TCI Whitepaper. Data Transfer to the USA. What will happen after the ECJ judgment regarding Safe Harbor?

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1 TCI Whitepaper Data Transfer to the USA What will happen after the ECJ judgment regarding Safe Harbor? (Version 1.0; as of October 7, 2015) 1. What is the Safe Harbor Agreement? Under German and European data protection law, the transfer of personal data to the USA is only admissible subject to very strict requirements. The USA are considered to be an unsafe third country, the laws of which do not provide to data subjects an adequate level of protection which is comparable to European data protection standards. To facilitate the transfer of data to the USA, the EU Commission entered into the Safe Harbor Agreement with the US Department of Commerce in US enterprises can accede to the Safe Harbor Agreement in the form of a self-certification by submitting to the duties and principles under data protection law provided therein and by making a public commitment to comply with them. The list of the acceding enterprises can be retrieved at Previously, a US enterprise which had acceded to the Safe Harbor Agreement was considered to be safe under data protection law, and the transfer of personal data to acceding enterprises was thereby possible, at least in principle (even though additional requirements and details had to be complied with in an individual case, in particular, in the view of the German data protection authorities). 2. What did the ECJ rule on? In its judgment of October 6, 2015 (Case C-362/14), the European Court of Justice declared that the decision by the EU Commission 2000/520/EC dated July 26, 2000, according to which the Safe Harbor Agreement ensures an adequate level of protection, is invalid. The ECJ holds that the Safe Harbor Agreement only applies to acceding enterprises, but not to US authorities. According to the ECJ, requirements of national security, public interest and law enforcement requirements of the USA prevail over the safe harbor scheme, so that US enterprises are bound to disregard the safe harbor scheme where the scheme conflicts with such requirements. While the ECJ does not explicitly state in its judgment that no adequate level of Page 1 of 8

2 protection with regard to personal data exists in the USA, the ECJ states that US public authorities are able to access the personal data transferred from the EU to the USA and process such data in a manner in excess of the scope which is strictly necessary and proportionate to the protection of national security. According to the ECJ, a regulation which authorizes public authorities to access the contents of electronic communications on a generalized basis and without any differentiation violates the fundamental right to respect for private life. Therefore, in spite of the safe harbor scheme, US public authorities are able to encroach upon rights of personality of the data subjects whose data are transferred to an extent which is disproportionate and thus infringes fundamental rights of EU citizens. 3. What contractual relationships / contractors / subcontractors are affected? Basically, all contractual relationships under which personal data are transferred to the USA directly or indirectly are affected, for example: Cloud providers (e.g., Salesforce, Google Apps, Dropbox, Microsoft 365) Hosting/infrastructure providers (e.g., Amazon AWS, Microsoft Azure) Website analysis and advertising networks, social media plug-ins (as IP addresses are currently also considered to be personal data!), e.g., Google Analytics, Google Adwords, Facebook Retargeting. In particular, constellations in which data are stored in EU computer centers but in which the contractor reserves a right of access by employees or subcontractors from the USA, for example, for maintenance or development purposes, are also affected. 4. How can I now lawfully transfer data to the USA? In addition to the safe harbor scheme, German and European data protection law provides for additional possibilities for the legalization of data transfers to the USA: a. Prior consent by the data subjects A transfer of data to unsafe third countries is admissible if all data subjects (i.e., all persons whose data are being transferred) declare their express prior consent. That way is not realizable in practice, as it will almost never be possible to actually reach all data subjects, who must then also be willing to declare their prior consent. In addition, the prior consent would have to be given in an informed manner, i.e., all actual and potential data recipients in the USA would have to be named, and comprehensive instructions would have to be given in relation to the risks involved in the transfer. A prior consent by employees is also problematic, as such consent will, in the view of the regulatory authorities, normally not be given voluntarily. A prior consent is also Page 2 of 8

