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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 Description and Implications
Transfers from a European Data Subject: Data Subject→Controller (US)→Controller (US)
  • The EDPB has taken the position that a data subject “cannot be considered a controller or processor,”[1] and, as a result, the restrictions on cross-border data transfers that apply to controllers and processors do not apply to data subjects.[2] As a result no mechanism is needed to transfer data from the data subject to Controller B.
  • If Company B is subject to the GDPR (e.g., it markets products or services to individuals in the EEA):
    • Company B is required to comply with the cross-border transfer restrictions in GDPR Chapter V when transferring personal data “to a third country.”[3]
    • The European Commission has suggested that transfers to another company “in the same [non-EEA] country,” should utilize a safeguard mechanism such as the SCCs.[4]
    • The European Commission has made conflicting statements regarding the applicability of the New SCCs to exporters that are subject to the GDPR. On the one hand, the European Commission implied in Article 1 of its implementing decision that all exporters subject to the GDPR can use the SCC.[5]That would suggest that Company B could utilize the New SCCs when it exports data to Company C.On the other hand, the European Commission suggested in Recital 7 of the implementing decision that an exporter subject to Art. 3(2) might not be able to utilize the New SCCs.
    • The European Commission implied that an importer subject to Art. 3(2) also might not be permitted to use the New SCCs.[6]
    • The European Commission has indicated that they are developing a specific set of SCCs to be utilized by companies subject to Art. 3(2) (possibly either Company B or Company C).[7]
  • If Company B is not subject to the GDPR, then no additional steps need to be taken in order to transfer data to Company C.

[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 n.10.

[2] The transfer of data from Europe to the United States arguably constitutes “processing” by the data subject and, therefore, is not subject to the GDPR at all, as the regulations do not apply to processing done by a “natural person in the course of a purely personal or household activity. GDPR, Art. 2(2)(c).

[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. 10.

[4] New SCC Module 1 at 8.7 (similar provisions in Module 2 and Module 3). The position that a transfer between companies in the same non-EEA country requires a safeguard also accords with Article 44 of the GDPR which requires that “any transfer of personal data . . . after transfer to a third country” must take place pursuant to the restrictions in Chapter V of the GDPR.

[5] Commission Implementing Decision of 4.6.2021 at Art. 1 (stating that the clauses can be used by any exporter “subject to” the GDPR).

[6] Commission Implementing Decision of 4.6.2021 at Recital 7.

[7] 54th Plenary Meeting dated 14 Sept. 2021 at § 2.1.

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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.