Recommendations 01/2020 of the European Data Protection Board (the “EDPB”) on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data (the “Recommendations”) attempt to provide a step-by-step roadmap to help EU data exporters transfer personal data outside the EU to third countries in a manner consistent with the judgment of the Court of Justice of the European Union (the “CJEU”) handed down on July 16, 2020, in Data Protection Commissioner v. Facebook Ireland and Maximillian Schrems (“Schrems II”, further described in Section 1 below). The Recommendations were published on November 11, 2020 and can be relied upon immediately, even though they are subject to public consultation, with comments being due prior to December 21, 2020.
In their current form (summarised in Section 2 below) the Recommendations raise the following main issues:
- they would not solve the risks of inconsistency among both, data exporters and supervisory authorities, when assessing whether data may be transferred to certain third countries and under what condition, thereby generating a lack of visibility and certainty for data subjects and multinational data controllers and placing an undue burden on data exporters and importers wishing to engage in data transfers that are vital to their businesses;
- they would have inadvertent adverse consequences, among which (i) discouraging the transfer of data to countries simply because their data protection laws and practices are difficult to access, (ii) forcing the repatriation of data hosted using cloud service providers to EU-based servers, which may offer lesser security standards, and (iii) overly focusing on strong encryption as the sole effective technical measure when transferring data to third countries through cloud computing services or remote access, ignoring other measures such as pseudonymisation which could increase the level of security of the data while still enabling them to be usefully processed; and
- they would not be sufficiently aligned with the revised standard contractual clauses issued by the European Commission the day following the publication of the Recommendations (the “New SCCs”).
As further explained in Section 3 below, the EDPB should consider making the following amendments to the Recommendations when preparing their final version:
- Establish a resource centre on the “law and practice” of third countries and provide a template for their assessment. The requirement to undertake a case-by-case analysis of the legal systems of third countries will inevitably give rise to uncertainty and inconsistency; given that multiple data exporters will be undertaking such assessments in parallel, this creates a multiplication of costs which are in any event individually burdensome. A consistent and efficient appraisal of third countries’ data protection laws and practices would be greatly facilitated by (i) establishing (possibly with other institutions) a resource centre where updated legislative sources as well as pertinent case law and commentaries on the privacy and surveillance laws of third countries would be available to enable an equal access to information for all data exporters in the EU and which data exporters may supplement with their own research, and (ii) providing an indicative template for assessing the law and practice of third countries with different assumptions (which can be used as a precedent for similar analyses by data exporters).
- Follow a “risk-based” approach enabling exporters to determine which measures should be used depending on identified risks to individuals. The Recommendations provide illustrations of proposed supplementary measures based on “Use Cases” with strict assumptions, which do not give sufficient leeway to data exporters to handle the majority of situations which are often more complex. Instead, the Recommendations should offer a “risk-based” approach consistent with the General Data Protection Regulation (the “GDPR”) to enable data exporters to (i) assess the law and practice of the recipient country taking into account the circumstances of the transfer, including the nature of the data and the likelihood of access by public authorities in the recipient country, (ii) establish a “sliding scale” of risk levels and adopt proportionate supplementary measures, which may or may not include technical measures, commensurate with identified risks, and (iii) rely on precedent analyses for similar transfers, subject to regular updates.
- Avoid the suggestion that cloud computing and remote access to data in the clear are always prohibited. The Use Cases concerning cloud computing and remote access to data in the clear may be read as closing all avenues for data exporters to give effect to such transfers, which are critical to EU businesses. Instead, the Recommendations should also allow data exporters to use a risk-based approach to come to their own conclusion (having regard to the nature of the data and risks of access by public authorities) and consider either that no supplementary measure would be sufficient, or that a combination of technical measures, such as pseudonymisation in tandem with contractual and organisational measures for instance, could be put in place to permit the transfer
- When possible, enable data exporters to conduct a risk assessment for “in transit” data. The Recommendations suggest that, when the transferred data will transit through third countries before reaching their final destination, they will be required to be encrypted during transport or, if needed, even end-to-end. This is presumably based on the default assumption that the data exporter will not know the countries in which the data will be in transit. However, if data transit through identified countries, the Recommendations should enable data exporters not to encrypt “in transit” data if their risk assessment leads them to adopt no, or less stringent, supplementary measures.
- Clarify that each onward transfer is to be assessed by the person effecting that transfer. It may be impossible (and in any event, highly burdensome) for a data exporter to assess all potential onward transfers effected by the data importer. The initial data exporter may not control, or even be aware of, all onward transfers (i.e., further transfers of the data by the data importer and any other onward transferee). The responsibility of the initial exporter regarding onward transfers should be limited to requiring that the data importer (i) carry out the assessment and use supplementary measures based on the steps laid out by the Recommendations, but not to make that assessment itself and (ii) impose the same obligations on follow-on data transferors to ensure the protection of the data down the chain.
