Sarah Branam Mehmet MunurDino Tsibouris [email protected] [email protected] [email protected]@[email protected]@Tsibouris.com.

Sarah Branam Mehmet Munur Dino Tsibouris [email protected] [email protected] [email protected]

International Data Transfers: Strategic Considerations for Sending or Receiving Data

Internationally

© Copyright 2009 Tsibouris & Associates, LLC 88 E. Broad Ste. 1560, Columbus, OH 43215

© Copyright 2009 OCLC Online Computer Library Center, Inc.6565 Kilgour Place, Dublin, Ohio 43017-3395 USA

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 MethodsA. EU Safe HarborB. Standard Contractual ClausesC. Binding Corporate Rules

III. CanadaIV. AustraliaV. Enforcement Actions

Hypothetical Corporation

Company XYZ• Publicly traded • Multinational corporation • Headquartered in the US• Sells goods online to customers around the

world

`

Source: Google Maps

Source: Google Maps

Source: Google Maps

Source: Google Maps

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 3rd 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

Safe Harbor, Cont.• Principles:

– Notice – Choice – Onward Transfer– Security– Data Integrity– Access– Enforcement

Onward Transfer• Mapping Data Flows• Ensuring Adequate Notice • Cloud Computing• Audit Rights• Negotiation of Onward Transfer Agreements

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

CanadaPIPEDA – 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.10 Principles:

– Accountability – Safeguards– Identifying Purposes – Openness– Consent – Individual Access– Limiting Collection – Accuracy– Challenging Compliance– Limiting Use, Disclosure, and Retention

Canada, Cont.Cross border transfer:• Organization is responsible for personal

information in its possession or custody, including information that has been transferred to a 3rd 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 3rd party.

AustraliaPrivacy Act9 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 3rd 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.

Questions & Answers Sarah Branam Mehmet Munur Dino Tsibouris [email protected] [email protected] [email protected]

© Copyright 2009 Tsibouris & Associates, LLC 88 E. Broad Ste. 1560, Columbus, OH 43215

© Copyright 2009 OCLC Online Computer Library Center, Inc.6565 Kilgour Place, Dublin, Ohio 43017-3395 USA