EU-US Data Transfer: Guide to GDPR Regulations and Requirements

The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and ensure their privacy. One of the most important issues concerns data transfers between the European Union and the United States, which must take place in compliance with the regulations provided by the GDPR

EU-US Data Transfer: A Comprehensive Guide to GDPR Regulations and Requirements
The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and ensure their privacy. One of the most important issues concerns data transfers between the European Union and the United States, which must take place in compliance with the regulations provided by the GDPR.

Throughout this article, we'll look at the different facets of EU-US data transfers, including legal requirements, data protection strategies, and the consequences of GDPR violations. We will also explore the implications of recent rulings by the Court of Justice of the European Union (CJEU) and their repercussions on data transfers between the two continents.

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data transfer and security
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Understand the GDPR and its impact on all businesses

Il GDPR it is a complex law that has a significant impact on the companies they manage personal data e sensitive data of EU citizens. Organizations must ensure that data is processed lawfully, transparently and securely and is collected only for specific, explicit and legitimate purposes.

Failure to comply with the GDPR can result in severe fines, which can be as high as 4 percent of a company's global annual turnover or €20 million, whichever is higher. Therefore, it is crucial that companies understand and comply with the GDPR requirements in terms of data transfers, data protection, consent management and other related areas.

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EU-US Data Transfer: Guide to GDPR Regulations and Requirements
The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and guarantee their privacy: one of the most important issues concerns data transfers between the European Union and the United States , which must take place in compliance with the regulations established by the GDPR

The Privacy Shield and its role in EU-US data transfers

The Privacy Shield was an agreement between the EU and the US that established a regulatory framework for data transfers between the two continents. However, in July 2020, the CJEU invalidated the Privacy Shield, arguing that it did not offer an adequate level of data protection for European citizens.

In response to this ruling, companies had to find other solutions to ensure compliance with the GDPR requirements in terms of data transfers. These solutions include Standard Contractual Clauses (SCC), Binding Corporate Rules (BCR), and Decision Adjustment.

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Data transfer: the American "Cloud Act" and the European rules on personal data, to which Switzerland will add in September 2023, are not compatible
The American "Cloud Act" and the European rules on personal data, to which Switzerland will join in September 2023, are not compatible

Standard Contractual Clauses (SCC) and their importance

SCCs are legal agreements between the transferring parties personal data between the EU and third countries, such as the United States. The SCCs set the conditions for data transfers and ensure that adequate measures are taken to protect the personal data and sensitive data of EU citizens.

Companies can use the SCCs as a basis for data transfers outside the EU, provided the authorities of data protection authorities approve such agreements. However, it is important to note that SCCs do not provide a one-size-fits-all solution and organizations need to carefully evaluate their specific GDPR compliance needs.

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Andreas Arno Michael Voigt, CEO of Innovando GmbH, was one of the speakers at the 2023 edition of the "LPD Day" in Lugano on 24 March 2023

The adjustment of decisions and implications on each pass of the data

The adequacy decisions are taken by the European Commission and establish whether a third country offers a level of data protection equivalent to that guaranteed by the EU. If a country is deemed adequate, data transfers between the EU and that country can take place without additional legal safeguards.

However, following the invalidation of the Privacy Shield, the United States is currently not considered an appropriate country for the purposes of the GDPR. Therefore, companies need to take other measures to ensure compliance with GDPR requirements in terms of data transfers between the EU and the US.

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EU-US Data Transfer: Guide to GDPR Regulations and Requirements
The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and guarantee their privacy: one of the most important issues concerns data transfers between the European Union and the United States , which must take place in compliance with the regulations established by the GDPR

Data localization and its importance in GDPR compliance

Data localization refers to the act of physically storing data within a particular territory. Some countries, such as Russia and India, have introduced data localization laws that require companies to store i personal data of citizens on the national territory.

