Elizabeth Denham and international transfers

One question prompted by the news (original source: 2040training) that Elizabeth Denham, the Information Commissioner, is currently working from her home in Canada, is whether the files and matters she is working on, to the extent they contain or constitute personal data, are being transferred to her in accordance with Chapter 5 of the General Data Protection Regulation (GDPR).

Chapter 5’s provisions mean that personal data can only be transferred to a country outside the European Economic Area in certain circumstances. In general, these boil down to: 1) if the European Commission has made an adequacy determination in respect of the country, 2) if Commission-approved standard contractual clauses are in place, 3) if binding corporate rules are in place, 4) if Article 49 derogations for specific situations are in place.

So, can one play a distracting little parlour game looking at what international transfer mechanism Ms Denham and the Information Commissioner’s Office (ICO) in the UK have adopted? No need, says the ICO. What is going on is not an international transfer of the type envisaged by GDPR.

The ICO’s guidance on the subject introduces the not-unhelpful term “restricted transfers”, to describe those transfers of personal data to which Chapter 5 of GDPR applies. However, it includes in its category of transfers which are not restricted, the following example

if you are sending personal data to someone employed by you or by your company, this is not a restricted transfer. The transfer restrictions only apply if you are sending personal data outside your organisation

So (at least to the extent that she, as Commissioner, is employed by, or embodies, the ICO) transfers of personal data to Ms Denham in Canada are not restricted transfers to which Chapter 5 of GDPR applies. There is, as it were, a corner of a foreign field that is forever Wilmslow.

The basis for the ICO’s position here, though, is not entirely easy to discern, and the position does not appear to be one that is obviously¬† shared by other data protection authorities, or the European Data Protection Board (unless the latter’s impending guidance on international transfers proves me wrong).

And it does strike me that the ICO’s position is potentially open to abuse. What if, for instance, someone decided to set up a medical data analytics company in the UK, with no UK employees, but a branch office in, say, Syria, employing hundreds of people there, and to where all of medical data it gathered was sent for storage and further processing, would the ICO still take the view that this was not a restricted transfer? Given the intense scrutiny which the CJEU applied to the US surveillance regime in the Schrems litigation, is it really likely that it would agree with a legal approach which resulted in data manifestly being in a state whose laws were deficient, but such data was not protected by the Chapter 5 provisions?

A similar issue might arise with another aspect of the ICO’s guidance, which implies that a transfer to a country outside the EEA, but which is a transfer to a controller to which the GDPR extra-territorial provisions apply, is also not a restricted transfer. If that controller was in, say South Sudan, would the ICO hold its position?

None of this is to say, of course, that the fact that a transfer may not be a restricted one means that all the other GDPR obligations are set aside. They continue to apply, and, no doubt, Ms Denham and the ICO are doing all they can to comply with them.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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