United States: GDPR Stands For . . . "Gotta Do [Something] Privacy-Related?"; When Is My US Company Subject To The New EU General Data Protection Regulation?

Last Updated: February 10 2017
Article by Tanya Forsheit

The new EU General Data Protection Regulation or "GDPR" takes effect May 2018. Many US companies may wonder why they should care about European privacy laws. The answer may surprise you if you are not a close follower of privacy law developments. The GDPR includes an extraterritorial jurisdiction provision pursuant to which many US companies without any personnel or servers in the European Union may still be subject to the law. So how do you know if you are covered? Here's what you need to know:

Is My Company Covered by GDPR?

The GDPR covers your company if, among other things, you:

(1) process personal data in the context of activities of an establishment in the EU regardless of whether the processing takes place in the EU; or

(2) (even if you have no establishment in EU) you process personal data of data subjects in the EU and that processing relates to

(a) the offering of goods or services to those data subjects, irrespective of whether a payment of the data subject is required; or

(b) the monitoring of those data subjects' behavior as far as their behavior takes place in the EU.

The factors to be considered in connection with (a) include the languages you use on your websites, even if they are based in the US, the currencies you accept and whether you are marketing or directing your products and services to customers in the EU.

For purposes of (b), you should ascertain whether your organization tracks natural persons on the Internet for profiling purposes, particularly in order to make decisions concerning her or him or for analyzing or predicting her or his personal preferences, behaviors and attitudes.

You are not subject to the GDPR if you are yourself a natural person in the course of engaging in purely personal or household activities.

What Kinds of Data are Covered by GDPR?

Once you have determined whether your company is covered, you should then assess which kinds of data are within the scope of the law. The GDPR covers "personal data," i.e., any information concerning an identified or identifiable natural person ("data subject"). It is important to note that the EU definition of personal data is much broader than traditional definitions of personally identifiable information under US federal and state laws. Under EU law, personal data even includes device identifiers and both static and dynamic IP addresses.

In future posts, we will explore additional concepts under the GDPR like "pseudonymized data" and "sensitive data," which have additional considerations and, in the latter case, restrictions.

The GDPR does not cover anonymous information, i.e., (1) information that does not relate to an identified or identifiable natural person; or (2) personal data that has been rendered anonymous in such a manner that the data subject is not or no longer identifiable. As noted above, this is a very high bar to meet under EU law. The GDPR also does not cover personal data of deceased persons or data concerning legal persons.

Am I a Data Controller or Data Processor?

If you are covered by the GDPR, you should determine whether you are a controller or processor.  This may vary depending on the data you process and there is not always a clear distinction. You may be both, depending on the circumstances of the processing.

A controller determines the purposes and means of the processing of personal data.

A processor processes personal data on behalf of the controller.

We will have a lot more to say about the varying obligations of controllers and processors in future posts, so stay tuned.

If I Am Covered by the GDPR, Where is my Supervisory Authority or DPA?

If your company is covered by the GDPR, your supervisory authority or Data Protection Authority (DPA) is generally in the Member State where you have your "main establishment."

  • For controllers, the main establishment is where you have your central administration unless main decisions on the purposes and means of processing of personal data take place in a different establishment. It is immaterial where the actual processing takes place. A similar rule applies for a group of undertakings (i.e., group of affiliated entities).
  • For processors, the main establishment is where you have your central administration, and if no central administration, where the main processing activities take place.
  • In cases involving a data controller and data processor, the DPA of the controller is the supervisory authority. However, the DPA where the processor has its main establishment should also participate.

Your supervisory authority may also be in the Member State where (a) data subjects reside and are substantially affected or likely to be substantially affected by your processing; or (b) a complaint has been lodged.

Where a controller or processor does not have an establishment in the EU, it must designate in writing a representative in one of the Member States where a data subject whose information it processes is located.

OK, I Get It, When Do I Start to Prepare for Compliance?

If you are covered by GDPR, now is the best time to start readiness assessment and preparation for compliance. May 2018 may feel like a long time from now, but it is just around the corner and, as we will explore in future posts, the GDPR introduces many compliance obligations unfamiliar to US companies including rights to data portability and the infamous "right to be forgotten." We will be here every step of the way and will continue with a series of posts on various aspects of GDPR compliance.

www.fkks.com

This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Tanya Forsheit
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.