- Set appropriate encryption standards. Encryption appears to be the preferred supplementary measure set out by the Recommendations. However, for encryption to be deemed effective, the Recommendations require excessively high standards set out in the assumptions of the Use Cases concerning encryption, including the flawless implementation of the encryption algorithm or the retention of the encryption keys solely by the data exporter in certain cases. These standards would neither enable nor encourage the use of encryption by many data exporters and importers. Instead, the Recommendations should require the use of “appropriate” encryption standards (based on the GDPR’s requirement for appropriate technical and organisational measures) that are proportionate with the cryptanalysis resources of the recipient country and allow non-exclusive control of encryption keys, at least when identified risks of access are low.
- Set appropriate pseudonymisation standards. The Use Case concerning the transfer of pseudonymised data assumes that the additional information required to re-identify the data subjects is held “exclusively by the data exporter.” This does not seem to be required for that measure to be effective, as long as that additional information is not available to the data importer.
- Clarify that technical measures are not intended to block all data access requests by third countries. The Recommendations suggest that there are situations in which only technical (as opposed to contractual or organisational) measures may create an obstacle to “attempts from public authorities to access data.” However, technical measures, such as encryption, should be used to prevent public authorities in recipient countries from accessing the transferred data without authorisation from the data controller or prior notification to the data importer, but not as a way to block all governmental requests to access data (e.g., through a subpoena). In the event that such request is made by a public authority in a third country, it should be up to the data controller to assess whether the provision of the data is compatible with the conditions set out in the GDPR.
- Remove the recommendation to obtain the data subject’s consent in the event of a data access request by third countries. The Recommendations suggest that the parties to the transfer of data in plain text in the normal course of business should agree to request the express or implied consent of the data subject when the data importer receives a requests to access data by a third country’s public authority. That step would appear unnecessary as (i) such consent may not be valid under the GDPR (as the Recommendations themselves recognise) or even obtainable in practice, and (ii) valid consent of the data subject would allow the transfer of data based on a GDPR derogation without resorting to the transfer tools that are the object of the Recommendations.
- Align the Recommendations with the New SCCs. The EDPB should coordinate with the European Commission to ensure consistency of the Recommendations with the approach reflected in the New SCCs, including with respect to onward transfers, factors to take into account when assessing third countries’ laws and practices and the supplementary contractual measures set out in the Recommendations that are already included in the New SCCs.
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In its landmark Schrems II judgment, the CJEU invalidated the EU-U.S. Privacy Shield, upheld the European Commission Decision 2010/87 on standard contractual clauses for the transfer of personal data to processors established outside the EU (the “SCCs”), but also:
- reminded that any transfer of data based on SCCs may be challenged before the competent supervisory authority, which must “suspend or prohibit”, on a case-by-case basis, any such transfer when, in its view, the SCCs “are not or cannot be complied with”;
- put the onus on the data exporter (whether controller or processor) which contemplates using SCCs to, in collaboration with the data importer, assess the legal system of the country to which it intends to transfer personal data to make sure that the laws of this jurisdiction enable the parties to comply with the SCCs;
- indicated that the parties may establish “additional safeguards” to those offered by the SCCs to remedy these issues; and
- recognised the risk of divergent decisions by the various supervisory authorities when assessing whether transfers to a third country or additional safeguards should be permitted, suspended or prohibited, but pointed out that supervisory authorities may refer such matters to the EDPB to ensure consistency.
Guidance by the EDPB was therefore expected to provide clarity on:
- the criteria which data exporters should use to assess whether the laws of a particular third country enable data importers located there to comply with SCCs; and
- what additional safeguards could be put in place in order to remedy any issue identified when making that assessment.
The Recommendations are the highly-anticipated EDPB’s response to these expectations.
- Content of the Recommendations
The Recommendations provide data exporters with a step-by-step roadmap to follow for assessing and implementing “supplementary measures” when the “law or practice” of the third country to which personal data would be transferred pursuant to SCCs are not sufficient to “guarantee an essentially equivalent level of protection under EU law”. The scope of the Recommendations is in fact broader than setting out examples of supplementary measures that could be used when using SCCs, as they also cover measures to be used when transfers are affected when relying on any of the safeguards for transferring personal data to third countries set out in article 46(2) of the GDPR, among which SCCs is only one. These steps are as follows:
Step 1: Know Your Transfers (KYT)
The EDPB advises that exporters conduct a data mapping exercise to identify personal data flows and ensure that the data being transferred is adequate, relevant and limited to what is necessary in relation to the purposes for which the data being transferred to the third country. This step should come as no surprise as it is already implied by the other principles and obligations of the GDPR (e.g., accountability principle, obligation to create a record of processing activities, information of data subjects, and general principles to have a lawful basis for data transfers) and which should have been one of the first steps when gearing up for GDPR compliance before May 2018.
The EDPB also expressly advises not to “forget” to take into account “onward transfers” in the transfer mapping exercise, as well as remote access from a third country and international cloud infrastructure, unless “the cloud provider clearly states in its contract that the data will not be processed at all in third countries.”
Step 2: Choose Your Transfer Tool
The EDPB emphasises that transfers to third countries benefitting from an adequacy decision issued by the European Commission pursuant to article 45(3) of the GDPR (12 countries so far) are permitted “as long as the decision is still in force.” This suggests not only a possible repeal of existing adequacy decisions by the European Commission (under article 45(5) of the GDPR) but also that the CJEU may equally invalidate those when challenged, as it has the EU-U.S. Privacy Shield in Schrems II.