While the GDPR doesn't explicitly require data localization, it can be a useful measure for businesses looking to ensure compliance with the law. By storing data within the EU, companies can reduce the risks associated with data transfers and ensure greater control over data protection. personal data and sensitive data of EU citizens.

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EU-US Data Transfer: A Comprehensive Guide to GDPR Regulations and Requirements
The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and ensure their privacy. One of the most important issues concerns data transfers between the European Union and the United States, which must take place in compliance with the regulations provided by the GDPR.

The role of the Data Protection Authority (DPA) in the transfer

The Authorities for the data protection (DPA) are independent bodies that oversee the application of the GDPR at a national level. DPAs are responsible for enforcing data protection regulations and can impose fines for violations of the GDPR.

Businesses transferring data between the EU and the US must work closely with the relevant DPAs to ensure compliance with GDPR requirements. This may include consulting DPAs regarding the use of SCCs, BCRs and other data protection strategies personal data and sensitive data.

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EU-US data transfer: the hard disk of a personal computer is a collector of personal and sensitive data
The hard disk of a personal computer is a collector of personal and sensitive data (Photo: Antonio Moreno Nadal/Pexels)

Encryption and pseudonymisation strategies for data protection

Encryption is a process that makes data unreadable without a decryption key, while pseudonymization replaces personal data with unique identifiers that cannot be easily linked to an individual. Both of these strategies can be used by companies to protect their personal data and sensitive dataand ensure compliance with the GDPR.

The GDPR encourages the use of technical and organizational measures to protect data, including encryption and pseudonymisation. Using these techniques, companies can reduce the risks associated with data transfers and ensure an adequate level of protection for i personal data  and  sensitive data of EU citizens.

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EU-US data transfer: Personal Data is information that identifies or makes identifiable, directly or indirectly, a natural person
Personal Data is information that identifies or makes identifiable, directly or indirectly, a natural person

Consent management and the decisive role in GDPR compliance

Consent is one of the core principles of the GDPR and requires companies to obtain the explicit and informed consent of individuals before collecting, processing or transferring their personal data. Organizations must ensure that consent is lawfully obtained and that individuals have the ability to withdraw consent at any time.

Consent management is a crucial aspect of GDPR compliance for companies transferring data between the EU and the US. Organizations must have effective systems in place to monitor and document the consent of individuals and ensure that data transfers only take place in the presence of valid consent.

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EU-US Data Transfer: Guide to GDPR Regulations and Requirements
The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and guarantee their privacy: one of the most important issues concerns data transfers between the European Union and the United States , which must take place in compliance with the regulations established by the GDPR

The judgments of the CJEU on data transfers and their consequences

In recent years, the CJEU issued several rulings that significantly impacted data transfers between the EU and the US. For example, as we saw earlier, the July 2020 ruling invalidated the Privacy Shield, ending an agreement that had been in place since 2016.

Other notable rulings include the 2015 ruling that invalidated the Safe Harbor Decision, which led to the creation of the Privacy Shield. These judgments have highlighted the importance of taking adequate measures to protect the personal data of EU citizens and the consequences of violations of the GDPR.

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Data transfer: group snapshot for some of the speakers of the second edition of the "LPD Day" at the LAC in Lugano on 24 March 2023: from left to right, Mattia Munari, IT engineer and CEO of Informatich Sagl, Stefania Calcagno, CTO of BCyber, Andreas Arno Michael Voigt, sociologist and CEO of Innovando GmbH, Maria Letizia Perugini, Italian law lawyer, and Angela Pedalina, jurist and partner of Informatich Sagl
Group snapshot for some of the speakers of the second edition of the "LPD Day" at the LAC in Lugano on 24 March 2023: from left to right, Mattia Munari, IT engineer and CEO of Informatich Sagl, Stefania Calcagno, CTO of BCyber, Andreas Arno Michael Voigt, sociologist and CEO of Innovando GmbH, Maria Letizia Perugini, Italian law lawyer, and Angela Pedalina, jurist and partner of Informatich Sagl

The Binding Corporate Rules (BCR) and their concrete application

Binding Business Rules (BCRs) are internal policies that companies can adopt to ensure compliance with GDPR requirements regarding data transfers. BCRs establish a regulatory framework for data transfers within an organization and may allow for the transfer of data between a company's subsidiaries in different countries.

