a.    Data Processing Contracts
  • i.    When personal data is transferred from the EU to the United States only for processing purposes, a contract will be required, regardless of participation by the processor in the Privacy Shield.
  • ii.    Data controllers in the European Union are always required to enter into a contract when a transfer for mere processing is made, whether the processing operation is carried out inside or outside the EU, and whether or not the processor participates in the Privacy Shield.  The purpose of the contract is to make sure that the processor: 
  • 1.    acts only on instructions from the controller; 
  • 2.    provides appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alternation, unauthorized disclosure or access, and understands whether onward transfer is allowed; and 
  • 3.    taking into account the nature of the processing, assists the controller in responding to individuals exercising their rights under the Principles. 
  • iii.    Because adequate protection is provided by Privacy Shield participants, contracts with Privacy Shield participants for mere processing do not require prior authorization (or such authorization will be granted automatically by the EU Member States), as would be required for contracts with recipients not participating in the Privacy Shield or otherwise not providing adequate protection.
b.    Transfers within a Controlled Group of Corporations or Entities
  • i.    When personal information is transferred between two controllers within a controlled group of corporations or entities, a contract is not always required under the Accountability for Onward Transfer Principle.  Data controllers within a controlled group of corporations or entities may base such transfers on other instruments, such as EU Binding Corporate Rules or other intra-group instruments (e.g., compliance and control programs), ensuring the continuity of protection of personal information under the Principles.  In case of such transfers, the Privacy Shield organization remains responsible for compliance with the Principles. 
c.    Transfers between Controllers
  • i.    For transfers between controllers, the recipient controller need not be a Privacy Shield organization or have an independent recourse mechanism.  The Privacy Shield organization must enter into a contract with the recipient third-party controller that provides for the same level of protection as is available under the Privacy Shield, not including the requirement that the third party controller be a Privacy Shield organization or have an independent recourse mechanism, provided it makes available an equivalent mechanism.