Other possible transfer tools under article 46(2) of the GDPR include (i) SSCs, (ii) ad hoc contractual clauses, (iii) binding corporate rules (“BCRs”), (iv) codes of conduct, and (v) certification of mechanisms. In practice, SCCs are the most commonly used tools, followed by BCRs in an intra-group context. However, the EDPB has indicated that its analysis of the impact of Schrems II on BCRs was still ongoing, such that the Recommendations mainly concern SCCs and ad hoc contractual clauses.
An exporter may also be able to rely on one of the strictly limited derogations provided by article 49 of the GDPR to transfer personal data if the conditions are met (e.g., transfer made with the explicit consent of the data subject, transfer necessary for the performance of a contract with the data subject or concluded in the interest of the data subject, transfer necessary for important reasons of public interest, transfer necessary for the establishment, exercise or defense of legal claims, etc.). The EDPB has issued other guidelines on the use of these derogations (Guidelines 2/2018) and the Recommendations caution that their use should be exceptional and mainly relate to transfers that are occasional and not repetitive.
Step 3: Assess the Law and Practice of the Recipient Country
According to the EDPB, that assessment should:
- cover not only the legislation but also the “practice” of the third country to determine whether they may “impinge” on the effectiveness of the chosen transfer tool; and
- not rely on “subjective factors” such as the likelihood that the transferred data will be of interest to public authorities in the third country or that they in fact access the transferred data.
Together with the Recommendations, the EDPB has issued European Union Guarantees Recommendations which set out the expectations of the EDPB as to what features the legal regime of a third party must have to be considered as offering an “essentially equivalent level of protection” as that of the EU, i.e.:
- processing of personal data must be based on clear, precise and accessible rules,
- need to demonstrate necessity and proportionality with regard to legitimate objectives,
- an independent oversight mechanism must exist, and
- effective remedies must be available to individuals.
Annex 3 of the Recommendations also provides a rather brief list of sources of information to make that assessment.
Step 4: Identify and Adopt Supplementary Measures
Where the assessment in Step 3 reveals that the third country law and practice are insufficient to guarantee a level of protection up to the “EU standard of essential equivalence,” exporters are encouraged to use supplementary measures to further protect the data. Exporters may decide which measure would be most effective for the specified data transfer. Combining diverse measures supports and enhances the level of protection.
Combing SSCs with other supplementary measures does not require authorisation from a supervisory authority as long as the supplemental measures do not contradict, directly or indirectly the SSCs and are sufficient to ensure that the level of protection guaranteed by GDPR is not undermined.
Annex 2 of the Recommendations provides a non-exhaustive list of examples of supplementary measures through “Use Case” illustrations, including some the EDPB considers to be ineffective. In the latter case, the transfer is prohibited or, if it has already occurred, then the data must be returned or destroyed by the importer.
- Technical Measures: Those include (i) encryption, (ii) pseudonymisation and (iii) split-party processing, and are illustrated by the following Use Cases.
Technical measures would be effective in the five following Use Cases:
- Use Case 1: Data storage for backup and other purposes that do not require access to data in the clear.
- Use Case 2: Transfer of pseudonymised data.
- Use Case 3: Encrypted data merely transiting third countries.
- Use Case 4: Protected recipient
- Use Case 5: Split or multi-party processing.
Technical measures would not be effective in the two following Use Cases:
- Use Case 6: Transfer to cloud services providers or other processors which require access to data in the clear.
- Use Case 7: Remote access to data for business purposes.
- Contractual Measures: Since contracts cannot bind the authorities of third countries, additional contractual safeguards will often only be efficient when combined with technical and/or organisational measures. Interestingly, the New SCCs already include certain contractual measures recommended by the EDPB. Those are classified by the EDPB as follows:
- Providing for the contractual obligation to use specific technical measures (see suggested measures above).
- Transparency obligations: this includes the publication of “transparency reports” on the number of requests for data from public authorities and, when legally permissible, the companies responses, which certain U.S. technology companies already volunteer. Other examples include (i) enhanced audit rights, (ii) requirements to notify the exporter if the importer can no longer comply with its obligations due to a change in law or practice and (iii) a “warranty canary” whereby the importer publishes (e.g., every 24 hours) a signed message informing the exporter that no government access request has been received, until one is.
- Obligations to take specific actions: this includes an obligation by the data importer to challenge government access to data where bases for such challenges exist, although the EDPB acknowledges that the efficiency of that approach will be likely be limited.
- Empowering data subjects to exercise their rights: these include commitments not to disclose data voluntarily to public authorities without the express consent of the data subjects or, when permitted, by applicable notifications to data subjects when access requests have been received to enable them to seek redress in the EU or the recipient country.
- Organisational Measures: Some of these measures should have already been taken into account by data exporters when considering their “technical and organisational measures” or implementing the data minimisation principle. The EDPB’s recommended organisational measures when dealing with data transfers to third countries include:
- internal policies for governance of transfers especially with group of enterprises,
- transparency and accountability measures,
- organisation methods and data minimisation measures, and
- adoption of standards (e.g., ISO norms) and best practices (e.g., ENISA), with due regard to the state of the art.
