Webinar FAQ 1: Are BCRs similarly affected by Schrems II like SCCs?
Yes, BCRs and SCCs are both covered by Schrems II.
FAQ No. 6 of the EDPB Schrems II FAQs make it clear that “...the Court’s assessment applies as well in the context of BCRs…” and “supplementary measures along with BCRs, following a case-by-case analysis of the circumstances surrounding the transfer, would have to ensure that U.S. law does not impinge on the adequate level of protection they guarantee.” See https://edpb.europa.eu/sites/edpb/files/files/file1/20200724_edpb_faqoncjeuc31118.pdf at page 3.
The reason so much time was dedicated at the beginning of the webinar to Data Protection by Design and by Default (DPbDD) was to highlight the obligations of controllers under Article 25 GDPR, applicable to all processing.
Article 25(1) and (2) require that controllers must (emphasis added):
- “Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing,
the controller shall, both at the time of the determination of the means for processing and at the time of the processing itself,
implement appropriate technical and organisational measures, such as pseudonymisation, which are designed
to implement data-protection principles, such as data minimisation, in an effective manner
and to integrate the necessary safeguards into the processing
in order to meet the requirements of this Regulation and protect the rights of data subjects.
- “The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed…”
When data use/privacy policies agreed to by data subjects are breached, contract claims do little to remedy damage to their fundamental rights. This is why DPbDD is required, and why the implementation of technical and organisational controls is specifically mentioned as a basic requirement of GDPR compliance.
Schrems II further emphasized this point, as the CJEU highlighted that the surveillance functions of the U.S. government are not bound by restrictions contained in contracts between an EU Data Exporter and Non-EU Data Importer. This is why “supplementary measures” are required to ensure that SCCs and BCRs (which are contractual) contain more than promises and can prevent breaches of fundamental rights.