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Cross-Border Transfer Master Class: Does a US Controller Need to Use the SCCs When It Receives Data Directly from a European?

No.

Companies are allowed to transfer personal data outside the European Economic Area (EEA) if they are (1) transferring data to an entity within a country recognized by the European Commission as ensuring an adequate level of protection or (2) they have put in place a European Commission-approved mechanism (a “safeguard”) that imposes many of the substantive provisions found within the GDPR.1

The United States is not currently recognized as an “adequate” country. As a result, controllers in the EEA are typically required to utilize a safeguard when transferring personal information to the United States. The most common safeguard utilized is referred to as the “Standard Contractual Clauses,” or “SCCs” – a template contract that was approved by the European Commission in June of 2021.The SCCs are actually comprised of four different “modules” that are designed to be used (separately or in unison) to account for the following different types of transfers:

Module

Exporter

Importer

Module 1

Controller

Controller

Module 2

Controller

Processor

Module 3

Processor

Processor

Module 4

Processor

Controller

Notwithstanding that the SCCs are designed to be used with relatively little customization (i.e., the material terms of the SCCs cannot be modified without jeopardizing their status as an approved safeguard), significant confusion exists as to when certain modules of the SCC should be utilized. For example, some attorneys believe that a company that receives personal data directly from a data subject in the EEA has to somehow utilize the SCCs to facilitate the transfer. The following provides a visual summary explaining how a controller in the United States that receives personal data from someone in the EEA can typically do so without relying upon the SCCs.

Data Subject à Controller (US)

how a controller in the United States that receives personal data from someone in the EEA can typically do so without relying upon the SCCs.
  • The EDPB has taken the position that a data subject “cannot be considered a controller or processor.”[3] As a result, the restrictions on cross-border data transfers that apply to controllers and processors do not apply to data subjects.  In addition, the transfer of data from the EEA to the United States arguably constitutes “processing” by the data subject and, therefore, is not subject to the GDPR at all, as the Regulation does not apply to processing done by a “natural person in the course of a purely personal or household activity.”[4]
  • The net result is that a controller in the United States that receives personal information directly from a data subject does not need to utilize the SCCs, or any other safeguards.

 

Companies are also permitted to transfer personal data outside of the EEA if the transfer is subject to one of the exceptions or “derogations” found within Article 49 of the GDPR.

These are sometimes referred to as the “new SCCs” to distinguish them from the “old SCCs” – previous templates that were approved by the European Commission under the Privacy Directive, and that can no longer be utilized as an approved transfer mechanism in new contracts.

3 EDPB, Guidelines 05/2021 on the Interplay between the application of Article 3 and the provisions on international transfers as per Chapter V of the GDPR at n.10.

See GDPR, Article 2(2)(c).

 

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 347
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About this Author

David A. Zetoony Privacy Attorney Greenberg Traurig
Shareholder

David Zetoony, Co-Chair of the firm's U.S. Data, Privacy and Cybersecurity Practice, focuses on helping businesses navigate data privacy and cyber security laws from a practical standpoint. David has helped hundreds of companies establish and maintain ongoing privacy and security programs, and he has defended corporate privacy and security practices in investigations initiated by the Federal Trade Commission, and other data privacy and security regulatory agencies around the world, as well as in class action litigation. 

David receives regular recognitions from clients and peers for...

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