BCRs are an alternative to SCCs for companies that transfer data within their organization. However, the BCRs require an approval process from the authorities data protection experts, which can be complex and time consuming.

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EU-US data transfer: Sensitive Data is a particular type of personal data concerning certain attributes of an individual deemed worthy of significant protection
Sensitive Data is a particular type of personal data concerning certain attributes of an individual deemed worthy of significant protection

Requirements for the Data Protection Officer (DPO) and GDPR

The data protection officer (DPO) is a key role in the application of the GDPR. The DPO is responsible for implementing and monitoring the policies of data protection of an organization and acts as a point of contact for data protection authorities.

The companies they manage personal data of EU citizens must designate a DPO, unless they are a small business or data processing is an essential part of their business. The DPO must be a data protection expert and must have access to the resources necessary to do their job effectively.

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The Data Processing Agreement (DPA) for GDPR compliance

Data Processing Agreement (DPA) is a legal agreement between a processing organization personal data and a data controller. The DPA sets the conditions for data processing and ensures that the person responsible for the data processing comply with the requirements of the GDPR.

Businesses that use external service providers for data processing must enter into a DPA to ensure compliance with GDPR requirements. The DPA must define the responsibilities of the parties, the methods of data processing and the appropriate security measures.

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EU-US Data Transfer: Guide to GDPR Regulations and Requirements
The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and guarantee their privacy: one of the most important issues concerns data transfers between the European Union and the United States , which must take place in compliance with the regulations established by the GDPR

US privacy laws and impact on EU-US transfers

The United States has various privacy laws governing the processing of personal data. However, these laws don't offer a level of data protection equivalent to that guaranteed by the GDPR, which means that companies transferring data between the EU and the US must take additional steps to ensure compliance.

For example, the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR) have many similarities, but the CCPA has a limited geographic scope. Therefore, companies operating in the United States must take additional steps to ensure compliance with the GDPR requirements regarding data transfers.

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EU-US Data Transfer: Guide to GDPR Regulations and Requirements
The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and guarantee their privacy: one of the most important issues concerns data transfers between the European Union and the United States , which must take place in compliance with the regulations established by the GDPR

The judgments of the CJEU on data transfers and their consequences

The Court of Justice of the European Union (CJEU) has issued numerous rulings that have had a significant impact on data transfers between the European Union and the United States. One of the most important decisions was the Schrems II case, which invalidated the EU-US Privacy Shield as a legal mechanism for the transfer of personal data. This ruling has had huge consequences for companies operating in both domains, as it has made it more difficult to ensure compliance with the GDPR.

Furthermore, the CJEU has established that the Standard Contractual Clauses (SCC) can be used as a legal basis for the transfer of personal data, provided that they are able to guarantee an adequate level of protection. However, the decision also underlined the responsibility of companies to evaluate whether third countries, such as the United States, offer one adequate level of protection for personal data. If not, companies need to implement additional safeguards to ensure GDPR compliance.

Finally, the CJEU recognized the importance of Binding Corporate Rules (BCR) as a mechanism to ensure secure transfer of personal data outside the EU. BCRs are internal policies adopted by multinational corporations that establish a legal framework for the transfer of personal data between group companies.

However, even then, companies need to ensure that BCRs offer a adequate level of protection and are compliant with the requirements of the GDPR.

