Whilst the reform of the EU data protection framework continues its tortuous course in Brussels' corridors of power, privacy pros in the real world are doing their best to cope with the current uncertainty. One of the ever-present sources of concern for those with data-related operations in Europe is how to overcome the restrictions affecting international data transfers in a cost-effective, sustainable and effective manner. In reality, there are many paths to follow, but choosing the right one is not always obvious—each case is different, and limited resources and time constraints often add an unwelcome degree of stress and complexity to the process.
However, although choosing the most suitable method to legitimise global data transfers requires careful consideration, there are strong signs that suggest adopting and implementing binding corporate rules (BCRs) may be a wise move. Here are some reasons why:
- Future-proofing compliance—One might speculate about whether this is an unintended effect of Edward Snowden's revelations, but the tightening of the EU policy-makers' thinking around the issue of international data flows is an inescapable fact. Precisely at a time when cloud computing, data consolidation projects and similar initiatives are making data globalisation more real than ever, in Europe we are witnessing unprecedented attempts to safeguard data internationally in accordance with our own standards. The nearly unanimous vote at the European Parliament to suspend Safe Harbor is a clear example of this. Even attempts to make the model contracts route more flexible are being carefully scrutinised. So in this climate, BCRs have emerged as the most solid alternative, and we can confidently say that BCRs will be expressly recognised as a mechanism to legitimise international data transfers under the forthcoming EU data protection framework.
- Strong backing by EU data protection authorities—The policy-makers' support for BCRs has in fact been pre-empted by the increasing level of enthusiasm for this model by the EU data protection authorities. Since the BCR concept was devised 11 years ago, the regulators' commitment to it has been a crucial factor in elevating this idea to a platform for global data protection compliance. In turn, the efforts shown by BCR-approved corporate groups to get privacy right in practice have bought over even the most sceptical authorities. As a result, not only are BCR candidates able to benefit from the legal certainty provided by BCRs, but they have an opportunity to demonstrate that they take privacy and data security seriously and be rewarded for that.
- Not just good enough for Europe—Privacy and data protection are not just a European need. Deploying a workable, consistent and legally effective global compliance programme is the ultimate goal of many privacy professionals. The good news is that BCRs can be the basis for that, and a growing number of multinationals are choosing BCRs not just as a mechanism to allow transfers from the EU but precisely as a model for global compliance. The fact that the BCR approach is being recognised by laws and regulators outside Europe is a clear sign of its worldwide value and testament to the ever-growing cooperation by privacy regulators at a global scale.
- Perfect timing—The slow progress of the ongoing EU data protection reform makes predicting the outcome of that reform a nearly impossible task. However, it is safe to assume that following the adoption of the new regime, there will be a significant increase of applications for BCR approval at the same time that data protection authorities learn to cope with their new powers and responsibilities. So given that having a BCR programme in place will bring significant benefits and help with the stronger focus on practical compliance under the new regime, there are strong tactical reasons to consider getting this type project underway now rather than waiting and being subject to nerve-racking time constraints.
- It's all about trust—Whether you are a global corporation with thousands of employees and customers dotted around the world or a cloud services vendor, you know you are doing something right when people trust you. And privacy is all about trust. Doing BCR is also about trust by regulators and stakeholders who are given the confidence to believe that whatever the policies, standards and procedures in place, people's data will be protected and their privacy will be respected. The value of that trust may be difficult to quantify, but for many companies it will be the dividing line between success and failure. This is even more the case for providers of data-related services, whose business relies entirely on that trust and for whom “BCR for Processors” or “Binding Safe Processor Rules” may become a vital part of their success strategy.
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