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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
Controller (EEA) Processor (EEA) → Employee of Processor (non-EEA)
  • Background. Company Z is a European legal entity that does not have a legal presence in Country Q. Company Z has an employee that works from Country Q (e.g., a remote worker or a travelling employee).
  • Transfer 1: No mechanism needed for transfer from Company A to Company Z. The GDPR does not require a safeguard mechanism for data transferred from a company in the EEA to another company in the EEA. Note that Company Z would be directly subject to the GDPR, and, as a result, data received would be subject to all GDPR requirements that apply to processors even in the absence of a SCC.
  • Transfer 2: No mechanism needed for transfer from Company Z to its employee outside of the EEA. The EDPB has suggested that when a company transmits personal data to an employee located outside of the EEA, the transmission does not constitute a “transfer” of personal information for purposes of Chapter V of the GDPR because the data has not been sent to a separate controller or processor.[1] While the EDPB provided, as an example, the use-case where an employee travels for work to India where he remotely accesses personal data from the EEA, the EDPB has not provided any indication that its rationale would not apply to other remote-work situations such as where an employee resides in a non-EEA country, or where the remote employee downloads personal data (as opposed to remotely accesses such data).
  • Transfer Impact Assessments. A formal transfer impact assessment is not required by contract if neither Company A nor Company Z signed SCCs. Nonetheless, the EDPB has suggested that a controller (Company A) is “accountable for [its] processing activities” which include assessing risks “to conduct or proceed with a specific processing operation in a third country although there is no ‘transfer’ situation.”[2] As a result, Company A and/or Company Z might consider conducting a TIA to analyze various risks that may result from the transmission of data to an employee in Country Q.
  • Law enforcement request policy. If no SCCs are signed, neither Company A nor Company Z would be directly subject to Section 15 of the SCCs that require specific steps if a company receives a request from a public authority for access to personal data. Nonetheless, the EDPB has suggested that a controller (Company A) is “accountable for [their] processing activities” which include assessing risks “to conduct or proceed with a specific processing operation in a third country although there is no ‘transfer’ situation.”[3] As a result, Company A might expect that Company Z create a law enforcement request policy to mitigate risks surrounding law enforcement requests that Company Z might receive from Country Q.

[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 paras. 14, 15.

[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. 17.

[3]  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. 17.

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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.