The General Data Protection Regulation (GDPR) introduces a mechanism for personal data transfers to third countries or international organisations that do not ensure an adequate level of data protection, based on approved certifications. According to Article 46 of the GDPR, contractual clauses ensuring appropriate data protection safeguards can be used as a ground for data transfers from the EU to third countries. This includes model contract clauses – so-called standard contractual clauses (SCCs) – that have been “pre-approved” by the European Commission.

On 4 June 2021, the Commission issued modernised standard contractual clauses under the GDPR for data transfers from controllers or processors in the EU/EEA (or otherwise subject to the GDPR) to controllers or processors established outside the EU/EEA (and not subject to the GDPR). These modernised SCCs replace the three sets of SCCs that were adopted under the previous Data Protection Directive 95/46. The Commission developed Questions and Answers (Q&As) to provide practical guidance on the use of the SCCs and assist stakeholders in their compliance efforts under the GDPR.

The Q&As state that businesses must do all of the following:

Consider the new optional docking clause, which expressly permits adding new parties to the SCCs. According to the Q&As, the docking clause allows controllers and processors that are not part of the original contract to accede to the SCCs at a later stage, either as data exporters or importers. This clause is intended to facilitate the use of the SCCs in complex processing chains and to avoid the need to enter into multiple contracts.

Migrate all contracts entered into before September 27, 2021, that use the old SCCs to the new SCCs by December 27, 2022. According to the Q&As, the old SCCs will be repealed on September 27, 2021. However, contracts concluded before that date on the basis of the old SCCs will remain valid until December 27, 2022, provided that the processing operations that are the subject matter of the contract remain unchanged and that reliance on those clauses ensures that the transfer of personal data is subject to appropriate safeguards within the meaning of Article 46(1) of the GDPR. After December 27, 2022, the old SCCs will no longer provide a valid legal basis for data transfers to third countries, and the new SCCs will have to be used instead.

Take steps to flow down the new SCCs to relevant parts of their supply chain using the new SCCs as of September 27, 2021, if the business is a data importer. According to the Q&As, the new SCCs require data importers to enter into contracts with any subprocessors that process the personal data transferred under the SCCs, and to include in those contracts the same data protection obligations as those imposed on the data importer under the SCCs. This means that data importers must ensure that the new SCCs are flowed down to their subprocessors as of September 27, 2021, and that any changes in the subprocessors are notified to the data exporter, who has the right to object.

The Q&As do not state that businesses must do the following:

Implement the new SCCs in the U.K. following Brexit, as the U.K. Information Commissioner’s Office does not have the authority to publish its own set of SCCs. This is not a valid statement, as the U.K. has its own data protection regime after leaving the EU, and the U.K. Information Commissioner’s Office (ICO) has the power to issue its own SCCs for data transfers from the U.K. to third countries. According to the ICO website, the ICO is currently developing bespoke U.K. SCCs, which will be subject to a public consultation and an opinion from the European Data Protection Board (EDPB). Until the U.K. SCCs are finalised, the ICO advises businesses to continue to use the EU SCCs for new contracts, as these clauses have been recognised as a valid transfer mechanism under the U.K. data protection law. However, the ICO also warns businesses that they may need to amend the EU SCCs to reflect that the U.K. is no longer an EU member state, and that they will need to update their contracts to the U.K. SCCs once they are available.

References:

GDPR, Articles 3, 4, 28, 29, 32, 44, 45, 46, 47, 48 and 49.

New Standard Contractual Clauses - Questions and Answers overview, paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11.

Standard Contractual Clauses (SCC), paragraphs 1, 2, 3, 4, 5, 6, 7 and 8.

[Using international data transfers], paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10.

