June 28, 2022

Volume XII, Number 179

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June 27, 2022

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Transfers from EEA Controller to non-EEA Processor: Controller A (EEA) → Processor Z-1 (US), Processor Z-2 (Non-EEA), Processor Z-3 (Non-EEA), etc.

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 of 2021.

Overview of situation.  Company A in the EEA retains Company Z-1 in the US to process personal data.  Company Z-1 intends to transmit the personal data to corporate affiliates in other countries throughout the world that are also not considered to have adequate data protection laws (i.e., Company Z-2 and Company Z-3).  There are two main strategies for how the transfer could be structured.

Option 1

Visual

Summary

  • 1st Transfer: SCC Module 2. The initial cross-border transfer from EEA to the United States could utilize the SCC Module 2 designed for transfers from a controller to a non-EEA processor (First SCC).

  • 2nd and 3rd Transfers: SCC Module 3. Pursuant to Section 8.7 of the First SCC, all subsequent onward transfers to non-adequate jurisdictions must also utilize the SCCs (appropriate module). While these could take the form of two separate documents, they might also take the form of a single intragroup agreement that incorporates the SCC Module 3 (Second SCCs).

  • U.S. Transfer Impact Assessment. Section 14 of the First SCC requires Company A and Company Z-1 to document a transfer impact assessment of the laws of the United States to determine whether either party has reason to believe that U.S. laws and practices prevent Company Z-1 from fulfilling its obligations under the SCCs.

  • Other Transfer Impact Assessments. Section 14 of the Second SCCs require Companies Z-1, Z-2, and Z-3 to create a transfer impact assessment of the laws in which Companies Z-2 and Z-3 operate. It is unclear whether Company A must participate in this process.

  • Law enforcement request policy. Section 15 of the SCCs require the data importers (Companies Z-1, Z-2, and Z-3) to take specific steps in the event that they receive a request from a public authority for access to personal data.

Option 2

Visual

Summary

  • 1st, 2nd, and 3rd Transfer: SCC Module 2.  The parties could enter into a single SCC Module 2 designed for transfers from a controller to a non-EEA processor, which would list Company Z-1, Company Z-2, and Company Z-3 each as separate data importers (First SCC).

  • Transfer Impact Assessments.  Section 14 of the First SCC would require Company A to document a transfer impact assessment with each of the data importers (Company Z-1, Z-2, and Z-3) with regard to their respective countries to determine whether Company A, or whether each of the respective importers, has a reason to believe that the laws of their respective jurisdictions would prevent them from fulfilling their obligations under the First SCC.

  • Law enforcement request policy.  Section 15 of the First SCC requires the data importers (Companies Z-1, Z-2, and Z-3) to take specific steps in the event that they receive a request from a public authority for access to personal data.

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XII, Number 61
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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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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,...

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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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