Step 5: Take Necessary Procedural Steps to Implement Supplementary Measures
Take any formal procedural step necessary to adopt the chosen supplementary measures. The necessary steps will depend on the transfer tool (e.g., authorisation of the competent supervisory authority when using ad hoc contractual clauses or when SCCs are modified by supplementary measures that “contradict” them directly or indirectly).
Step 6: Re-evaluate Regularly
Exporters ought to re-evaluate at regular intervals the level of protection afforded to the data being transferred to third countries and monitor if there have been or will be any developments that impede on the standard of protection. The GDPR principle of accountability requires continuous vigilance of the level of protection of personal data.
- Main Issues and Possible Amendments to the Recommendations²
The following intends to provide constructive suggestions to attempt to reconcile the interests of data exporters, importers and data subjects while complying with the standards set out in Schrems II and the GDPR.
a. Establish a Resource Centre on the “Law and Practice” of Third Countries and Provide a Template for their Assessment
The Recommendations state that it is the “primary responsibility of exporters to ensure that the data transferred is afforded a level of protection essentially equivalent to that guaranteed within the EU” by reviewing publically available legislation. Where the legislation is “lacking”, the data exporter then has to consider other relevant and objective factors. However, the current version of the Recommendations do not provide more than high-level principles and sources of information with respect to the assessment of the data protection “law and practice” of third countries as described in Step 3.
This approach would leave data exporters in almost the same situation as they were before the Recommendations were issued, as they would continue to be faced with:
- a challenging and risky analysis (in particular having regard to the possible sanctions if the assessment is later deemed to be incorrect and, perhaps even more importantly, the perspective that data transfers may have to be stopped or transferred data repatriated);
- an onerous and time-consuming assessment that would prevent any urgent transfer of data and that would have a serious impact on the risk-benefit analysis of transfers that were until now commonplace or necessary (in particular at a time when remote working and e-commerce are becoming the norm);
- an imbalance between large companies with sophisticated advisors and small and medium enterprises that may not have the resources necessary to conduct such assessment; and
- uncertainty when the laws of third countries are difficult to access or understand, in which case many exporters would choose to abstain from transferring data to such countries, which may therefore be penalised and deprived of data-dependent business from the EEA, despite potentially meeting the conditions for importing personal data.
More generally, in the absence of additional guidance on the law and practice of third countries, both exporters and supervisory authorities may come to divergent conclusions with respect to the law and practice of the same country. The Recommendations in their current form therefore do not solve the risk of inconsistency that was highlighted by the CJEU itself in Schrems II, leaving exporters and importers, and, more importantly, the data subjects with no visibility as to where the data may be transferred and under what conditions. This is also a costly and onerous analysis which will need to be conducted by multiple data exporters in parallel. As well as creating uncertainty and inconsistency, this will also result in an unnecessary multiplication of costs for EU data exporters.
We therefore urge the EDPB to consider:
- without prejudice to data exporters and importers conducting their own research, establishing (potentially in collaboration with other institutions) a resource centre maintaining a continuously-updated database setting out, in their original version and/or in at least one EU language if necessary, the relevant legislation, case law and pertinent available commentaries describing the law and practice of third countries, in particular those which would otherwise be almost impossible to access for many small or medium enterprises; and
- providing an indicative template for the assessment of the law and practice of a third country, based on various hypotheses for different legal systems (rather than on the current laws and practices of an actual third country which are subject to change), that would serve as a precedent for similar analyses are to be conducted by data exporters.
b. Follow a Risk-Based Approach Consistent with the GDPR
The Recommendations state that:
- a third country’s data protection regime should be assessed not only with respect to its law but also to its “practice” – this implies that extra-legal criteria should be taken into consideration when assessing whether the public authorities of that country do, in practice, access personal data; and
- the “applicable legal context will depend on the circumstances of the transfer”, including the “categories of personal data transferred.” The data exporter is indeed not required to carry out a general adequacy analysis of the laws of a third country similar to that of the European Commission when taking an adequacy decision pursuant to article 45 of the GDPR. Instead, the data exporter should conduct its assessment of the law and practice of a given third country only with a contemplated transfer in mind. This is also consistent with the ruling in Schrems II that supervisory authorities have to assess the lawfulness of each transfer “in the light of all the circumstances of that transfer.”
When read together, the foregoing would logically imply that data exporters should conduct an analysis of the relevant guidance, statements from public authorities or experience of local professionals on how rules are actually interpreted (i.e., a country’s “practice”) and also take into account the nature of the transferred data, their interest to public authorities and such public authorities’ practice in accessing them (i.e., the circumstances of the transfer). Yet, the Recommendations discourage looking at whether it is “likely” that the transferred data will in practice be accessed by public authorities, dismissing this consideration as “subjective”.
