Tag: Data Transfer

Microsoft reacts on EDPB’s data transfer recommendations

24. November 2020

Microsoft (“MS”) is among the first companies to react to the European Data Protection Board’s data transfer recommendations(our article), as the tech giant announced in a blog post on November 19th. MS calls these additional safeguards “Defending Your Data” and will immediately start implementing them to contracts with public sector and enterprise customers.

In light of the Schrems II ruling by the Court of Justice of the European Union (“CJEU”) on November 17th (our article), the EDPB issued recommendations, on how to transfer data into non-EEA countries in accordance with the GDPR. The recommendations lay out a six-step plan on how to assess whether a data transfer is up to GDPR standards or not. These steps include mapping all data transfer, assessing a third countries legislation, assessing the tool used for transferring data and adding supplementary measures to that tool. Among the latter is a list of technical, organizational, and contractual measures to be implemented to ensure the effectiveness of the tool.

Julie Brill, Corporate Vice President for Global Privacy and Regulatory Affairs and Chief Privacy Officer at Microsoft, issued the statement in which she declares MS to be the first company responding to the EDPB’s guidance. These safeguards include an obligation for MS to challenge all government requests for public sector or enterprise customer data, where it has a lawful basis for doing so; to try and redirect data requests; and to notify the customer promptly if legally allowed, about any data request by an authority, concerning that customer. This was one of the main ETDB recommendations and also included in a draft for new Standard Contractual Clauses published by the European Commission on November 12th. MS announces to monetary compensate customers, whose personal data has to be disclosed in response to government requests.  These changes are additions to the SCC’s MS is using ever since Schrems II. Which include (as MS states) data encrypted to a high standard during transition and storage, transparency regarding government access requests to data (“U.S. National Security Orders Report” dating back to 2011; “Law Enforcement Requests Report“) .

Recently European authorities have been criticizing MS and especially its Microsoft 365 (“MS 365”) (formerly Office 365) tools for not being GDPR compliant. In July 2019 the Ministry of Justice in the Netherlands issued a Data Protection Impact Assessment (DPIA), warning authorities not to use Office 365 ProPlus, Windows 10 Enterprise, as well as Office Online and Mobile, since they do not comply with GDPR standards. The European Data Protection Supervisor issued a warning in July 2020 stating, the use of MS 365 by EU authorities and contracts between EU institutions and MS do not comply with the GDPR. Also, the German Data Security Congress (“GDSC”) issued a statement in October, in which it declared MS 365 as not being compliant with the GDPR. The GDSC is a board made up of the regional data security authorities of each 16 states and the national data security authority. This declaration was reached by a narrow vote of 9 to 8. Some of the 8 regional authorities later even issued a press release explaining why they voted against the declaration. They criticized a missing involvement and hearing of MS during the process, the GDSC’s use of MS’ Online Service Terms and Data Processing Addendum dating back to January 2020 and the declaration for being too undifferentiated.

Some of the German data protection authorities opposing the GDSC’s statement were quick in welcoming the new developments in a joint press release. Although they stress the main issues in data transfer from the EU to the U.S. still were not solved. Especially the CJEU main reserves regarding the mass monitoring of data streams by U.S. intelligence agencies (such as the NSA) are hard to prevent and make up for. Still, they announced the GDSC would resume its talks with MS before the end of 2020.

This quick reaction to the EDPB recommendations should bring some ease into the discussion surrounding MS’ GDPR compliance. It will most likely help MS case, especially with the German authorities and might even lead to a prompt resolution in a conflict regarding tools that are omnipresent at workplaces all over the globe.

 

European Commission issues draft on Standard Contractual Clauses

18. November 2020

A day after the European Data Protection Board (EDPB) issued its recommendations on supplementary measures, on November 12th the European Commission issued a draft on implementing (new) Standard Contractual Clauses (SCC) for data transfers to non-EU countries (third countries). The draft is open for feedback until December 10th, 2020, and includes a 12-month transition period during which companies are to implement the new SCC. These SCC are supposed to assist controllers and processors in transferring personal data from an EU-country to a third-country implementing measures that guarantee GDPR-standards and regarding the Court of Justice of the European Union’s (CJEU) “Schrems II” ruling.

The Annex includes modular clauses suitable for four different scenarios of data transfer. These scenarios are: (1) Controller-to-controller-transfer; (2) Controller-to-processor-transfer; (3) Processor-processor-transfer; (4) Processor-to-controller-transfer. Newly implemented in these SCC are the latter two scenarios. Since the clauses in the Annex are modular, they can be mixed and matched into a contract fitting the situation at hand. Furthermore, more than two parties can adhere to the SCC and the modular approach even allows for additional parties to accede later on.

