GDPR Go-Live: The End of the Beginning

Today is May 25th. Unless you’ve been living in a cave without a hotspot for the last year, you know that means today is the go-live date for Europe’s new General Data Protection Regulation or “GDPR.” With its controversial extraterritorial reach, the GDPR has been causing much commotion around the world and along with that commotion, a whole lot of breathless hyperbole in the popular and professional trade media.

We haven’t done much writing on any of it in this space because, well, we’ve been busy doing GDPR preparedness work for our clients. And lots of it! (Article 28 anyone?) But the occasion of the go-live date has given us a brief respite, so here’s a quick run down on what’s going to happen now that the law is finally in effect, and what to do if you’ve, well, done nothing so far.

What’s going to happen on May 26^th?

We can say for certain that the sun is going to rise, the earth is going to rotate on its axis and life will go on. There’s been so much myth and hype about the GDPR it seems worth pointing all that out. More importantly, it’s also worth pointing out you’re not going to wake up tomorrow morning with the equivalent of a subpoena from an EU member-state data protection regulator in your mailbox. To date, more than half the EU member states had not adopted the GDPR into law (which doesn’t affect its validity, but does raise questions about enforcement), and in a recent survey of most of the relevant regulators, about two-thirds said they won’t be ready to start enforcement activities any time soon. Among those regulators who do feel ready, most have stated publicly that there will be few fines in 2018 unless something is very wrong.

So come dawn tomorrow, things will feel an awfully lot like any other Saturday. If your company’s been doing its GDPR homework for the last years/months that will be especially true. If not, then keep reading….

We haven’t done anything to prepare. Now what?

You have some work to do and soon. That said, we’re calling for clients newly discovering GDPR to act with thoughtful urgency, not panic.

The first thing you’ll need to do is determine whether you’re subject to the GDPR. There are two ways than can happen: direct and indirect. If it meets the requirements for being a data “controller” or “joint controller” that is “established” in the EU, your company is directly covered. If it does not meet those requirements, but does meet the requirements of a data “processor,” your company will be indirectly covered.

How Do We Know If We’re A “Controller” Who’s “Established” In the EU?

The language of the GDPR can make this a difficult question to answer, particularly with regard to the “established” element. There are, however, a few obvious tests. For instance, if you answer “yes” to any of the following questions you are likely directly covered:

• do you have a physical presence in the EU?
• do you have employees or paid contractors in the EU?
• do you sell products that are designed to meet EU market requirements (220 volt products are a simple example)
• are any of your sales and marketing activities purposefully directed at the EU market? Some examples of being purposefully directed include if you:
  • have distributors/resellers in the EU
  • accept Euros or member state currency
  • translated your website, brochures, product manuals or other collateral or documentation into member state languages
• do you monitor the behavior of customers based in the EU?
  Some examples of what it means to “monitor behavior” include:
  • use of technologies to track EU website users
  • using predictive analytics to anticipate buying patterns
  • operating affinity or loyalty programs in the EU

It Looks Like We Are a Controller Established in the EU. Are we in Trouble?

Based on what the regulators are saying about enforcement, as long as well-planned steps are taken to immediately start a compliance program, your company will probably be ok in the very near-term. Below is a brief, simplified list of what you’ll need to accomplish for GDPR compliance:

• identify and assess risks by personal data types
• identify who you share personal data with and where it’s stored
• determine which of the six GDPR-permitted reasons you are relying on to possess personal data
• update public privacy policies and internal adverse event policies and procedures, especially regarding response and notification
• be able to respond to requests from people whose personal data you hold (such as providing copies or erasing their data)
• review/amend your vendor agreements and remediate any gaps between existing terms and those GDPR requires

We are not Directly Covered. How do we Determine if we are Indirectly Covered?

This analysis is a bit easier than the direct coverage analysis, but there are still many variations and nuances. The easiest way to determine whether your company is indirectly covered is if you collect (via the phone, internet etc.) personal data (which, be forewarned, is very broadly defined under the GDPR) from your customers’ employees, clients, etc. You will also be indirectly covered as a processor if all of the following are true:

• your customers collect, for themselves or for their own upstream customers, personal data from employees, consumers or others in the EU,

then

• send all or part of that personal data (again, broadly defined) to your company no matter where it’s located including in the United States,

and

• you “process” it on behalf of that customer, noting that “processing” is also very broadly defined to include recording, organizing, structuring, storing, transmitting, adapting and the like.

We Are Indirectly Covered, What Do We Need To Do?

As with companies who newly discover they are directly covered, if you’re indirectly covered it’s time for thoughtful urgency, but not panic. As an indirectly covered entity, your company’s GDPR obligations will come in the form of so-called “flow-downs” from the obligations that directly covered entities have with respect to their vendors, agents, and sometimes even their affiliates, known under GDPR as “processors.”

Directly covered entities do have a small degree of latitude in determining which obligations to flow-down and how to do so, based on the nature and types of work you do for them. At a minimum, however, a directly covered entity will require you to enter into a written contract, or if you already have one, add an addendum, under which the directly covered entity “instructs” you in what elements of their personal data you can process and the scope of your authorization to so.

You also should expect directly covered entities to impose most of the following obligations on you (at least some of which you may be able to satisfy if you are ISO 27001 certified or receive unqualified SOC 2, Type 2 reports):

• restrict you from subcontracting without their consent
• require you to obtain confidentiality commitments from employees who are directly involved with the “processing” for that covered entity
• implement data security safeguards to protect their personal data (which may include encryption)
• assist them in meeting their own GDPR obligations to provide data subjects with access to their data and the right to have it deleted

Some processors choose to be proactive and send their own form of Data Protection Agreement or GDPR policy statement to their customers. This can be a viable strategy, but should be assessed on a case-by-case basis.