementation of a plan to allow parents and guardians to view online, download, and transmit data specific to their children's educational records.
- (2) [Deleted by 2022 amendment.]
§49-1-705. LEAs and schools not to collect certain individual student data
LEAs and schools shall not collect individual student data on:
§49-1-706. Written consent required prior to collection of certain individual student biometric data
(a) Unless explicitly mandated by state or federal law, a state agency or educational institution shall obtain written consent from parents or students, in the case of students eighteen (18) years of age or older, before collecting any individual student biometric data, student data relative to analysis of facial expressions, EEG brain wave patterns, skin conductance, galvanic skin response, heart-rate variability, pulse, blood volume, posture, and eye-tracking.
(b) No state agency or educational institution shall pursue or accept any grant whether from the federal government or any private entity that requires collecting or reporting information in violation of subsection (a).
(c) No state or national student assessment shall be adopted or administered in this state that requires collecting or reporting information in violation of subsection (a).
§49-1-707. Status of collection of student data existing on July 1, 2014
Any collection of student data by the department existing on July 1, 2014, shall not be considered a new student data collection in accordance with § 49-1-703(6)(A).
§49-1-708. Student online personal protection act
- (1) Engage in targeted advertising on the operator's site, service, or application, or target advertising on any other site, service, or application if the targeting of the advertising is based on any information, including covered information and persistent unique identifiers, that the operator has acquired because of the use of that operator's site, service, or application for K-12 school purposes;
- (2) Use information, including persistent unique identifiers, created or gathered by the operator's site, service, or application, to amass a profile about a student except in furtherance of K-12 school purposes. As used in this subdivision (a)(2) and subdivision (d)(2), “amass a profile” does not include the collection and retention of account information that remains under the control of the student, the student's parent or guardian, or the K-12 school;
- (3) Sell or rent a student's information, including covered information. This subdivision (a)(3) does not apply to the purchase, merger, or other type of acquisition of an operator by another entity, if the operator or successor entity complies with this section regarding previously acquired student information; or
- (4) Except as otherwise provided in subsection (d), disclose covered information unless the disclosure is made:
- (A) In furtherance of the K-12 school purpose of the site, service, or application, if the recipient of the covered information disclosed under this subdivision (a)(4)(A) does not further disclose the information unless done to allow or improve operability and functionality of the operator's site, service, or application;
- (B) To ensure legal and regulatory compliance or protect against liability;
- (C) To respond to or participate in the judicial process;
- (D) To protect the safety or integrity of users of the site or others or the security of the site, service, or application;
- (E) For a school, educational, or employment purpose requested by the student or the student's parent or guardian; provided, that the information is not used or further disclosed for any other purpose; or
- (F) To a third party, if the operator contractually prohibits the third party from using any covered information for any purpose other than providing the contracted service to or on behalf of the operator, prohibits the third party from disclosing any covered information provided by the operator with subsequent third parties, and requires the third party to implement and maintain reasonable security procedures and practices.
(b) Nothing in subsection (a) shall prohibit the operator's use of information for maintaining, developing, supporting, improving, or diagnosing the operator's site, service, or application.
- (1) Implement and maintain reasonable security procedures and practices appropriate to the nature of the covered information, designed to protect that covered information from unauthorized access, destruction, use, modification, or disclosure; and
- (2) Delete within a reasonable time period a student's covered information if the K-12 school or LEA requests deletion of covered information under the control of the K-12 school or LEA, unless a student or parent or legal guardian consents to the maintenance of the covered information.
- (1) If federal or state law requires the operator to disclose the information, and the operator complies with the requirements of federal or state law in protecting and disclosing that information;
- (2) For legitimate research purposes as required by state or federal law and subject to the restrictions under applicable state or federal law or as allowed by state or federal law and under the direction of a K-12 school, LEA, or the department of education, if covered information is not used for advertising or to amass a profile on the student for purposes other than K-12 school purposes; or
- (3) To the department, an LEA, or a K-12 school for K-12 school purposes, as permitted by state or federal law.
- (1) Using covered information to improve educational products if that information is not associated with an identified student within the operator's site, service, or application or other sites, services, or applications owned by the operator;
- (2) Using covered information that is not associated with an identified student to demonstrate the effectiveness of the operator's products or services, including in its marketing;
- (3) Sharing covered information that is not associated with an identified student for the development and improvement of educational sites, services, or applications;
- (4) Using recommendation engines to recommend to a student:
- (A) Additional content relating to an educational, other learning, or employment opportunity purpose within an online site, service, or application if the recommendation is not determined in whole or in part by payment or other consideration from a third party; or
- (B) Additional services relating to an educational, other learning, or employment opportunity purpose within an online site, service, or application if the recommendation is not determined in whole or in part by payment or other consideration from a third party; or
- (5) Responding to a student's request for information or for feedback without the information or response being determined in whole or in part by payment or other consideration from a third party.
- (1) Limit the authority of a law enforcement agency to obtain any content or information from an operator as authorized by law or under a court order;
- (2) Limit the ability of an operator to use student data, including covered information, for adaptive learning or customized student learning purposes;
- (3) Apply to general audience internet websites, general audience online services, general audience online applications, or general audience mobile applications, even if login credentials created for an operator's site, service, or application may be used to access those general audience sites, services, or applications;
- (4) Limit service providers from providing internet connectivity to schools or students and their families;
- (5) Prohibit an operator of a website, online service, online application, or mobile application from marketing educational products directly to parents if the marketing did not result from the use of covered information obtained by the operator through the provision of services covered under this section;
- (6) Impose a duty upon a provider of an electronic store, gateway, marketplace, or other means of purchasing or downloading software or applications to review or enforce compliance with this section on those applications or software;
- (7) Impose a duty upon a provider of an interactive computer service to review or enforce compliance with this section by third-party content providers; or
- (8) Prohibit students from downloading, exporting, transferring, saving, or maintaining their own student data or documents.
- (1) Any violation of this section shall be construed to constitute an unfair or deceptive act or practice affecting the conduct of trade or commerce under the Tennessee Consumer Protection Act of 1977, compiled in title 47, chapter 18, part 1, and shall be enforced solely by the attorney general and reporter in the attorney general's discretion. The attorney general and reporter shall have the authority to conduct civil investigations and bring civil actions, as provided in § 8-6-109 and title 8, chapter 6, part 4; and §§ 47-18-106 and 47-18-108.
- (2) In an action brought by the attorney general under this chapter, the court may award or impose any relief available under the Tennessee Consumer Protection Act of 1977.
Sources
- Primary: Tennessee Code Annotated §§49-1-701 to 49-1-708 — published for the State by LexisNexis, official public access. Not machine-readable: it serves a JavaScript bootstrap with no statute text.
- Text reproduced from (third party):
- Justia — Tenn. Code Ann. §49-1-701 (reader transport)
- Justia — Tenn. Code Ann. §49-1-702 (reader transport)
- Justia — Tenn. Code Ann. §49-1-703 (reader transport)
- Justia — Tenn. Code Ann. §49-1-704 (reader transport)
- Justia — Tenn. Code Ann. §49-1-705 (reader transport)
- Justia — Tenn. Code Ann. §49-1-706 (reader transport)
- Justia — Tenn. Code Ann. §49-1-707 (reader transport)
- Justia — Tenn. Code Ann. §49-1-708 (reader transport)