Cross-Border Transfers

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On Episode 16 of Covington’s Inside Privacy Audiocast, Dan Cooper, Yan Luo and Zhijing Yu discuss the implications of China’s Personal Information Protection Law (PIPL) for companies with data or doing business in China. The law, which entered into force on November 1, is the first comprehensive personal information protection law in China and…

On September 28, 2021, the European Data Protection Board (“EDPB”) issued its opinion on the European Commission’s (“Commission”) draft decision on the adequate protection of personal data in the Republic of South Korea.  Once the Commission approves the decision, it will allow for personal data to flow freely from the EEA to commercial operators and public authorities in South Korea, without the need to implement other transfer mechanisms provided in the General Data Protection Regulation (“GDPR”), such as standard contractual clauses.

The EDPB’s opinion is overall favorable with respect to the Commission’s finding that South Korea’s data protection laws offer a level of protection essentially equivalent to that provided by the GDPR.  In particular, the EDPB highlights that there are “numerous similarities” between the South Korean data protection laws (which include the Personal Information Protection Act (PIPA), its adjoining Enforcement Decree, and Notification No. 2021-1) and the European data protection framework, in particular the GDPR.
Continue Reading EDPB Adopts Overall Favorable Opinion on European Commission’s Draft Adequacy Decision for South Korea

There have been many headlines today about the UK Government’s plans to reform UK data protection law. We are still reviewing the (near 150-page) consultation document, but set out below a dozen proposals that we thought might pique the interest of readers of our blog.
Continue Reading 12 Eye-Catching Proposals In The UK Government’s Plan To Reform UK Data Protection Law

On August 11, 2021, the UK Information Commissioner’s Office (“ICO”) opened a public consultation to solicit stakeholder input regarding the UK’s approach to regulating international transfers of personal data under the UK General Data Protection Regulation (“UK GDPR”) (see here).  To kick off this initiative, the ICO published a consultation paper setting out various policy options that the UK is considering, as well as:

  • a draft set of contractual templates to facilitate transfers of personal data outside the UK, including: (1) a draft international data transfer agreement (“IDTA”); and (2) a draft international transfer addendum to be appended to the recently approved EU standard contractual clauses (“EU Addendum”); and
  • a draft transfer impact assessment tool designed to help controllers and processors transferring personal data under the UK GDPR satisfy the requirements articulated by the Court of Justice of the European Union (“CJEU”) in the Schrems II decision (see here).

The ICO has requested that interested stakeholders submit their feedback by no later than October 7, 2021.  In this blog post, we summarize these documents and tools, and identify topics that interested stakeholders may want to address when preparing their submission to the public consultation.…

Continue Reading UK Information Commissioner’s Office Opens Public Consultation on Policy Proposals and Documentation for International Transfers

On July 2 and July 5, 2021, China’s Cybersecurity Review Office (“CRO”), an office established under the Cyberspace Administration of China (“CAC”) responsible for coordinating the implementation of China’s Cybersecurity Review framework (more details about this framework can be found in our previous blogpost, available here), announced that it had initiated cybersecurity reviews against four mobile applications operated by three Chinese companies:  Didi Chuxing (“Didi”), Yunmanman, Huochebang and BOSS Zhipin (announcements are available here and here).

According to CRO’s announcements, these cybersecurity reviews were initiated based on requirements under the National Security Law (“NSL”), the Cybersecurity Law (“CSL”) and the Measures on Cybersecurity Review (“Measures”) and are aimed at “preventing national data security risks, maintaining national security and safeguarding public interests.”  This is the first time that CRO publically announced the initiation of cybersecurity reviews against companies after the Measures took effect on June 1, 2020.  Per the announcements, these apps are prohibited from registering new user accounts during the review period.

Separately, on July 4, CAC ordered the Didi app to be removed from Chinese app stores on the ground that the app seriously violated Chinese laws and regulations by “illegally collecting and using personal information” (the announcement is available here).  It is unclear whether this “take down” order is related to CRO’s ongoing cybersecurity review of Didi.

