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Hello all,
please bear with me, this might be a long post, but Im having some trouble with the US department of commerce... which is odd because Im not even in the US.... but thats where all the problems start....
We are a UK company that has for the past two years being doing business with US companies. Part of the service we offer is "Safe Harbor certification", with the final step being registration with the Department of Commerce.
Today we received notification from the Department of Commerce that we were no longer able to provide this service.... even though they have accepted us in the past. They emailed our clients directly saying:
"If you have received this message, your company has designated COMPANY NAME as an independent recourse mechanism available to investigate unresolved privacy-related complaints with regard to your company’s Safe Harbor self-certification. The U.S. Department of Commerce does not recognize COMPANY NAME as a valid independent recourse mechanism (i.e. third party dispute resolution provider) for Safe Harbor purposes, primarily because COMPANY NAME is not a U.S.-based organization. In short, your company must arrange to have another third party to serve as its independent recourse mechanism. Included below for your reference is a description of the options available. Please notify us as to your company’s selection."
To this end we have begun the process of registering a Delaware LLC, which will be 100% owned by the UK company.
My question is, given this, and the fact that the Delaware LLC will not employ anyone yet, or conduct any business, but will be registered and have a US address, does it meet the criteria of being a US based organisation, and will this allow us to convince the Department of Commerce that we are now part based in the US, thus eligible to continue.
Obviously I am a little miffed. We offer this service at less than half the price of our competitors, who have a very good relationship with the US dept commerce team dealing with this.
I know you guys are not lawyers, but just wanted to get a feel for what you thought?
Their actual policy, which they quoted later was as follows:
Dispute Resolution
Your company must select a third party to serve as its independent recourse mechanism (IRM) for Safe Harbor-related dispute resolution. A company cannot be certified to Safe Harbor if the IRM is not already in place. For the purposes of the self-certification form, the term 'organization human resources data' refers exclusively to personal information about the company's own employees, past or present, collected in the context of the employment relationship. The following conditions apply to the selection of IRMs:
o If a company does not receive ‘organization human resources data’, it must either:
A. Use a specific U.S.-based private sector developed dispute resolution mechanism:
1) A mechanism provided as part of a program, such as those managed by BBB, TRUSTe or DMA, that incorporates the Safe Harbor Framework; or
2) An outside arbitration and mediation mechanism, such as those offered by the American Arbitration Association and JAMS, that agrees to hear each complaint in compliance with the Framework
B. Use the EU Data Protection Authorities (DPAs) and the Swiss Federal Data Protection and Information Commissioner (FDPIC) to investigate unresolved complaints
o If a company does receive ‘organization human resources data’, it must either:
A. Use the EU DPAs and the Swiss FDPIC to investigate unresolved complaints involving 'organization human resources data', and use a specific private sector developed dispute resolution mechanism to investigate unresolved complaints involving other types of data (e.g. client and customer data)
B. Use the EU DPAs and the Swiss FDPIC to investigate all unresolved complaints, regardless of the type of data involved
please bear with me, this might be a long post, but Im having some trouble with the US department of commerce... which is odd because Im not even in the US.... but thats where all the problems start....
We are a UK company that has for the past two years being doing business with US companies. Part of the service we offer is "Safe Harbor certification", with the final step being registration with the Department of Commerce.
Today we received notification from the Department of Commerce that we were no longer able to provide this service.... even though they have accepted us in the past. They emailed our clients directly saying:
"If you have received this message, your company has designated COMPANY NAME as an independent recourse mechanism available to investigate unresolved privacy-related complaints with regard to your company’s Safe Harbor self-certification. The U.S. Department of Commerce does not recognize COMPANY NAME as a valid independent recourse mechanism (i.e. third party dispute resolution provider) for Safe Harbor purposes, primarily because COMPANY NAME is not a U.S.-based organization. In short, your company must arrange to have another third party to serve as its independent recourse mechanism. Included below for your reference is a description of the options available. Please notify us as to your company’s selection."
To this end we have begun the process of registering a Delaware LLC, which will be 100% owned by the UK company.
My question is, given this, and the fact that the Delaware LLC will not employ anyone yet, or conduct any business, but will be registered and have a US address, does it meet the criteria of being a US based organisation, and will this allow us to convince the Department of Commerce that we are now part based in the US, thus eligible to continue.
Obviously I am a little miffed. We offer this service at less than half the price of our competitors, who have a very good relationship with the US dept commerce team dealing with this.
I know you guys are not lawyers, but just wanted to get a feel for what you thought?
Their actual policy, which they quoted later was as follows:
Dispute Resolution
Your company must select a third party to serve as its independent recourse mechanism (IRM) for Safe Harbor-related dispute resolution. A company cannot be certified to Safe Harbor if the IRM is not already in place. For the purposes of the self-certification form, the term 'organization human resources data' refers exclusively to personal information about the company's own employees, past or present, collected in the context of the employment relationship. The following conditions apply to the selection of IRMs:
o If a company does not receive ‘organization human resources data’, it must either:
A. Use a specific U.S.-based private sector developed dispute resolution mechanism:
1) A mechanism provided as part of a program, such as those managed by BBB, TRUSTe or DMA, that incorporates the Safe Harbor Framework; or
2) An outside arbitration and mediation mechanism, such as those offered by the American Arbitration Association and JAMS, that agrees to hear each complaint in compliance with the Framework
B. Use the EU Data Protection Authorities (DPAs) and the Swiss Federal Data Protection and Information Commissioner (FDPIC) to investigate unresolved complaints
o If a company does receive ‘organization human resources data’, it must either:
A. Use the EU DPAs and the Swiss FDPIC to investigate unresolved complaints involving 'organization human resources data', and use a specific private sector developed dispute resolution mechanism to investigate unresolved complaints involving other types of data (e.g. client and customer data)
B. Use the EU DPAs and the Swiss FDPIC to investigate all unresolved complaints, regardless of the type of data involved
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