The Potential of government access to personal data is especially addressed since this was a main issue following the “Schrems II” ruling. Potential concerns are met by implementing clauses that address, how the data importer must react when laws of the third country impinge his ability to comply with the contract (especially the SCC) and how he must react in case of government interference.  Said measures include notifying the data exporter and the data subject of any government interference, such as- legally binding requests of access to personal data; and if possible sharing further information on these requests (on a regular basis), documenting them and challenging them legally. Termination clauses are added, in case the data importer cannot comply anymore, e.g. because of changes in the third country’s law.

Further clauses regard matters such as data security, transparency, accuracy and onwards transfer of personal data. Issues that have all been tackled in the older SCC but are update now.

EDPB issues guidance on data transfers following Schrems II

17. November 2020

Following the recent judgment C-311/18 (Schrems II) by the Court of Justice of the European Union (CJEU), on November 11th the European Data Protection Board (EDPB) published “Recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data”. These measures are to be considered when assessing the transfer of personal data to countries outside of the European Economic Area (EEA)(so-called third countries). These recommendations are subject to public consultation until the end of November. Complementing these recommendations, the EDPB published “Recommendations on the European Essential Guarantees for surveillance measures”. Added together both recommendations are guidelines to assess sufficient measures to meet standards of the General Data Protection Regulation (GDPR), even if data is transferred to a country lacking protection comparable to that of the GDPR.

The EDPB highlights a six steps plan to follow when checking whether a data transfer to a third country meets the standards set forth by the GDPR.

The first step is to map all transfers of personal data undertaken. Especially transfers into a third country. The transferred data must be adequate, relevant and limited to what is necessary in relation to the purpose. A major factor to consider is the storage of data in clouds. Furthermore, onwards transfer made by processors should be included. In a second step, the transfer tool used needs to be verified and matched to those is listed in Chapter V GDPR. The next step is assessing if anything in the law or practice of the third country can impinge on the effectiveness of the safeguards of the transfer tool. The before mentioned Recommendations on European Essential Guarantees are supposed to help to evaluate a third countries laws, regarding the access of data by public authorities for the purpose of surveillance.

If the conclusion is, that the third countries legislation impinges on the effectiveness of the Article 46 GDPR tool the next step is, identifying supplementary measures that are necessary to bring the level of protection of the data transfer up to EU Standards (or at least equivalence) and adopting these. Recommendations for such measures are listed in annex 2 of the EDPB Schrems II Recommendations. They may be of contractual, technical, or organizational nature. In Annex 2 the EDPB mentions seven technical cases they found and evaluates them. Five were deemed to be scenarios for which effective measures could be found. These are

1. Data storage in a third country, that does not require access to the data in the clear.
2. Transfer of pseudonymized data.
3. Encrypted data merely transiting third countries.
4. Transfer of data to by law specially protected recipients.
5. Split or multi-party processing.

Maybe even more relevant are the two scenarios the EDPB found no effective measures for and therefore deemed to not be compliant with GDPR standards.:

6. Transfer of data in the clear (to cloud services or other processors)
7. Remote access (from third countries) to data in the clear, for business purposes. Such as HR.

These two scenarios are frequently used in practice. Still, the EDPB recommends not to execute these transfers anymore.
Examples of contractual measures are the obligation to implement necessary technical measures, measures regarding transparency (requested) access by government authorities and measures to be taken against such requests. Accompanying this the European Commission published a draft regarding standard contractual clauses for transferring personal data to non-EU countries. Organizational measures such as internal policies and responsibilities regarding government interventions.

The last two steps are undertaking the formal procedural steps to adapt supplementary measures required and re-evaluating the former steps in appropriate intervals.

Even though these recommendations are not (yet) binding, companies should take a further look at these recommendations and check if their data transfers comply.

 

 

Health data transfered to Google, Amazon and Facebook

18. November 2019

Websites, spezialized on health topics transfer information of website users to Google, Amazon and Facebook, as the Financial Times reports.

The transferred information are obtained through cookies and include medical symtoms and clinical pictures of the users.

Referring to the report of the Financial Times does the transfer take place without the express consent of the data subject, contrary to the Data Protection Law in the UK. Besides the legal obligations in the UK, the procedure of the website operators, using the cookie, contradicts also the legal requirements of the GDPR.

According to the requirements of the GDPR the processing of health data falls under Art. 9 GDPR and is a prohibition subject to permission, meaning, that the processing of health data is forbidden unless the data subject has given its explicit consent.

The report is also interesting considering the Cookie judgement of the CJEU (we reported). Based on the judgment, consent must be obtained for the use of each cookie.

Accordingly, the procedure of the website operators will (hopefully) change in order to comply with the new case law.