The reference to a country’s “practice” should be viewed holistically, and not only negatively, when assessing whether a third country offers a substantially equivalent level of protection as that of the EU. In the present case, the risk to individuals will only materialise when the public authorities of the third country actually access the data to be transferred. The likelihood of that risk in the context of the contemplated transfer is therefore a key factor in assessing a country’s actual data protection practice since possible supplementary measures will need to be adapted to the risk identified in making that assessment.
Whether a risk is “likely” is a criterion that is used throughout the GDPR itself and should not be automatically viewed as “subjective”. For instance:
- the responsibility and liability of the controller for any processing depends on its implementation of appropriate and effective measures, which are to be determined based, in part, on the likelihood of the risk to the data subject;
- data protection impact assessments are to be conducted when processing operations are likely to result in a high risk to the rights and freedoms of natural persons; and
- notification of a personal data breach does not have to be made to supervisory authorities if it is unlikely to result in a risk to the rights and freedoms of natural persons and is required to be made to the data subjects only if it is likely to result in a high risk to them.
More importantly, the GDPR provides that technical and organisational measures to be implemented by the controller must be assessed based on, inter alia, the likelihood of risks for the rights and freedoms of natural persons. In the present case, supplementary measures that are the object of the Recommendations fall in the scope of technical and organisational measures and it would therefore only be natural that they be assessed in accordance with the criteria set out in the GDPR itself. The Recommendations themselves provide that the “nature of the data” should be taken into account when assessing the effectiveness of proposed supplementary measures. The “risks involved in the processing” and the “nature of the personal data” to be transferred are also material factors to take into account in “assessing the appropriate level of security” according to the New SCCs.
Given the fact that supplementary measures to be adopted in accordance with Step 4 will need to be tailored to the law and practice of the recipient country to be assessed in Step 3, it would therefore be essential to enable data exporters to take into account whether access to the transferred data by that country’s public authorities is “likely”. This assessment will need to be made in consideration of, among other factors, the nature of the data to be transferred and whether public authorities have, in prior instances, accessed such data and in what circumstances.
This is the approach retained by the New SCCs, which include a warranty that the parties “have no reason to believe that the laws in the third country of destination (…) prevent the data importer from fulfilling its obligations under these Clauses” based on an “understanding that laws that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one the objectives listed in Article 23(1) GDPR, are not in contradiction with the Clauses.” In giving that warranty, the New SCCs provide that the parties are to take into account, inter alia: “the specific circumstances of the transfer, including the content and duration of the contract; the scale and regularity of transfers; the length of the processing chain, the number of actors involved and the transmission channels used; the type of recipient; the purpose of processing; the nature of the personal data transferred; any relevant practical experience with prior instances, or the absence of requests for disclosure from public authorities received by the data importer for the type of data transferred.”
A risk-based approach would also enable the data exporter to determine whether a combination of contractual and organisational measures may sometime be sufficient to mitigate the risks of the transfer to the individual, in particular where access to data by public authorities in the recipient country appears highly unlikely. This would be impossible under the current version of the Recommendations, which suggests that contractual and organisational measures may never be sufficient on their own without technical measures, which appear to be essentially limited to strong encryption and pseudonymisation. This would result in unwarranted and significant business disruptions as these measures may be inadequate for the intended use of transferred data even when the likelihood of them being accessed by public authorities would be remote. This may also cause exporters to rely more extensively on derogations set out in article 49 of the GDPR, which would be contrary to the EDPB’s own previously-stated policy objective and could even ultimately be less protective for data subjects.
Finally, by analogy with data protection impact assessments, there may be circumstances under which a properly documented assessment of a country’s law and practice made for a particular transfer may be used more broadly for additional similar transfers (e.g., in terms of nature of the personal data, purposes and means of the transfer and categories of recipients) to the same country. In that case, to avoid uselessly repeating an onerous and time-consuming process, it should be clear that a data exporter may be allowed to rely on it in the future for similar transfers to the same country provided that it has verified that no changes in the law or practice of that country would warrant conducting another assessment.
The Recommendations should therefore enable data exporters to:
- take into account whether it is likely that the transferred data will, in practice, be accessed by the public authorities of that country, having regard to the circumstances of the transfer, including the nature of the data contemplated to be transferred in conjunction with the country’s practice in that regard;
- use a “sliding scale” of risk levels to determine whether strong technical measures are required (when the risk level is high) or contractual and/or organisational measures may suffice on their own (without a requirement to use technical measures such as encryption), for instance when access to the transferred data is highly unlikely based on the practice of the recipient country; and
- once an assessment has been made and documented for a transfer to a given third country, rely on it as a precedent for further similar transfers to that country provided that the assessment is updated in the event of a change in the law and practice of that country.
c. Avoid Apparent “Per Se” Prohibitions of Cloud Computing or Remote Access to Data in the Clear
Many will interpret the fact that EDPB states that it is “incapable of envisioning an effective technical measure” applicable in the cases of cloud services requiring access to data in the clear (Use Case 6) and remote access for business purposes (Use Case 7) as “per se” prohibitions of these data transfers. However, that interpretation would seem incompatible with the underlying principle set out in the Recommendations that it is the primary responsibility of data exporters make the assessments described in the various steps of the Recommendations. Exporters should therefore be free to mitigate the risks of data transfers in the scenarios described in these two Use Cases by using supplementary measures, including, but not limited to, those described in the Recommendations.