3 revocable at any time, and this practically excludes data processing by enterprises for that reason alone. b. Conclusion of contracts in accordance with the EU standard contractual clauses In the last few years, the EU Commission has published standard contractual clauses for the transfer of data to recipients in unsafe third countries. If the parties use those (unchanged!) standard contractual clauses in a contract, the transfer of data to recipients in the USA has also been admissible on that basis. US enterprises are, however, reluctant to conclude contracts on the basis of the EU standard contractual clauses, in particular, as they will thereby submit to the laws and data protection supervision of Germany (or the respective EU Member State of the contracting party). c. Implementation of Binding Corporate Rules (BCR) Note: International corporate groups can submit to binding corporate rules regarding data protection on the basis of European data protection law (so-called Binding Corporate Rules ). Thereby, an adequate level of data protection can be created for all group companies, and the transfer of data to group companies in the USA would thus basically be admissible. However, the data protection authorities of all EU countries in which group companies have their seat must consent to the specific BCR. Therefore, the administrative expense is substantial, and the agreement on BCR requires a lengthy lead time as a result of the required approval. In its judgment of October 6, 2015, the European Court of Justice did not make a statement regarding the effectiveness of the EU standard contractual clauses and BCR. The substantiation by the ECJ regarding the invalidity of the safe harbor scheme, however, basically also relates to the EU standard contractual clauses and BCR: In such cases, US public authorities can also have unlimited access to personal data regardless of the contractual arrangements. On the other hand, the EU standard contractual clauses and BCR follow a different legal approach, as they actually apply to the transfer of data to a recipient country which does not ensure an adequate data protection level. Therefore, in a press release, the EU Commission expressly refers to the continuing possibility of a use of the EU standard contractual clauses and BCR. It remains to be seen what position the data protection authorities will take in that regard, and whether they will no longer assume the existence of an adequate level of data protection despite the agreement of EU standard contractual clauses, so that the transfer of data to the USA will generally be inadmissible up to a revision of the law. Page 3 of 8

4 5. What must be done now? The following steps present themselves: Stocktaking: It should be identified which contractual relationships / partners / subcontractors are affected at all, whether o because they are US enterprises to which data are transferred directly, or o because they are contractual parties in the EU which reserve the right to forward data to subcontractors in the USA (this will regularly be the case, for example, in relation to contracts with the European subsidiaries of Microsoft, Facebook, Google, IBM, Amazon etc.). After identifying which contractual relationships are affected, they should be prioritized subject to their importance to the enterprise. If the transfer of data is based on a safe harbor scheme in the above cases, it will be inadmissible in accordance with the decisions by the ECJ. In such cases, the aforementioned alternatives could be considered, for example, the conclusion of contracts on the basis of the EU standard contractual clauses, or also the rather long-term approach of the use of BCR. When using service providers with a seat in the US who had previously been safe harborcertified, alternative guarantees should be requested. If possible, it should be documented that the enterprise endeavors to seek alternatives for a lawful transfer of data. In any event, the positions of the German regulatory authorities should be observed. 6. What do the German data protection authorities do? Are measures and fines threatening? a. Current state So far (as of October 6, 2015), the official comments by the German regulatory authorities have largely been limited to the welcoming of the judgment. The regulatory authorities have announced that they will coordinate their actions at a national and European level in the next few days. It can, however, also be derived from a first comment by the Hamburg data protection commissioner that public authority is also going to review the instruments of standard contractual clauses and BCR. That statement reads as follows: It must be reviewed whether, and to what extent, the transfer of data to the USA must be suspended. This also applies if transfers are based on other legal bases such as standard contractual clauses or Binding Corporate Rules. ( Page 4 of 8

5 On the other hand, a first comment by the First Vice President of the EU Commission, Frans Timmermanns, and the EU Commissioner for Justice, Consumers and Gender Equality, Vera Jourová, reads as follows: In the meantime, transatlantic data flows between companies can continue using other mechanisms for international transfers of personal data available under EU data protection law. The EU data protection rules provide for several other mechanisms that provide safeguards for international transfers of personal data, for instance through standard data protection clauses in contracts between companies exchanging data across the Atlantic or binding corporate rules for transfers within a corporate group. Therefore, the EU Commission obviously takes the view that transfers of data will continue to be admissible on the basis of standard contractual clauses and BCR. Possibly, transitional periods for a conversion to lawful contractual models will be granted, provided that such models will continue to exist in the first place in the view of the regulatory authorities in consideration of the judgment by the ECJ. Transitional periods might also be granted up to the entry into force of a new Safe Harbor Agreement, which is currently under negotiation. It cannot, however, be excluded that different positions will be taken at the EU level (EU Commission) and at a national level (German data protection authorities) in relation to that problem, which would result in considerable legal uncertainty. b. Current risk of measures and sanctions Given the current stage of legal uncertainty, it cannot be expected that the German data protection authorities will, in the short term, take measures against, or impose fines on, business enterprises which have previously transferred personal data to the USA on the basis of the safe harbor scheme and continue to do so. c. Instruments of the regulatory authorities It cannot, however, be excluded in the medium term that the data protection authorities will enforce the prohibition of transfers against business enterprises. To do this, the regulatory authorities basically have the following instruments: Requests for information On-site inspections Injunctions Prohibition orders Imposition of fines Institution of criminal proceedings Page 5 of 8

