This document provides information to help Brightidea subscribers conduct data transfer impact assessments in connection with their use of Brightidea products and services, in light of the "Schrems II" ruling of the Court of Justice for the European Union and the recommendations from the European Data Protection Board.
In particular, this document describes the legal regimes applicable to Brightidea in the US, the safeguards Brightidea puts in place in connection with transfers of subscriber personal data from the European Economic Area, United Kingdom or Switzerland ("Europe"), and Brightidea's ability to comply with its obligations as "data importer" under the Standard Contractual Clauses ("SCCs").
For more details about Brightidea’s GDPR compliance program please visit this page.
Step 1: Know your transfer
Where Brightidea processes personal data governed by European data protection laws as a data processor (on behalf of our subscribers), Brightidea complies with its obligations under its Data Processing Addendum ("DPA") available on this page.
The Brightidea subscriber DPA incorporates the SCCs and provide the following information:
- description of Brightidea’s processing of subscriber personal data (Exhibit A); and
- description of Brightidea’s security measures (Exhibit B)
Please refer to Exhibit A of our DPA for information on the nature of Brightidea's processing activities in connection with the provision of the Services, the types of subscriber personal data we process and transfer, and the categories of data subjects.
A list of all of our data sub-processors and a subscription where you can stay up-to-date on changes is available here.
Step 2: Identify the transfer tool relied upon
Where personal data originating from Europe is transferred to Brightidea, Brightidea relies upon the European Commission's SCCs to provide an appropriate safeguard for the transfer. To review Brightidea’s DPA (which incorporates the SCCs) please visit this page.
Where subscriber personal data originating from Europe is transferred by Brightidea to third-party sub-processors, Brightidea enters into SCCs with those parties.
Step 3: Assess whether the transfer tool relied upon is effective in light of the circumstances of the transfer
U.S. Surveillance Laws
FISA 702 and Executive Order 12333
The following US laws were identified by the Court of Justice of the European Union in Schrems II as being potential obstacles to ensuring essentially equivalent protection for personal data in the US:
- FISA Section 702 (“FISA 702”) – allows US government authorities to compel disclosure of information about non-US persons located outside the US for the purposes of foreign intelligence information gathering. This information gathering must be approved by the Foreign Intelligence Surveillance Court in Washington, DC. In-scope providers subject FISA 702 are electronic communication service providers ("ECSP") within the meaning of 50 U.S.C § 1881(b)(4), which can include remote computing service providers ("RCSP"), as defined under 18 U.S.C. § 2510 and 18 U.S.C. § 2711.
- Executive Order 12333 ("EO 12333") - authorizes intelligence agencies (like the US National Security Agency) to conduct surveillance outside of the US. In particular, it provides authority for US intelligence agencies to collect foreign "signals intelligence" information, being information collected from communications and other data passed or accessible by radio, wire and other electromagnetic means. This may include accessing underwater cables carrying internet data in transit to the US. EO 12333 does not rely on the compelled assistance of service providers, but instead appears to rely on exploiting vulnerabilities in telecommunications infrastructure.
Further information about these US surveillance laws can be found in the U.S. Privacy Safeguards Relevant to SCCs and Other EU Legal Bases for EU-U.S.Data Transfers after Schrems II whitepaper from September 2020. This whitepaper details the limits and safeguards pertaining to US public authority access to data and was issued in response to the Schrems II ruling.
Regarding FISA 702 the whitepaper notes:
- For most companies, the concerns about national security access to company data highlighted by Schrems II are “unlikely to arise because the data they handle is of no interest to the U.S. intelligence community.” Companies handling “ordinary commercial information like employee, customer, or sales records, would have no basis to believe US intelligence agencies would seek to collect that data.”
- There is individual redress, including for EU citizens, for violations of FISA section 702 through measures not addressed by the court in the Schrems II ruling, including FISA provisions allowing private actions for compensatory and punitive damages.
Regarding Executive Order 12333 the whitepaper notes:
- EO 12333 does not on its own “authorize the U.S. government to require any company or person to disclose data.” Instead, EO 12333 must rely on a statute, such as FISA 702 to collect data.
- Bulk data collection, the type of data collection at issue in Schrems II, is expressly prohibited under EO 12333.
For more information on the CLOUD Act, review What is the CLOUD Act? by BSA Software Alliance outlining the scope of the CLOUD Act.
The whitepaper notes:
- The CLOUD Act only permits U.S. government access to data in criminal investigations after obtaining a warrant approved by an independent court based on probable cause of a specific criminal act.
- The CLOUD Act does not allow U.S. government access in national security investigations, and it does not permit bulk surveillance
Is Brightidea subject to FISA 702 or EO 12333?
