Not just expense with Safe Harbor, for it allows the FTC to trample all over
a US corporation as aninvited guest! Vwery few corporations aseem willing
to take that risk, preferring the potentiasl Binding Corporate RUles
The problem is that the Germans are pednatically correct here, bless them.
Unless you can out argue them, of course. Though you can bet that the
Spanish will see this as a revenue opportunity!
Tim Trent - Consultant
Direct: +44(0)1344 392644 Mobile:+44(0)7710 126618
email: [log in to unmask]
Marketing Improvement Limited, Abbey House, Grenville Place, Bracknell,
United Kingdom, RG12 1BP
http://www.marketingimprovement.com
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-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Charles Prescott
Sent: Friday, September 03, 2004 5:11 PM
To: [log in to unmask]
Subject: [data-protection] Query on "export" of "personal data".
Interesting question has come up in the direct marketing industry.
The major posts provide the service of National Change of Address to
citizens. You in the UK pay for it, so it is not used much. It is free in
Germany, France, the US, Canada. The consumer fills out a form at the post
with his old address and new address and the post forwards mail on to the
new address. Also, large mailers, such as publishers, catalog companies,
financial companies, etc. are encouraged to correct the addresses on their
files before mailing. This saves the post money in handling badly addressed
mail, and serves the consumer by keeping the company address databases
current. The process is this: companies provide their lists to the posts or
their licensees, who run programs that compare the files and either provide
the new addresses to the company against the current entry held by the
company. Most major posts require companies to do this within a short
window before mailing to reduce "undeliverable as addressed" items in order
for the company to qualify for various discounts.
In short, all the company gets back is a new address for someone already on
the file.
The German post's legal department is now taking the position that the
post can not send to the US the new address of someone currently on a US
company's database as this is an export of personal data to a country that
doesn't provide adequate protection.
Let us assume that the individual has previously consented to his name and
address being with the US company, perhaps by making an enquiry or being a
customer of that or another US company who has lawfully shared the name.
Leaving aside the "adequate protection" debate, I would take the position
that the individual has already consented to the export of his new address
by a combination of (i) using the NCOA service, and (ii) being a customer of
a US company abroad. In addition, doesn't the US company have an obligation
to keep the data "up-to-date", and isn't the individual's providing the new
address through this system an implied consent to assist in that? Isn't the
legal department being a little overly conservative here?
It would be absurd to think that the US companies who do use the NCOA
would join the Safe Harbor just to keep postal discounts, unless they had
Germany as a major market, which very few do. The time and expense of doing
so are too high for that.
I welcome non-Friday type comments.
Regards,
Charles Prescott
Charles A. Prescott
Vice President, International Business
Development & Government Affairs
Direct Marketing Association
1120 Avenue of the Americas
New York, NY 10036
U.S.A.
Tel. +1-212-790-1552
Fax. +1-212-790-1499
e-mail: [log in to unmask]
The DMA's 87th Annual Conference and Exhibition:
New Orleans, October 16 -20. Laissez les bons temps rouler!
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