The disruption caused by a sudden suspension of all cloud-based or remote-access transfers of data in the clear would also have disproportionate consequences on EU businesses and individuals, as well as possible detrimental effects on the overall level of data security in the European Union. Reliance on cloud computing and remote access has become so commonplace, in particular in the past months as a reaction to the COVID-19 pandemic and the widespread practice of remote working, that an outright ban of these practices would have a potentially disastrous impact on EU-based businesses and, ultimately, European consumers and employees. Storing data using a professional cloud service provider has also often been proven to offer stronger security assurances than storing them in a local server, even if it is located in the European Union. The Recommendations may therefore have unintended adverse impacts on EU data security.
Use Cases 6 and 7 also appear to be framed as alternatives between keeping “data in the clear” (in which case the transfers would be prohibited) and encrypted data (in which case there would be a chance that the transfers would be permitted in accordance with Use Cases 1 and 3). Encryption would make the data unintelligible and therefore unusable by the recipient. Pseudonymisation should not be overlooked as an alternative technical measure which offers a strong level of protection if the data is accessed without authorisation while not depriving it of utility, as data may still be processed even if it cannot be attributed to a specific data subject. Pseudonymisation is also explicitly mentioned as a possible additional security measure to be considered in the “security of processing” clauses of the New SCCs and in the GDPR as a data minimisation measure, and helping making data breaches “unlikely to result in a risk to the rights and freedoms of natural persons,” which is the fundamental objective of supplementary measures. There are also situations in which pseudonymisation may not be appropriate in light of the purpose of the processing, in which case other types of measures should be able to be considered by the data exporter based on the nature of the data and identified risks of access by public authorities in the recipient country.
The EDPB should therefore consider specifying that, while effective supplementary measures may be challenging to implement in the situations described in Use Cases 6 and 7:
- the data exporter may still assess, in collaboration with the data importer, whether a combination of other appropriate contractual, technical or organisational measures (including, but not limited to pseudonymisation) may enable the transfer to meet the substantial equivalence standard, taking into account other factors, including the nature of the data, the likelihood of access and harm to data subjects; and
- future technological development may also benefit the assessment for remote access transfers for business purposes described in Use Case 7 (and not only Use Case 6 as is currently the case).
d. When Possible, Enable a Risk Assessment for “In Transit” Data
Use Case 3 suggests that, when transferring data over the Internet such that it “may be geographically routed” through a third country not providing an essentially equivalent level of protection before it reaches the recipient country, the exporter should implement the specific technical measures described in that Use Case (transport encryption, if needed in combination with end-to-end content encryption). This appears to be a default position to be taken even when the third countries through which the data will transit are not identified and the step-by-step analysis described in the Recommendations cannot be conducted.
The EDPB should consider clarifying that if a third country through which the data transits may be identified, the data exporter may also implement no supplementary measure or rely on other types of supplementary measures, after making an assessment in accordance with Step 3 and Step 4.
e. Clarify Obligations Concerning Onward Transfers
Both Step 1 and Step 3 of the Recommendations provide that onward transfers (i.e., transfers made by the data importer and onward recipients of the data) fall in the scope of the Recommendations. However, the initial data exporter cannot be held liable for all onward transfers and the Recommendations should clarify that the obligations to identify onward transfers (Step 1) and assess the effectiveness of the transfer tools for onward transfers (Step 3) do not apply to the initial exporter but rather to the data importer (and others down the chain) conducting such onward transfers.
Indeed, it may be impossible (and in any event, highly burdensome) for a data exporter to assess all potential onward transfers effected by the data importer. The initial exporter may not have knowledge of all onward transfers. The person conducting the onward transfer is therefore best placed to complete both Step 1 and Step 3, as it will be implementing the transfer tool (e.g., by entering into new SCCs with the onward data importer) or ensuring that other grounds for transfer apply as described in the Recommendations, as well as choosing and performing any supplementary measures necessary to achieve an essentially equivalent level of data protection, and will bear the responsibilities in that regard. This would not only be the most pragmatic position, it would also be consistent with the definition of “You” in the Recommendations, which designates the controller or processor acting as data exporter in the contemplated transfer.
This approach appears to be reflected in the New SCCs, in which the data importer (acting as onward data exporter) bears the responsibility of carrying out onward transfers only if they meet certain conditions, including by causing the third party to ensure “appropriate safeguards pursuant to articles 46 or 47 of the GDPR”, or, when the data importer is a controller, obtaining the third party’s agreement to be bound by the original SCCs, entering into an agreement with the third party ensuring the same level of data protection as under the SCCs or obtaining the explicit consent of the data subject.