Brightidea, like most US-based SaaS companies, could technically be subject to FISA 702 where it is deemed to be a RCSP. However, Brightidea does not process personal data that is likely to be of interest to US intelligence agencies.
Furthermore, Brightidea is not likely to be subject to upstream surveillance orders under FISA 702, the type of order principally addressed in, and deemed problematic by, the Schrems II decision. Brightidea does not provide internet backbone services, but instead only carries traffic involving its own subscribers. To date, the U.S. Government has interpreted and applied FISA 702 upstream orders to only target market providers that have traffic flowing through their internet backbone and that carry traffic for third parties (i.e., telecommunications carriers).
EO 12333 contains no authorization to compel private companies (such as Brightidea) to disclose personal data to US authorities and FISA 702 requires an independent court to authorize a specific type of foreign intelligence data acquisition which is generally unrelated to commercial information. In the event that US intelligence agencies were interested in the type of data that Brightidea processes, safeguards such as the requirement for authorization by an independent court and the necessity and proportionality requirements would protect data from excessive surveillance.
What is Brightidea's practical experience dealing with government access requests?
Brightidea publishes a Transparency Report with information about government requests to access data. To date, Brightidea has never received a US National Security Request (including requests for access under FISA 702 or direct access under EO 12333) in connection with subscriber personal data.
Therefore, while Brightidea may technically be subject to the surveillance laws identified in Schrems II we have not been subject to these types of requests in our day-to-day business operations.
Step 4: Identify the technical, contractual and organizational measures applied to protect the transferred data
Brightidea provides the following technical measures to secure data:
- Data residency: Brightidea allows subscribers to select a residency location (currently either the United States or Ireland) for in-scope Subscriber data.
- Encryption: Brightidea offers data encryption at rest and in transit.
- Security and certifications: We have a formal security management program and we review our Information Security Management Program (ISMP) on an annual basis. Additional information about Brightidea’s security practices and certifications are available in Exhibit B of our DPA and on our Security site.
Brightidea’s contractual measures are set out in our Data Processing Addendum which incorporates the SCCs. In particular, we are subject to the following requirements:
- Technical measures: Brightidea is contractually obligated to have in place appropriate technical and organizational measures to safeguard personal data (both under the Subscriber DPA as well as the SCCs we enter into with subscribers and service providers).
- Transparency: Brightidea is obligated under the SCCs to notify its subscribers in the event it is made subject to a request for government access to subscriber personal data from a government authority. In the event that Brightidea is legally prohibited from making such a disclosure, Brightidea is contractually obligated to challenge such prohibition and seek a waiver.
- Actions to challenge access: Under the SCCs, Brightidea is obligated to review the legality of government authority access requests and challenge such requests where they are considered to be unlawful.
Brightidea’s organizational measures to secure data include:
- Policy for government access: Brightidea publishes and follows our Government Data Request Policy in responding to any government requests for data. To obtain data from Brightidea, law enforcement officials must provide legal process appropriate for the type of information sought, such as a subpoena, court order, or a warrant.
- Onward transfers: Whenever we share your data with Brightidea service providers, we remain accountable to you for how it is used. We require all service providers to undergo a thorough cross-functional diligence process by subject matter experts in our Security & Compliance Team to ensure our subscribers' personal data receives adequate protection. This process includes a review of the data Brightidea plans to share with the service provider and the associated level of risk, the supplier’s security policies, measures, and third party audits, and whether the supplier has a mature privacy program that respects the rights of data subjects. We provide a list of our sub-processors on our sub-processors page (subscribe so you can stay up-to-date on any changes).
- Employee training: Brightidea provides data protection training to all Brightidea staff.
Step 5: Procedural steps necessary to implement effective supplementary measures
In light of the information provided in this document, including Brightidea's practical experience dealing with government requests and the technical, contractual, and organizational measures Brightidea has implemented to protect subscribers' personal data, Brightidea considers that the risks involved in transferring and processing European personal data in/to the US do not impinge on our ability to comply with our obligations under the SCCs (as "data importer") or to ensure that individuals' rights remain protected. Therefore, no additional supplementary measures are necessary at this time.
Step 6: Re-evaluate at appropriate intervals
Brightidea will review and, if necessary, reconsider the risks involved and the measures it has implemented to address changing data privacy regulations and risk environments associated with transfers of personal data outside of Europe.
Legal Notice: Subscribers are responsible for making their own independent assessment of the information in this document. This document: (a) is for informational purposes only, (b) represents current Brightidea product offerings, services and practices, which are subject to change without notice, and (c) does not create any commitments or assurances from Brightidea and its affiliates, suppliers, or licensors. The responsibilities and liabilities of Brightidea to its subscribers are controlled by Brightidea agreements, and this document is not part of, nor does it modify, any agreement between Brightidea and its subscribers.