Prior to commencing my employment in 2012, my employer decided to enhance their data protection program with the EU-U.S. Safe Harbor certification, but then the European Commission published new privacy legislation. Upon hire, my primary directive was to decide between Safe Harbor and Binding Corporate Rules (BCRs).
First, I had to quickly come up-to-speed on European privacy law. Within six months, I added the IAPP’s CIPP/E certification to my CIPP toolbox. I felt this brought some authority to my efforts, even if only to my own confidence level.
Next, we partnered well. We had two excellent groups of consultants. One was an international consulting company we work with on a variety of projects, and the other was a European law firm. It took approximately three months to investigate the pros and cons of these two mechanisms, evaluate our current transfer processes, assess our business needs and obtain stakeholder and executive approval. We selected BCRs as they permit data transfers between our entities globally, whereas the EU-U.S. Safe Harbor is limited to data transferred to the U.S.
We retained the law firm mentioned above to guide us through this process, because they had written the overwhelming majority of approved BCRs.
BCRs are not for the faint of heart. They are an affirmative statement of taking data protection seriously. The work to get us to the point of filing an application was essentially my full-time focus for about nine months. During this time, the EU presented rules for safe processing and later developed an application.
Here’s a list of the top ten things I learned:
1) Always involve the right people
All departments who touch individual data must be involved in the process early on. The department leaders need to understand and support the initiative.
2) Be sure to keep the right people involved
This project is not one in which you can lightly tap key stakeholders on the shoulder at the beginning then send them a congratulatory e-mail when it is completed. You need key working partners who support what is happening and help carry the load.
3) Create an elevator spiel about BCRs
Privacy is confusing enough without tossing in BCRs. Develop a quick explanation that hopefully avoids the glassy-eyed look of dread. I am a self-proclaimed privacy geek and my enthusiasm about privacy is hard to contain.
4) Develop flexibility (in timelines, expectations, project management, scope, etc.)
Be prepared to adapt, revise, revisit, redo, alter, readjust and change just about everything you consider about the process. The laws, application forms, stakeholders and products may change. Given the amount of time the BCR process takes, be prepared to stamp very few things in stone. The rest is fluid—rushing, freezing and stagnating at whim.
5) Explore every data process you have that touches individual data
Identify all data your company touches, even if the data is obsolete, inactive or in storage.
6) Focus on more than just patient data (for U.S. health companies especially)
The U.S. applies data privacy to certain sectors (health, financial, minors, etc.). Do not assume that the stakeholders you work with understand that you mean not just patient data, but customers, vendors, employees and perhaps the general public.
7) Generate a master list of projects and “To-Dos”
There are so many moving parts to this process, not including the changes that may occur. Make sure you keep a list of projects—whether it is data protection projects or application-specific projects.
8) Highly prioritize that master list for what needs to be completed by the time the application is filed and what can be addressed after filing the BCRs
Sort and prioritize efficiently and with brutality.
9) Identify where BCRs sync with other data protection initiatives (HIPAA, state law, SOX, COPPA, etc.)
The very specific things that U.S. law requires us to do with various types of data fit in nicely with the EU concept of data privacy and further, into what BCRs require us to do to protect data—such as consulting agreements, audits, risk management, breach reporting, etc.
10) Just make sure new data projects pass your desk
This is a challenge outside the BCR process. Privacy is rarely at the table at project conception. But when filing the BCRs, ensure your department heads understand that the application will describe how you manage data. Any new projects must conform to this process. Be broad and comprehensive in your application to account for future developments.
We are now in the waiting period and may hear back from the EU data protection authorities if they have questions. This step of the process, leading to a completed (read “approved”) application should take about six to nine months. Meanwhile, I am working on those internal projects that could be fine-tuned now that the application has been filed.
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