Feelings of Inadequacy Cloud International Cross-Border Data Transfers


Companies need more legal options to transfer data globally across borders, speakers at the 39th International Conference of Data Protection and Privacy Commissioners (ICDPPC) in Hong Kong said Sept. 29.

Monika Tomczak-Gorlikowska, data privacy legal counsel for Shell International, criticized European Union adequacy findings—by which the bloc judges a third country to have data safeguards in place that are equivalent to EU standards—are too rigid. Schemes that allow companies to demonstrate their accountability are more useful, she said.

Europe dividing the world into adequate and non-adequate jurisdictions is “akin to data localization” that requires companies to store data inside the borders of the country where it was collected, Tomczak-Gorlikowska said.

Nigel Cory, a trade analyst at the Washington-based Information Technology and Innovation Foundation, said regulators should grasp that data security doesn't depend on location. Cloud providers should be recognized as adequate platforms for the protection of personal data, he said. Major cloud providers, such as Amazon.com Inc., Alphabet Inc.’s Google, IBM Corp. and Microsoft Corp., are better able to protect data than a small company that receives personal data freely because it happens to be located in a country held to be adequate to protect privacy, Cory said.

Julie Brill, deputy general counsel for global privacy for Microsoft Corp. and a former commissioner on the Federal Trade Commission, said greater use of secure cloud services would “facilitate and augment the activities of smaller entities” in protecting personal data, and should be taken into account by regulators when deciding on international transfers.

Bruno Gencarelli, head of the data protection unit in the European Commission, the European Union's executive arm, defended EU adequacy decisions as sufficiently flexible. He said that the EU-U.S. Privacy Shield data transfer pact was a “partial adequacy decision” in that it only applied to companies that self-certify under the scheme.

The EU’s new privacy regime, the General Data Protection Regulation, which is set to take full effect in May 2018, will introduce greater possibilities for companies to use certification schemes and codes of conduct to facilitate international transfers of data, Gencarelli said.

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