Privacy & Information Security Law Blog

Recently, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to provide additional clarification on a wide range of topics, including transfers of personal information to third parties, the application of the Privacy Shield Principles to data processors, and the relation of the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) to the Privacy Shield. Certain key insights from the updated FAQs are outlined below:

• Data processors. When responding to individuals seeking to exercise their rights under the Privacy Shield Principles, the FAQs state that a processor should respond pursuant to the instructions of the EU data controller. For example, in order to comply with the Choice Principle, a Privacy Shield-certified organization acting as a processor could, pursuant to the EU controller’s instructions, put individuals in contact with the controller that provides a choice mechanism or offer a choice mechanism directly.
• Onward transfers. The FAQs also provide additional guidance for organizations preparing to come into compliance with the Accountability for Onward Transfer Principle. For example, the FAQs state that organizations may use contracts that fully reflect the requirements of the relevant standard contractual clauses adopted by the European Commission to fulfill the Accountability for Onward Transfer Principle’s contractual requirements.
• CLOUD Act. The FAQs state that the CLOUD Act, which involves data transfers for law enforcement purposes, does not conflict with the Privacy Shield, which is unaffected by the enactment of the law.