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Data transfer: the 2022 edition of the "LPD Day" at LAC Lugano Arte Cultura: the speakers Mattia Munari and Angela Pedalina
The 2022 edition of the "LPD Day" at LAC Lugano Arte Cultura: the speakers Mattia Munari and Angela Pedalina

Privacy laws of individual US states and compliance with Europe

Privacy laws in the US are often considered less stringent than those in the EU, which has led to numerous challenges for companies trying to comply with the GDPR. However, the United States has recently taken some steps to strengthen the protection of personal data, such as the California Consumer Privacy Act (CCPA). This law gives Californian consumers rights similar to those granted by the GDPR, such as the right to access, erase and restrict the processing of personal data.

Despite this, privacy laws in the United States remain fragmented and vary from state to state. This makes it difficult for businesses to ensure GDPR compliance when they move personal data e sensitive data in the United States. Therefore, it is essential that companies inform themselves about local privacy laws and work with legal experts to ensure compliance with the laws in both the US and the EU.

One of the measures companies can take to ensure compliance is the use of Data Processing Agreements (DPAs) with their service providers in the United States. A DPA is an agreement between the data controller (usually the European company) and the data controller (the US service provider), setting out the responsibilities and obligations of both parties regarding the protection of personal data.

Among other things, a DPA should include safeguards around data security, access to information, and data breach notification.

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The management of personal and sensitive data breaches for the GDPR

The GDPR establishes stringent requirements for handling data breaches to ensure that companies adequately protect their data personal data and sensitive data and minimize the risk of violations. One of the key requirements is the appointment of a Data Protection Officer (DPO), who is responsible for overseeing GDPR compliance and handling data breaches.

In the event of a data breach, the GDPR requires companies to report the incident to the authority data protection (DPA) within 72 hours of discovery of the infringement, unless the infringement poses a risk to the rights and freedoms of the individuals concerned. Furthermore, if the breach poses a high risk to the rights and freedoms of the data subjects, the company must also inform the data subjects without undue delay.

To ensure compliance with the GDPR, companies must implement appropriate technical and organizational measures to ensure the security of personal data and sensitive data. These measures include the pseudonymization and encryption of personal data, the ability to ensure the confidentiality, integrity and availability of data processing systems and services, and the ability to promptly restore the availability and access to personal data and sensitive data in the event of a physical or technical accident.

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EU-US Data Transfer: Guide to GDPR Regulations and Requirements
The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and guarantee their privacy: one of the most important issues concerns data transfers between the European Union and the United States , which must take place in compliance with the regulations established by the GDPR

Conclusions and best practices for data management between the US and the EU

In conclusion, GDPR compliance for data transfers between the EU and the US is an ever-evolving challenge. However, there are some best practices companies can implement to ensure compliance and minimize the risk of data breaches.

First, companies need to carefully consider the legal mechanisms available for transferring personal data between the EU and the US. After the Schrems II ruling, the Privacy Shield is no longer an option, so companies have to rely on Standard Contractual Clauses (SCC) or Binding Corporate Rules (BCR). However, companies also need to assess the local situation and ensure that third countries offer a adequate level of protection of the personal data and sensitive data.

Second, companies need to work closely with US service providers and enter into Data Processing Agreements (DPAs) to ensure both parties' responsibilities and obligations are clear. In addition, companies must implement appropriate technical and organizational measures to ensure the security of sensitive dataie gods personal data.

Finally, companies must ensure the appointment of a Data Protection Officer (DPO) and training of staff on data management and GDPR compliance.

In a nutshell and to conclude, managing data transfers between the EU and the US requires close monitoring of CJEU rulings, an assessment of US privacy laws, and GDPR compliance. Companies that work closely with legal experts and implement best practices can ensure compliance and minimize the risk of data breaches.

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EU-US Data Transfer: A Comprehensive Guide to GDPR Regulations and Requirements
The General Data Protection Regulation (GDPR) is a European law that aims to protect citizens' personal data and guarantee their privacy. One of the most important issues concerns data transfers between the European Union and the United States, which must take place in compliance with the regulations provided by the GDPR.