6 Subject to the further development, business enterprises should be prepared for corresponding measures and procedural steps. 7. Employment law: Effects of the judgment by the ECJ of October 6, 2015 (Case C-362/14) in co-determined business enterprises in terms of collective bargaining law The transfer of employee data within (international) corporate groups is common practice and meets an equally common practical requirement. In co-determined business enterprises, one of the tasks of the works council is the supervision of the compliance with data protection law. Therefore, the transfer of employee data to other EU countries is mostly governed by works agreements, as works agreements are considered to be a permissive rule within the meaning of section 4, subsection 1 German Federal Data Protection Act owing to their normative effect. To the extent that transfers of data from German group companies to group companies (in most cases, to the parent company) with a seat in the USA are concerned, such works agreements often contain the reservation that the respective US enterprises must establish an adequate data protection standard by acceding to the Safe Harbor Agreement, or by submitting to its principles in a binding manner. According to the judgment by the ECJ of October 6, 2015 (Case C-362/14), the safe harbor principles do not, however, ensure an adequate level of protection within the meaning of Directive 95/46/EC. Although the judgment has no direct effect on the contents, or the legal existence, of works agreements which refer to the safe harbor scheme, the question arises whether, and to what extent, such works agreements can still be considered to be a permission within the meaning of section 4, subsection 1 German Federal Data Protection Act, after their subject matter has, as it were, ceased to exist. While works agreements may (although that view is disputed) fall short of the minimum data protection standard laid down in the German Federal Data Protection Act, the rights of personality of the affected employees as a whole must be adequately considered. A reference to the safe harbor scheme is now no longer sufficient. It is now (more than ever) the responsibility of the business enterprises, as well as the works councils, to examine whether, and to what extent, an adequate level of protection can be ensured within the corporate group. Whether or not corporate groups must now expect terminations (for good cause?) or rescissions of existing works agreements by works councils on a large scale remains to be seen. This is at least not recommendable; if an after-effect does not exist, either, as a consequence, a situation of regulatory vacancy would arise, which is not desirable and in which the rights of personality of the affected employees cannot be protected less than ever. Page 6 of 8

7 It appears to be more advisable that the parties in the enterprise should now, after the judgment by the ECJ, quickly deal with the question as to how existing works agreements can, and must, be adapted. According to the decisions by the German Federal Labor Court, a claim to negotiations regarding an adaptation can also be enforced in the absence of a termination if the basis of the contract ceases to exist. 8. Conclusion All further steps to be taken primarily depend on the position regarding the problem which will be taken by the German data protection authorities, in particular, whether they: will continue to accept alternatives such as an agreement on the basis of the EU standard contractual clauses (unchanged, including the previous model clauses) or BCR, will show other solutions, grant transitional periods, or enforce the statutory prohibition of transfers across all areas. The speedy conclusion of a new Safe Harbor Agreement, which would permit the transfer of data to the USA, might also be possible. We will keep you up-to-date regarding the further development and the potentially required measures and will periodically update this Whitepaper. Should you have any questions, please contact us any time. Page 7 of 8

8 Authors and contacts: TCI Rechtsanwälte Berlin: Carsten Gerlach, Specialist lawyer for IT law; TCI Rechtsanwälte Mainz: Stephan Schmidt, Specialist lawyer for IT law; Christian Welkenbach, Specialist lawyer for IT law, Specialist lawyer for IP law; TCI Rechtsanwälte Munich: Dr. Michael Karger, Specialist lawyer for IT law, Specialist lawyer for administrative law; Dr. Thomas Stögmüller, LL.M. (Berkeley), Specialist lawyer for IT law; Harald Krüger, Specialist lawyer for employment law; Dr. Truiken Heydn; More information: and Page 8 of 8

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