This post explains the requirements and procedures of cybersecurity review under the Measures, analyzes the focus of the current review against these three companies, and provides more background on recent enforcement actions against apps illegally collecting and processing personal information. …
Continue Reading China Initiates Cybersecurity Review of Didi ChuXing and Three Other Chinese Mobile Applications

On June 24, 2021, Australian parliament passed legislation establishing a framework for its enforcement agencies to access certain electronic data held by companies outside of Australia for law enforcement and national security purposes.  The law paves the way for the establishment of a bilateral agreement with the United States under the U.S. Clarifying Lawful Overseas Use of Data (CLOUD) Act.

Similar to the function of the CLOUD Act, the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 enables Australian enforcement authorities to compel companies covered by the statute to provide data, regardless of where the data is stored.  The legislation introduces international production orders, a form of legal process for compelling real-time interception of communications or the production of stored communications and telecommunications data, which can be served directly on communications providers in foreign countries with which Australia has an agreement.
Continue Reading Australia Passes Cross-Border Data Access Law, Creates a Pathway for CLOUD Act Bilateral Agreement

On June 28, 2021, the European Commission adopted two decisions finding that the UK’s data protection regime provides an “adequate” level of protection for personal data transferred to the UK from the EU.  The first decision covers transfers governed by the GDPR, and permits private companies located in the EU to continue to transfer personal data to the UK without the need for additional arrangements (such as the Commission’s new Standard Contractual Clauses (“SCCs”), which we discuss here).  The second decision covers transfers under the Data Protection and Law Enforcement Directive, and permits EU law enforcement agencies to continue to transfer personal data to their counterparts in the UK.
Continue Reading European Commission Adopts Final UK Adequacy Decisions

On June 1, 2021, several German supervisory authorities (“SAs”) announced the launch of a “nationwide investigation” into German companies transferring personal data outside of the European Economic Area.  Currently, there is no official list of all the SAs participating in the investigation, but at least 8 of Germany’s 16 regional SAs have announced their intention to take part in it, including: Baden Wuerttemberg, Bavaria, Berlin, Brandenburg, Hamburg, Lower Saxony, Rhineland-Palatinate, and Saarland.
Continue Reading German Supervisory Authorities Probe Data Transfers

Today, June 4th, 2021, the European Commission (“Commission”) published the final version of its new standard contractual clauses for the international transfer of personal data (“SCCs”) (see here).  While the final version retains much of the language of the draft version released in November 2020 (see here), it includes several notable updates.  When finalizing the SCCs, the Commission took into account the joint opinion of the European Data Protection Board (“EDPB”) and the European Data Protection Supervisor, feedback submitted by stakeholders during the public consultation period, and the opinions of EU Member States’ representatives.

In this blog post, we identify several key features of the new SCCs that organizations should keep in mind when preparing to implement them in contractual agreements going forward.…

Continue Reading European Commission Publishes New Standard Contractual Clauses

In Episode 12 of our Inside Privacy Audiocast, together with special guest Advocate Pansy Tlakula, Chairperson of the Information Regulator of South Africa, we discussed the Information Regulator’s mandate and the implementation of data protection legislation in South Africa.  Now, with less than a month to go before South Africa’s Protection of Personal Information Act, 2013 (“POPIA”) takes full effect on July 1, 2021, it is critical for organizations operating in South Africa to ensure that they are ready, if and when the Information Regulator comes knocking.

It is only when organizations start their POPIA journey that they realize just how wide the POPIA net is cast, and that very few businesses fall outside of its reach.  The road to POPIA compliance should be viewed as a marathon, and not a sprint.  While implementing and maintaining an effective POPIA compliance program will take continued effort and resources well beyond the July 1, 2021 go-live date, here we outline five steps to which companies subject to POPIA should give their attention in the short term.…

Continue Reading Final Countdown to POPIA Compliance: Five Critical Steps to Take Before July 1st, 2021