YOUR OPTIONS FOR ACHIEVING COMPLIANCE:
Establish the facts Start by following the data trail. Do your TSPs store personal data of any of your travellers in the US? Researching is easier said than done because your TSPs may forward data to other intermediaries or use independent third parties for storage. Once you have completed this task, write to all those which do store data in the US or, indeed, any countries whose data protection falls below the requirements of the European Economic Area (EEA) – the EU plus Norway, Iceland and Liechtenstein. Tell them to provide evidence of how they make themselves compliant with EU law.
Safe Harbor
WP29 confirmed on February 3 that Safe Harbor is no longer an acceptable means of protection even though it has yet to pronounce on the adequacy of succes- sor Privacy Shield. Some TSPs, including the data consolidator Prism (a Sabre subsidiary some airlines insist corporate clients release data to in order to secure their highest discounts), still proclaimed adherence to Safe Harbor in their online privacy policies at time of writing.
Standard contractual clauses/ binding corporate rules WP29 says that, for now, it considers these remain valid mechanisms to make data transfers compliant. Standard contractual clauses are a fixed text which the data ex- porter (client) and data importer (supplier/ service provider) insert into their contract to guarantee transferred data will be treated to standards compliant with the EU Data Protection Directive. Failure to meet those standards is grounds for termination of the contract. Binding corporate rules govern how multinational corporations transfer their data internally from their entities within the EEA to those outside it. Companies which go down this route have to produce evidence to one of the EU’s data protec- tion authorities that they provide necessary oversights, staff training on data handling and numerous other protections.
30 BBT MARCH/APRIL 2016
If Privacy Shield can be made to stick, it will probably be the easiest route to data compliance
VDR recommends to its members that for now they ensure all data transfers to the US are covered by either standard con- tractual clauses or binding corporate rules. TSPs are moving that way, too. For example, BCD Travel says it is currently expanding its implementation of both model clauses and binding corporate rules. However, the future of these mechanisms is uncertain. WP29 says it will begin a review of their validity once it has reported on its assess- ment of Privacy Shield, most likely in April.
Re-visit your contracts “It’s always worth considering who owns/ controls the data, and who is responsible if there is a data control breach,” says Skuse. “The travel sector is full of inter- mediaries who either sell data or purport to ‘own’ it, entitling them to impose con- ditions on contracting parties. Contract negotiators need to carefully wrap this up to avoid data breaches which they may be blamed for.”
ISO 27001 BCD says all its data centres maintain international certification ISO 27001 for operations in security. The travel manager
Safe enough
The only countries and territories outside the European Economic Area judged by the EU to offer adequate data protection are: Andorra, Argentina, Canada, Faroe Islands, Guernsey, Isle of Man, Israel, Jersey, New Zealand, Switzerland and Uruguay.
spoken to by BBT says his organisation requires ISO 27001 of its TSPs, but this alone does not guarantee compliance with the EU Data Protection Directive.
Privacy Shield If Privacy Shield can be made to stick, it will probably be the easiest route to data compliance, but it will still require more work than the self-certification of Safe Harbor. The EC claims: “US companies wishing to import personal data from Europe will need to commit to robust obligations on how personal data is processed and individual rights are guar- anteed. The Department of Commerce will monitor that companies publish their commitments, which make them enforceable under US law.” The EC says Privacy Shield will offer
several forms of redress for EU citizens for the first time and that the US has “ruled out indiscriminate mass surveillance on the personal data transferred to the US”. Whether this will satisfy WP29 is unclear. Even if it does, Skuse warns there are likely to be additional legal challenges.
Store data only within the EU “In commercial agreements in the travel sector various clauses are often used that prohibit the export of data outside the EU,” says Skuse. Some TSPs have said they are increasing their data storage capability within the EU. However, even where this happens, European clients sometimes find their data is exported to the US anyway.
Only use EU-based TSPs Will EU law ever consider data transferred to the US adequately protected? “This could be the key issue in the end,” says Biehl. “Can we really walk down the same road? I doubt this at the moment. If TSPs can’t answer this question, I see a shift to Europe-based TSPs in future.”
Watch this space... Above all, the question of data protec- tion needs careful monitoring for further changes to a very fluid situation. If you don’t already work closely with your company’s in-house data privacy expert, now is the time to start.
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