This clarification is not intended to detract the responsibility of the initial data exporter, which, when using transfer tools of a contractual nature such as SCCs, ad hoc contractual provisions or binding corporate rules, would still have the obligation to bind the data importer to carry out the assessment set out in the Recommendations and implement supplementary measures when necessary if it intends to carry out any onward transfer. The same obligations would therefore apply to any future onward data exporter to ensure consistency in the level of data protection down the chain.
f. Set Appropriate Encryption Standards
The two Use Cases set out in Annex 2 of the Recommendations involving encryption (Use Case 1 and Use Case 3) assume, as a condition to effectiveness of the technical measure, that:
- encryption can be considered robust against cryptanalysis by public authorities in the recipient country;
- the encryption algorithm will be “flawlessly implemented”; and
- encryption keys should be “retained solely under the control of” (Use Case 1) or “reliably managed by” (Use Case 3) the data exporter or an entity entrusted with this task in the European Economic Area or a country which has been granted an adequacy decision by the European Commission.
Encryption appears to be the technical measure that is most widely recommended in the Recommendations. It is therefore important that the encryption standards set by the Recommendations be strong but not so high as to be impracticable, unachievable or excessively onerous, which would have the unintended consequence of discouraging data exporters from using them.
Cryptography is usually implemented in a hierarchical manner, which involves decentralised and non-exclusive control of keys to mitigate risks associated with external threats, potential outages and to ensure operational resiliency. In addition, multinational organisations often do not segregate data on a jurisdictional basis, due to the use of shared applications, shared infrastructure and due to necessary intragroup data sharing requirements for legitimate business purposes (including risk management and to satisfy legal or regulatory obligations). The Recommendations would potentially require application and infrastructure redesign, segregation and relocation of support teams and business processes, similar to UK ring fencing of wholesale and retail businesses, which took several years and involved significant costs.
Finally, there are situations in which, regardless of where the encryption keys are stored, the data will need to be decryptable at their destination, including for the purpose of assessing operational resilience.
As a result, the EDPB should consider:
- specifying that an assessment of the robustness of encryption measures against cryptanalysis by public authorities may vary depending on the country and through time;
- use an “appropriateness” standard having regard to the state of the art rather than a “flawlessly implemented” standard, consistent with the standard applicable to safeguards to transfer personal data to third countries pursuant to article 46 of the GDPR and technical and organisational measures to be put in place to ensure the security of processing pursuant to article 32 of the GDPR; and
- use only the “reliably managed” standard (and not the “sole control” standard) with respect to encryption keys in Use Case 1 (as is the case in Use Case 3). If the “sole control” criterion is nevertheless retained, the EDPB should clarify that the data exporter may control the encryption keys either operationally or contractually through an agreement with a service provider in charge of managing them. The EDPB may also then clarify that the lack of “sole control” of encryption keys may be outweighed by contractual or organisational measures, in particular when sole control would be disproportionate having regard to the nature of the data and likelihood that public authorities would access them in the recipient country.
g. Set Appropriate Pseudonymisation Standards
Use Case 2 suggests that, for pseudonymisation to be considered as an effective supplementary measure, the additional information necessary for the data to be attributable to a specific data subject (the “Additional Information”) should be “held exclusively by the data exporter” and “kept separately” in the EU or in a third country having been granted an adequacy decision by the European Commission.
However, there are circumstances in which exclusive control of the Additional Information by the data exporter may be neither feasible nor desirable. The Additional Information may not be in the hands of the data exporter, which could have received the data in pseudonymised form to begin with, in particular in the case of transfers in which the data exporter is a processor acting on behalf of a controller which may be in the possession of the Additional Information. Furthermore, as provided for in Use Case 5, the data could be subject to split or multi-party processing (in connection with which two or more data importers could be in possession of Additional Information, vis-à-vis the data set being processed by the other). The New SCCs appear to recognise this as they qualify the clause relating to the control of the Additional Information by the data exporter by “where possible”.
The appropriate level of protection required for pseudonymisation to be considered an effective supplementary measure should therefore only be that the Additional Information not be communicated or accessible to the data importer.
The Recommendations should therefore recognise that pseudonymisation is effective so long as the data importer cannot access the Additional Information, irrespective of the identity of the party that is in control of the Additional Information or its location.
h. Clarify that Technical Measures Are Not Intended to Block Data Requests by Third Countries
The Recommendations provide in Step 4 that “there will be situations where only technical measures might impede or render ineffective access by public authorities in third countries to personal data, in particular for surveillance purposes” and that supplementary measures may strengthen the level of data protection by “creating obstacles for attempts from public authorities to access data.”
The foregoing should only apply when public authorities attempt to access transferred data covertly without any notice or request to the data importer. In that case, “appropriate technical and organisational measures” would, in any event, have to be implemented pursuant to article 32 of the GDPR to prevent unauthorised access.
However, if a country’s public authority makes a request to the data importer to be provided with specific data, the EDPB should consider clarifying that the parties do not have an obligation to block access to such data by implementing the technical measures set out in the Recommendations such as encryption. In that case, an analysis of the request would have to be conducted to assess whether there is a ground for providing the data in accordance with the GDPR and, when this is not the case, contractual measures can be put in place to ensure that such requests will be contested by the parties.
i. Data Subject Consent When Data Importer Receives Requests from Public Authorities
The Recommendations provide that the parties to SCCs or ad hoc contractual clauses could agree to provide that personal data transmitted in plain text in the normal course of business may only be accessed “with the express or implied consent of the exporter and/or the data subject.” They further specify that the data subject may not always be in a position “to give a consent that meets all the conditions set out” in the GDPR, citing the case of employees.
