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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.

Visual Implications
Transfers from EEA Controller to EEA Processor: Controller (EEA)→ Processor (EEA) → Affiliated Processor (US)
  • Background. Company Z-1 and Company Z-2 are corporate affiliates under common ownership or control, but are separate legal entities. Data is being directly sent from Controller A in the EEA to Processor Z-1; Processor Z-1 onward transfers the information to Processor Z-2 (its sub-processor). Company A has contracted only with Processor Z-1 in the EEA.
  • 1st transfer: The GDPR requires that an Article 28 data processing agreement (DPA) be completed between Company A and Company Z-1. Note that under the GDPR, Company Z-1 is not permitted to transfer information outside of the EEA without the authorization of Company A.1 As a result, the DPA should at a minimum include a general authorization to transfer information outside of the EEA; it might also identify the specific country in which Company Z-2 is located (i.e., the U.S.). Arguably no Chapter V cross border transfer mechanism is needed as Company A is not a “data exporter” as that term is defined within EDPB guidance and the SCCs, and the GDPR does not require a safeguard mechanism for data that is transferred from a company in the EEA to another company in the EEA.
  • 2nd transfer: SCC Module 3. Although Company Z-1 and Company Z-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 US.2 In this case because both entities are processors, SCC Module 3 should be selected.
  • Transfer Impact Assessments. Section 14 of the SCCs require that Company Z-1 and Company Z-2 document a transfer impact assessment of United States law to determine whether either party has reason to believe that the laws and practices of the United States that apply to the personal data transferred prevent Company Z-2 from fulfilling its obligations under the SCCs. Note that under the Article DPA entered into between Company A and Company Z-1, Company Z-1 is required to “make available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article.”3 As a result, Controller A may argue that they have a right to receive a copy of the TIA as part of an audit or assessment of Company Z-1.

1  EDPB, Guidelines 07/2020 on the concepts of controller and processor in the GDPR, Version 1.0, at paras. 116 and 117.

2 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.

3  GDPR, Art. 28(3)(h).

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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 focuses his practice on the technology industry. 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

Carsten Kociok focuses his practice on the technology industry. 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, franchising, outsourcing and technology transactions. This includes all aspects of e-money and payments law, financial services law, data protection and data security regulations, money laundering obligations as well as marketing, unfair competition, consumer protection and general contract law.

Prior to joining the firm, Carsten worked at Olswang for eight years and in the Capital Transaction Practice Group of an international law firm in New York.

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.