Hi !
"Will there be a Schrems III?"
This is a question many are asking now that the EU Commission released the new adequacy decision this summer. You might know it as the "adequacy assessment," "Data Privacy Framework," or maybe you call it "the new framework for transfers to the USA"? Beloved child has many names, as we say in Norwegian!
But how long will you be able to use this new basis for transfer? The Court of Justice of the European Union has set aside the previous transfer bases in Schrems I and II.
Put another way: Will there be a Schrems III?
What do we mean by the different terms?
Before we proceed, we'd like to explain what we mean by these terms.
The adequacy decision, in short, is the decision where the EU Commission has assessed and determined that it is now "safe" to transfer personal data to the USA. And by "safe," the EU Commission means that our data protection rights will be respected at a level equivalent to that in the EU/EEA.
The Data Privacy Framework is a framework that contains privacy obligations that American companies must comply with. If they manage this, they can be certified under the framework, which means that they can also use it as a basis for transfer. This again means that you, as a data controller and municipality, can use the Data Privacy Framework as a basis for transferring personal data to the USA if you have a supplier transferring personal data to the USA.
You can find a list of certified American companies here.
There is a requirement that when you transfer personal data out of the EU/EEA, you need a basis for transfer. The transfer bases that you can use are listed in GDPR Chapter 5.
If you use Google Workspace for Education, you should use the Data Privacy Framework as your basis for transferring your data to the USA
We in the national DPIA project had worked a lot with transfers to the USA when the adequacy decision came this summer.
We were well underway with the assessments of whether the American intelligence law EO 12333 applies to a municipality's processing of personal data in Google Workspace for Education.
We're not saying that these assessments became useless overnight, but that's actually what we're saying. Because if you use Google Workspace for Education, you should use the Data Privacy Framework or the adequacy decision as the basis for transferring personal data to the USA.
Google doesn't give you a choice. You can no longer use Standard Contractual Clauses, you must use the adequacy decision.
What we have created
What we have created is an assessment of whether there is reason to believe that EO 12333 applies to a municipality's processing of personal data in Google Workspace for Education. You can download it here.
This assessment will only be relevant to you if you have a supplier using Standard Contractual Clauses (SCC) as a basis for transfer and who is not certified under the Data Privacy Framework. When you use SCC as a basis for transfer, you also need to conduct what we call a Transfer Impact Assessment or a third-country assessment, and our assessment can be part of that.
This assessment can also be used as part of a third-country assessment if the adequacy assessment is invalidated and you, as a user of Google Workspace for Education, again have to use SCC as a basis for transfer.
However, it is worth noting that if the adequacy assessment is invalidated, some of the rules we have assessed may no longer apply. We are thinking specifically of EO 14086, and if that's the case, our assessment must be adjusted before you can use it!
Invitation to LinkedIn Live
Ok, ok, you might say. But will the adequacy assessment be set aside? Yes, that's the big question. And to answer it, we need to look at how the intelligence authorities in the USA are regulated now, compared to what was the case before.
We invite you to a special LinkedIn Live on 07.12 at 12:00-13:00. We will try to answer that, as well as go through the following points:
🟢 What does the adequacy assessment say? How does the EU Commission justify that data protection for EU citizens is now upheld in transfers to the USA?
🟢 Specifically about EO 14086? What does it mean for how "safe" it is to transfer personal data to the USA now?
🟢 What do we think is the risk that it will be overturned? Weaknesses? Other critiques!
🟢 What are the scenarios for it being overturned?
I wish you a wonderful, privacy-friendly week-end!
Best regards,
Ida Thorsrud
Project manager national DPIA
This newsletter was translated from Norwegian to English with assistance from ChatGPT by OpenAI. While it guided our translation, we made independent editorial choices. Any discrepancies result from this combined approach.