International data transfers that avoid fines and injunctions require: Attention to numerous local laws and regulations, Cooperation with regulators, Proper initial collection, and Agreements with processors.
I.Data Protection Challenges Facing a Hypothetical Company and Concepts of EU Data Protection II.Transfers of Data from the EU using Different Methods A.EU Safe Harbor B.Standard Contractual Clauses C.Binding Corporate Rules III.Canada IV.Australia V.Enforcement Actions
Hypothetical Corporation Company XYZ Publicly traded Multinational corporation Headquartered in the US Sells goods online to customers around the world
EU Data Protection Directive Applies to all 27 EU Member States Requires transposition to local law Protects fundamental right to privacy Comprehensive, not sectoral Prohibits transfers to third countries with inadequate protections Data Protection Authorities Article 29 Working Party
What law applies? Each Member State shall apply the national provisions it adopts pursuant to this Directive to the processing of personal data where the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State.
Concepts Data Controller: entity that determines the purposes and means of processing Processor: processes personal data on behalf of the controller Processing: any operation performed upon personal data
Concepts, Cont. Personal Data: any information relating to a data subject Data Subjects: identified or identifiable natural person Sensitive Personal Data: racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, health or sex life. Establishment: the effective and real exercise of activity through stable arrangements
Obligations of Data Controllers Provide Notice to Individuals about – the identity of the controller – the purposes and means of processing – the recipients or the types of recipients of the data Notify the DPAs Enter into Article 17 Agreements with Processors
Legal Bases for Processing Unambiguous consent Necessary for: – Contract – Compliance with legal obligation – Protection of the vital interests – Performance of task carried out in public interest – *Purposes of legitimate interest of the controller v. interests of data subject*
Adequacy for Transfers General Rule: Transfers to 3 rd Countries with inadequate protections prohibited – Adequacy presumed for EU Member States, Canada, Australia, Argentina, Switzerland, Israel, US Safe Harbor Exceptions: – Unambiguous consent – Standard Contractual Clauses – Binding Corporate Rules
Safe Harbor Agreement between US DoC and European Commission Voluntary Participation by US organizations that abide by the 7 Principles and 15 FAQs Organization must be regulated by FTC or DoT – Excludes: Banks and other Financial Institutions Non-Profits
Standard Contractual Clauses Standard contracts that have been adopted by the European Commission for the transfer of data to countries that do not offer an adequate level of protection The contracts cannot be modified in any way, except that the parties can add additional commercial provisions
Standard Contractual Clauses – Cont. Controller to Processor – Data exporter: the processing and transfer has and will continue to be carried out in accordance with applicable law, instruct data importer to process only on exporter’s behalf – Data importer: processes the data only on behalf of exporter and at exporter’s instructions
Standard Contractual Clauses – Cont. Controller to Controller – Data exporter: data collected, processed and transferred in accordance with applicable law, used reasonable efforts to determine the data importer satisfies the legal obligations in the Clauses – Data importer: appropriate technical and organizational measures to protect data, process only for purposes in the Clauses, subject to audit by data exporter
Standard Contractual Clauses – Cont. Processor to Processor – Not yet established but under consideration – Would permit data processor in the EU to transfer data to a sub-processor in a country that does not offer an adequate level of protection
Binding Corporate Rules Corporate privacy rules that protect the processing and transfer of personal data within a global organization Purpose: Enable multi-national organizations to transfer data to intra-company locations that do not have adequate level of protection Process: Create BCR framework, complete and submit application, select lead DPA, lead DPA will liaise with other DPAs for approval
Binding Corporate Rules – Cont. Advantages: – Company wide solution – Flexible in form – Creates image that company respects privacy Disadvantages: – Only apply to intra-company transfers – No guidance on what to include in BCRs – Time consuming
Specific Data Transfer Issues HR Data Transfer – Presumed that employee cannot willingly consent Sensitive Personal Information – race, ethnic origin, sexual orientation, political opinions, religious beliefs, trade union membership – General Rule: cannot be processed Cross-Border E-Discovery – conflict of laws
Canada PIPEDA – Personal Information Protection and Electronic Documents Act Uses an organization - organization approach – Requires finding of “comparable level of protection” – Organizations are held accountable for the protection of personal information transferred – Not based on “adequacy” as in the EU
Canada, Cont. Cross border transfer: Organization is responsible for personal information in its possession or custody, including information that has been transferred to a 3 rd party for processing. The organization shall use contractual or other means to provide a comparable level of protection while the information is being processed by a 3 rd party.
Australia Privacy Act 9 National Privacy Principles: – Collection – Openness – Use and disclosure – Identifier – Access and correction – Anonymity – Information quality and security – Sensitive information – Trans-border data flow
Australia, Cont. Trans-border data transfer permitted if: – Recipient is subject to law, binding scheme or contract which upholds substantially similar principles – Consent – Necessary for performance of contract between individual and organization or contract concluded in the interest of the individual between the organization and a 3 rd party
International Transfers, Local Consequences French court invalidates McDonald’s Sarbanes Oxley Hotline on data protection grounds French DPA fines Tyco €30,000 Spanish DPA audits Columbian call center Canadian court orders Privacy Commissioner to investigate American company
Conclusion International data transfers that avoid fines and injunctions require: Proper initial collection with attention to numerous local laws and regulations, Agreements with processors with attention to security, and Cooperation with regulators with attention to picking the right methods.