The utility of seeking the data subject’s consent in that situation is unclear. On the one hand, if the explicit consent of the data subject can been validly obtained, there would be no need for supplementary measures to the SCCs or the ad hoc contractual clauses, as the transfer of the data to the public authorities may be based on a derogation under article 49(1)(a) of the GDPR. On the other hand, if the consent of the data subject does not meet the GDPR conditions for consent (e.g., it is implied and not express, not freely-given, not specific or not informed), it is uncertain that this contractual measure would amount to a substantially equivalent level of protection as that afforded by EU law.
The EDPB should consider removing such data subject consent requirement or further elaborating on the purpose of obtaining such consent.
j. Coordinated Approach with the European Commission on the New SCCs
The EDPB should consider taking advantage of the publication of the New SCCs to coordinate its approach more closely with the European Commission. As explained above, the EDPB should in particular consider adopting a risk-based approach to assessing the law and practice of third countries taking into account the same factors as those laid out in the New SCCs (see §3.b above), and aligning its positions on onward transfers (see §3.e above) and pseudonymisation (see §3.g above) with the one reflected in the New SCCs.
The EDPB should also identify the supplementary contractual measures described in the Recommendations that are incorporated in the New SCCs, in which case they should be viewed as part of the chosen transfer tool (and therefore not as “supplementary” measures) if SCCs are used by the parties. Other contractual measures suggested by the EDPB would then be viewed as optional provisions which the parties may choose to include in the SCCs or other transfer tools to further increase their chances that the “essentially equivalent” standard will be met.
 See our previous articles on the subject: https://www.clearycyberwatch.com/2020/07/schrems-ii-the-cjeu-declares-eu-u-s-privacy-shield-invalid-upholds-the-sccs-and-calls-on-27-supervisory-authorities-to-ensure-their-compliance/ and https://www.clearycyberwatch.com/2020/10/schrems-ii-a-global-update/
 These comments to the Recommendations align with the joint submission made to the EDPB by the Association for Financial Markets in Europe (AFME) and the Securities Industry and Financial Markets Association (SIFMA), with which the authors collaborated.
 Recital (8) of the Recommendations.
 “As regards the fact, underlined by the Commissioner, that transfers of personal data to such a third country may result in the supervisory authorities in the various Member States adopting divergent decisions, it should be added that, as is clear from Article 55(1) and Article 57(1)(a) of the GDPR, the task of enforcing that regulation is conferred, in principle, on each supervisory authority on the territory of its own Member State. Furthermore, in order to avoid divergent decisions, Article 64(2) of the GDPR provides for the possibility for a supervisory authority which considers that transfers of data to a third country must, in general, be prohibited, to refer the matter to the European Data Protection Board (EDPB) for an opinion, which may, under Article 65(1)(c) of the GDPR, adopt a binding decision, in particular where a supervisory authority does not follow the opinion issued.” (Schrems II, §147).
 §29, §30, §43, §44, §60, §66, §107 and §108 of the Recommendations.
 §33 of the Recommendations.
 Schrems II, ruling 3.
 §42 of the Recommendations.
 §43 of the Recommendations suggests that the “practice” of third countries, as set out in non-legislative sources, may only be considered to complete an initial assessment with “elements demonstrating that a third country authority will seek to access the data with or without the data importer’s knowledge.”
 Article 24 and recitals (74) to (77) of the GDPR.
 Article 35 and recitals (75), (84) and (89) to (93) of the GDPR.
 Article 33 and Recital (85) of the GDPR.
 Article 34 and recital (86) of the GDPR.
 §49 of the Recommendations.
 Clause 1.5(a) (Module One), clause 1.6 (Module Two and Three) and clause 1.2 (Module Four) of the New SCCs.
 Clause 2(b)(i) of the New SCCs (all Modules).
 §48 of the Recommendations.
 As expressed in EDPB Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679 cited in footnote 4 above.
 Article 35(10) and recital (92) of the GDPR.
 §88 and §90 of the Recommendations.
 Recital (8) of the Recommendations.
 Clause 1.5(a) (Module One), clause 1.6 (Module Two and Three) and clause 1.2 (Module Four) of the New SCCs.
 Article 25 of the GDPR.
 Articles 32 to 34 of the GDPR.
 §84 of the Recommendations.
 §6 of the Recommendations provides: “What follows is a roadmap of the steps to take in order to find out if you (the data exporter) need to put in place supplementary measures to be able to legally transfer data outside the EEA. “You” in this document means the controller or processor acting as data exporter, processing personal data within the scope of application of the GDPR – including processing by private entities and public bodies when transferring data to private bodies.”
 Conditions for onward transfers are set out in Section II, Clause 1.7 (Module One) and Clause 1.8 (Modules Two and Three) of the New SCCs.
 §79 and 83 of the Recommendations.
 Clause 1.6 of Section II (Modules Two and Three) of the New SCCs.
 §48 of the Recommendations.
 §116 of the Recommendations.
 §117 of the Recommendations.