Transfers from EEA Controller to non-EEA Processor: Controller A (EEA)→Processor Z (US) →Processor X (US) →Controller A (EEA)

Thursday, February 24, 2022

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.

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Summary

Controller A (EEA)→Processor Z (US) →Processor X (US) →Controller A (EEA)

1st Transfer: SCC Module 2. Initial cross-border transfer from EEA to United States utilizes the SCC Module 2 designed for transfers from a controller to a non-EEA processor (First SCC).
2nd Transfer: 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). Transfers to another company “in the same [non-EEA] country,” should utilize a safeguard mechanism such as the SCCs.^[1] Note that the parties could alternatively decide to enter into a single SCC between Company A, Company Z, and Company X that integrated a Module 2 SCC (as to Company A and Company Z) and a Module 2 SCC (as to Company A and X). Clause 9 of the First SCC would require Company Z to obtain authorization from Company A to utilize Company X.
3rd Transfer: No Mechanism. Neither the GDPR nor U.S. law requires a company that transmits data from the United States to the EEA to utilize a safeguard mechanism.
Transfer Impact Assessments. Section 14 of the SCCs require all parties (Company A, Company Z, and Company X) to document a transfer impact assessment of United States law to determine whether any party has reason to believe that the laws and practices of the United States that apply to the personal data transferred prevent Company Z and/or Company X from fulfilling their obligations under the SCCs.
Law enforcement request policy. Section 15 of the SCCs require the data importers (Company Z and Company X) to take specific steps in the event they receive a request from a public authority for access to personal data. As a result, Company Z and Company X might consider creating a written law enforcement request policy.

FOOTNOTE

[1] See New SCC Module 1 at 8.7. The position that a transfer between companies in the same non-EEA country requires a safeguard also accords with Article 44 of the GDPR which requires that “any transfer of personal data . . . after transfer to a third country” must take place pursuant to the restrictions in Chapter V of the GDPR.