 This is not a valid set of standard contractual clauses because it does not correspond to any of the decisions adopted by the European Commission under the GDPR or the previous Data Protection Directive 95/46. The correct decision for EU processor to non-EU or EEA controller is Decision 2010/87/EU, which was amended by Decision 2004/915/EC. Decision 2007/72/EC is actually related to the recognition of the adequacy of the protection of personal data in Switzerland. References:

Free CIPP/E Study Guide, page 18, section 3.4.2

Standard contractual clauses for international transfers, section 1.1

Standard Contractual Clauses (SCC), section 2.1

Decision 2007/72/EC

According to the GDPR, personal data must be kept in a form that permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed1. Therefore, the data storage period of the backup system must be aligned with this principle and reviewed regularly. Moreover, the GDPR requires that when a controller (the company) uses a processor (AWS) to process personal data on its behalf, it must ensure that the processor provides sufficient guarantees to implement appropriate technical and organizational measures to meet the requirements of the GDPR and ensure the protection of the rights of the data subjects2. This is usually done by signing a data processing agreement that sets out the subject matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects, and the obligations and rights of the controller3. AWS offers a GDPR-compliant Data Processing Addendum (DPA) that is incorporated into the AWS Service Terms and applies automatically to all customers who require it to comply with the GDPR4. References:

Free CIPP/E Study Guide, page 24, section 4.2.1

Free CIPP/E Study Guide, page 25, section 4.3

GDPR, Article 28

GDPR - Amazon Web Services (AWS), section “GDPR resources”

The GDPR defines profiling as any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements12. Therefore, the relevant factors when determining if a processing activity would be considered profiling are:

whether the processing involves data that is considered personal data;

whether the processing of the data is done through automated means; and

whether the processing is used to predict the behavior of data subjects.

The identity of the processor, whether it is the controller or a third-party vendor, is not relevant for the definition of profiling. However, it may have implications for the accountability and responsibility of the parties involved, as well as the data protection rights of the data subjects34. References: CIPP/E Certification - International Association of Privacy Professionals, Free CIPP/E Study Guide - International Association of Privacy Professionals, GDPR - EUR-Lex, What is automated individual decision-making and profiling? | ICO, WP29 releases guidelines on profiling under the GDPR, UK: A Guide To GDPR Profiling And Automated Decision-Making - Mondaq

According to the E-Commerce Directive 2000/31/EC, the place of establishment for a company providing services via an Internet website is the place where the service provider effectively pursues an economic activity through a fixed establishment for an indefinite period of time. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider. The place of establishment is determined by the place where the decisions about processing are made, not by the place where the technology supporting the website is located, where the website is accessed, or where the customer’s Internet service provider is located. This is confirmed by the GDPR, which applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing takes place in the EU or not. References:

E-Commerce Directive 2000/31/EC, Article 2(a), Recital 191

GDPR, Article 3(1)2

According to Article 3(1) of the GDPR1, personal data shall be processed in any member state only on the basis of a decision taken at a Union level that is binding for that member state, unless it is derogated from by national law. This means that the GDPR applies to any processing of personal data within the EU, regardless of where the controller or processor is located, as long as it is based on a decision made at a Union level that is binding for that member state.

Therefore, option B would most likely trigger the extraterritorial effect of the GDPR, as it involves personal data of EU citizens being processed by a controller or processor based outside the EU, which may be subject to a decision made at a Union level that is binding for that member state.

Option A would not trigger the extraterritorial effect of the GDPR, as it involves monitoring suspected terrorists, which is not considered processing under Article 4(1) and (2) of the GDPR1. Monitoring may fall under other legal frameworks, such as national security or counter-terrorism laws.

Option C would not trigger the extraterritorial effect of the GDPR, as it involves monitoring EU citizens outside the EU by non-EU law enforcement bodies, which may not be subject to any decision made at a Union level that is binding for that member state.

Option D would not trigger the extraterritorial effect of the GDPR, as it involves processing personal data of EU residents by a non-EU business that targets EU customers, which may not be subject to any decision made at a Union level that is binding for that member state.

References: 1: Free CIPP/E Study Guide - International Association of Privacy Professionals.