EU-to-US-to-India Transfer After a Stale TIA
Helio Analytics GmbH in Berlin provides HR benchmarking. It transfers employee survey data to its US parent, Helio Inc., and to a subprocessor in Pune, India. The EU-US Data Privacy Framework is not relied on. The company uses the 2021 SCCs, but the transfer impact assessment is a two-page template from 2022. The US parent is subject to the CLOUD Act; the Indian subprocessor supports 24/7 operations and has admin access to raw data. A customer audit asks how government access requests are handled, whether data is encrypted in transit and at rest, and who holds the keys. The Indian vendor uses a shared cloud account with the parent. The DPO wants to suspend the India transfer until a new TIA is done. Sales says suspension will delay a €2m contract. The company has 45 days before contract renewal.
1. What should the TIA cover, and can Helio continue the India transfer while the TIA is updated?
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The TIA must cover the data, purposes, and sensitivity; the laws and practices of the destination country, including government access and redress; the likelihood of access; and the supplementary measures that make the transfer effective. For India, Helio must assess whether the subprocessor's admin access to raw survey data creates a foreseeable risk of government access or onward disclosure. It should also assess the shared cloud account, because the parent may be able to access Indian data and vice versa. The TIA should be specific to the vendor, data type, and access model, not a generic template.
Helio can continue only if it has current, documented measures that provide essentially equivalent protection. If the TIA cannot be completed before renewal, the safer course is to suspend raw-data access while allowing limited, encrypted support work. Sales pressure is not a legal justification. The DPO should document the decision, notify the customer, and set a remediation date. If the company continues without a valid TIA, the transfer may be unlawful and the customer audit finding will worsen.
2. Which SCC module applies to the US parent and the Indian subprocessor, and what governance gaps need fixing?
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Role mapping comes first. Helio GmbH is the EU controller. If Helio Inc. processes the data only on Helio GmbH's instructions, Module 2 (controller-to-processor) applies. If Helio Inc. is an independent controller for some purposes, Module 1 applies to that transfer. For the onward transfer to Pune, if the Indian vendor is a subprocessor, Module 3 (processor-to-processor) is likely needed, with Helio GmbH remaining accountable. The SCCs must be completed accurately, not merely attached to the contract.
Governance gaps include the shared cloud account, which blurs access boundaries; admin access to raw data; lack of a current TIA; and unclear government-request handling. Fixes include separate tenant accounts, least-privilege access, encryption with keys held in the EU, pseudonymization, logging, and a government-request policy that requires legal review and transparency where lawful. Helio should maintain a subprocessor list, audit rights, breach-notification terms, and deletion obligations. The customer audit should receive a clear map of roles, transfers, and safeguards, not just a copy of the SCCs.
3. Recommend a 45-day action plan to satisfy the customer audit without losing the €2m contract.
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Days 1-10: freeze new raw-data transfers to India, confirm roles, inventory data flows, and collect contracts. Days 11-20: complete a focused TIA for India and the US, interview the vendor, and document access controls. Days 21-30: implement quick safeguards such as EU-held keys, separate cloud tenants, MFA, least privilege, and a government-request procedure. Days 31-40: update the SCCs with correct modules, add a subprocessor schedule, and prepare an audit response pack. Days 41-45: present the plan to the customer, disclose any residual risk, and agree on a remediation timeline.
The plan should not promise that India risk is zero. It should show that Helio has identified the risk, applied supplementary measures, and will review them. If residual risk remains high, offer the customer a temporary EU-only processing option for the affected data. This protects the contract while keeping the transfer defensible. The DPO should sign off on the TIA, and sales should not agree to new data flows without privacy review.