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Volume XII, Number 180

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Transfers from EEA Controller to EEA Processor: Controller (EEA) Processor (EEA) → Employee of Processor (non-EEA)

The following is part of Greenberg Traurig’s ongoing series analyzing cross-border data transfers in light of the new Standard Contractual Clauses approved by the European Commission in June 2021.

Visual Implications
                
  • Background. Company Z is a European legal entity that does not have a legal presence in Country Q. Company Z has an employee that works from Country Q (e.g., a remote worker or a travelling employee).
  • Transfer 1: No mechanism need
  • ed for transfer from Company A to Company Z. The GDPR does not require a safeguard mechanism for data transferred from a company in the EEA to another company in the EEA. Note that Company Z would be directly subject to the GDPR, and, as a result, data received would be subject to all GDPR requirements that apply to processors even in the absence of a SCC.
  • Transfer 2: No mechanism needed for transfer from Company Z to its employee outside of the EEA. The EDPB has suggested that when a company transmits personal data to an employee located outside of the EEA, the transmission does not constitute a “transfer” of personal information for purposes of Chapter V of the GDPR because the data has not been sent to a separate controller or processor.[1] While the EDPB provided, as an example, the use-case where an employee travels for work to India where he remotely accesses personal data from the EEA, the EDPB has not provided any indication that its rationale would not apply to other remote-work situations such as where an employee resides in a non-EEA country, or where the remote employee downloads personal data (as opposed to remotely accesses such data).
  • Transfer Impact Assessments. A formal transfer impact assessment is not required by contract if neither Company A nor Company Z signed SCCs. Nonetheless, the EDPB has suggested that a controller (Company A) is “accountable for [its] processing activities” which include assessing risks “to conduct or proceed with a specific processing operation in a third country although there is no ‘transfer’ situation.”[2] As a result, Company A and/or Company Z might consider conducting a TIA to analyze various risks that may result from the transmission of data to an employee in Country Q.
  • Law enforcement request policy. If no SCCs are signed, neither Company A nor Company Z would be directly subject to Section 15 of the SCCs that require specific steps if a company receives a request from a public authority for access to personal data. Nonetheless, the EDPB has suggested that a controller (Company A) is “accountable for [their] processing activities” which include assessing risks “to conduct or proceed with a specific processing operation in a third country although there is no ‘transfer’ situation.”[3] As a result, Company A might expect that Company Z create a law enforcement request policy to mitigate risks surrounding law enforcement requests that Company Z might receive from Country Q.

FOOTNOTES

[1] 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 paras. 14, 15.

[2] 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 para. 17.

[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 para. 17.

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XII, Number 45
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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...

303.685.7425
Carsten Kociok, Greenberg Traurig Law Firm, Germany, Cybersecurity and Technology, Finance Litigation Attorney
Counsel

Carsten Kociok focuses his practice on the technology, media and telecommunications industries. He has broad experience in the areas of Internet, information technology, electronic and mobile payments and new media, as well as regulatory and data protection law issues.

Carsten advises national and international companies from the Internet, payments and technology industries on the commercial and regulatory side of their business, in particular in the areas of e-commerce and e-business, electronic and mobile payments, service distribution,...

490-30700-171119
Andrea C. Maciejewski Data Privacy Lawyer Greenberg Traurig
Associate

Andrea C. Maciejewski advises clients on compliance with local and international data privacy regulations including the GDPR, CCPA, COPPA, CAN-SPAM , TCPA, and state biometric laws. She guides clients on data breach response and privacy policies.

 

+1 303.572.6500
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