Data Localization Laws and Policy
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Data Localization Laws and Policy

The EU Data Protection International Transfers Restriction Through a Cloud Computing Lens

W. Kuan Hon

Countries are increasingly introducing data localization laws, threatening digital globalization and inhibiting cloud computing adoption despite its acknowledged benefits. This multi-disciplinary book analyzes the EU restriction (including the Privacy Shield and General Data Protection Regulation) through a cloud computing lens, covering historical objectives and practical problems, showing why the focus should move from physical data location to effective jurisdiction over those controlling access to intelligible data, and control of access to data through security.
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Chapter 6: Compliance and enforcement

The EU Data Protection International Transfers Restriction Through a Cloud Computing Lens

W. Kuan Hon

Abstract

• Many non-compliant transfers must exist: total likely volumes of transfers must exceed (relatively few) volumes of compliant transfers. • Ubiquity of transfers: figures on trade with non-whitelisted countries, email traffic estimates. • Relatively low transfers under mechanisms, based on numbers of Safe Harbour subscribers and national/Commission statistics – few Member State authorizations notified, possible reasons: ignorance of Restriction, authorization unnecessary, deliberate breach (resources vs transfer volumes). • Enforcement of Restriction: dearth of data subject litigation, regulatory enforcement of data protection laws generally and Restriction specifically (illustrations from Sweden, the Netherlands, Spain, Poland, Italy, Slovenia, Norway); reasons why. Most address breaches of substantive principles, not location per se. Post-Schrems enforcement action particularly Germany, France. Enforcement under GDPR. • Enforcement of breaches of mechanisms: contracts, BCRs, Safe Harbour (EU Data Protection Panel, US FTC). • Focus should instead be on compliance with substantive principles, and increasing cross-border cooperation including under GDPR. Keywords: enforcement, penalties, fines, complaints, litigation, international regulatory cooperation

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