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  • Background. Company B-1 and Company B-2 are corporate affiliates who are under common ownership or control but are separate legal entities. Company B-2 is the processor of Company B-1. While data is being directly sent from Company A in Europe to Company B-2, Company B-2 is not acting as the processor of Company A; instead Company B-1 is utilizing Company B-2 as its processor and has directed Company A to directly transmit information to Company B-2. The solid line indicates the data flow; dashed line indicates the contractual relationships.
  • No mechanism needed for transfer from Company A to Company B-1. The GDPR does not require a safeguard mechanism for data transferred from a company in the EEA to another company in the EEA. In the visual depiction, while data is not being physically transferred from Company A to Company B-1, Company B-1 might be classified as a “controller” because it determines the purpose and means of processing the data while it is in the possession of Company B-2.
  • SCC Module 2. Although Company B-1 and Company B-2 may be under common ownership or control, as separate legal entities they are required to put into place a safeguard when transferring data from the EEA to the United States.1 While data has not physically been sent from Company B-1 to Company B-2, it has been sent at the direction of Company B-1. As a result, the parties might consider putting in place an SCC Module 2.
  • A separate SCC is not needed (and may be inappropriate) between Company A and Company B-2. While the GDPR requires that “any transfer of personal data” has an adequate safeguard, in this situation the transfer of data from Company A to Company B-2 is arguably being done at the direction and under the control of Company B-1.2 Furthermore, if Company B-2 is not functioning as the processor of Company A (i.e., it is not taking instructions from Company A) the use of an SCC Module 2 would be inappropriate as it would incorrectly classify Company B-2 as Company A’s processor, and would assign to Company B-2 processor-oriented obligations that Company B-2 cannot fulfill.
  • Transfer Impact Assessments. Section 14 of the SCCs requires that Company B-1 and Company B-2 document a transfer impact assessment of United States law to determine whether either party has reason to believe the laws and practices of the United States that apply to the personal data transferred prevent Company B-2 from fulfilling its obligations under the SCCs.
  • Law enforcement request policy. Section 15 of the SCCs requires Company B-2 to take specific steps in the event it receives a request from a public authority for access to personal data. As a result, Company B-2 might consider creating a law enforcement request policy for handling requests from public authorities.

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 para. 16.

2 GDPR, Art. 44.

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Photo of David A. Zetoony David A. Zetoony

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

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.

Photo of Carsten A. Kociok Carsten A. Kociok

Carsten Kociok is a data privacy expert with a wide-ranging practice representing domestic and international clients on complex legal issues. He advises clients across all industries on a wide variety of complex matters, including international data transfers, data privacy compliance, litigation, cybersecurity and

Carsten Kociok is a data privacy expert with a wide-ranging practice representing domestic and international clients on complex legal issues. He advises clients across all industries on a wide variety of complex matters, including international data transfers, data privacy compliance, litigation, cybersecurity and data breach response. Carsten is a recognized expert on the EU General Data Protection Regulation (GDPR) and other EU and German data privacy laws and a leading specialist in the field of financial technology laws.

Photo of Andrea C. Maciejewski Andrea C. Maciejewski

Andrea C. Maciejewski designs and implements privacy and security programs for clients of all sizes – from Fortune 500s to start ups – and in all sectors, including digital entertainment, marketing, online education, retail, and consumer goods. Andrea helps companies navigate the intricacies

Andrea C. Maciejewski designs and implements privacy and security programs for clients of all sizes – from Fortune 500s to start ups – and in all sectors, including digital entertainment, marketing, online education, retail, and consumer goods. Andrea helps companies navigate the intricacies of multi-jurisdictional compliance programs as well as compliance with sector-specific data privacy and security laws. Andrea offers clients practical legal counsel, striving to understand the underlying business model and provide strategies that manage costs and risks, while attempting to maintain the businesses operations.

Her practice includes international data privacy laws and regulations, including the General Data Protection Regulation (“GDPR”) and China’s Personal Information Protection Law (“PIPL”), as well as U.S. federal and state data privacy laws, such as the Children’s Online Privacy Protection Act (“COPPA”), the Family Educational Rights and Privacy Act (“FERPA”), and the California Consumer Privacy Act (“CCPA”). Some of the specialized documents Andrea drafts include data processing addendums, intracompany agreements, cross-border transfer mechanisms, privacy policies, privacy impact assessments, and data inventories. She has experience in U.S. and multi-national record retention practices, and frequently counsels on updating those practices for compliance with new privacy laws.

Additionally, Andrea provides expert counsel on data concerns unique to video games, eSports, and mobile gaming.