Do I need to present a GDPR banner to IP addresses outside of GDPR regions? The context of my question comes from this comment: The problem with solving GDPR compliance with country codes is, it is not in general sufficient to determine if a user is covered by the GDPR. The GDPR requires you to comply with certain practices for data pertaining to people who are citizens or residents of EU countries. it doesn't specify that you only have to comply if their computer or IP address reports an EU country code. I as a European permanent resident could be using a US computer terminal at an internet cafe at the moment to log in to an account. That doesn't automatically mean my data aren't protected by the GDPR. To give even more context, until I read this, I was under the impression that &quot;GDPR banners&quot; only need to be presented to users within the European Union/within regions with GDPR laws. Here is my reply to their comment: I'm really surprised to hear this. The GDPR FAQ (is this official?) says it applies to &quot;anyone in EU territory.&quot; Their What is GDPR page says it applies to organizations that &quot;target or collect data related to people in the EU.&quot; Cookiebot charges extra to conditionally show their banner based off of location (maybe that's only [useful] for CCPA). Do you have an official source for your statement? Is their interpretation correct? I want to know the technically correct answer and the &quot;in practice&quot; answer; bear with me on this example of the difference (if this is super confusing, please ignore it. My main question is the previous paragraph): Let's suppose I'm technically correct and I only have to show banners to people in GDPR regions. VPNs could hypothetically make that irrelevant because VPNs can change your IP address, allowing someone physically in the EU to have an IP address of someone outside the EU. If I need to present these VPN users with a banner, I have no choice but to show the banner to everyone: I'll have no way of knowing what region their IP address comes from. Let's suppose the company of the website is in California.
Your VPN scenario is why you have to show the banner to everyone. If you somehow knew beyond any doubt that someone was not in the EU, then you would not have to show a banner, but because you can't verify that, you should always show the banner. Doing so also protects against accidentally violating a similar law in another country; the GDPR is the best-known privacy law, but it is far from the only one. It's good practice to ask for people's permission before collecting their information anyway.
The law in every country where your service is available prevails. That means that if your servers are in Estonia, your file storage is in Lithuania, your company is in Switzerland, you are in France, you hold Thai citizenship, your users are in the USA and the signal transits through the U.K., Belgium, Germany, Canada and Poland then you are subject to the laws of each and every one of them. In addition, if China has reason to believe that the stored files contain matters relating to their citizens then they can take an interest. And so on and so forth ... A country has jurisdiction wherever it wants to have jurisdiction subject to the limits of and its ability to actually enforce its laws. What you are proposing is certainly illegal in many countries and you need to seek professional legal advice - not rely on strangers on the internet.
IANAL, and as @GeorgeBailey suggests, you should ask one. That said, some aspects of your question are directly addressable with what we know. Does US law states anything about this? Yes. Federally this falls under the Wiretap Act, 18 U.S.C. §2511. Workplace monitoring generally falls under either the "System Administrator Exception" or under Consent. In general, continuing past a banner constitutes consent. Does company policy enforcement with such a warning over ride the right to not be subject to surveillance? In general, yes. You don't need to use the companies network if you don't want to consent - and they don't need to hire you if you don't want to use their network. But it's their network, and their rules apply. There are some nuances, and courts have found that the wording of the notice has made a difference in some cases, but overall, if the systems are properly posted with banners, then the employer may capture communications. See the "Bannering and Consent" section of this article from cybertelecom.org, e.g.: Even if no clicking is required, a user who sees the banner before logging on to the network has received notice of the monitoring. By using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). Note that stored data is covered by different laws than communications. It's a nuance. Is it ethical to sniff all the data without giving any other warning than the logon banner? "Ethical" is a very different question than "Legal", and largely more subjective. Most employers require signed consent for monitoring as a condition of employment, and use banners thereafter. That is ethical by my definition, in that it meets or exceeds the requirements of the law, and does not mislead or use subterfuge. The tone of your question suggests you find it distasteful, and therefore probably it violates your personal code of ethics.
That a company (C) has a website that can be accessed from a given county does not mean that the company operates in that country. If C is located in country A, markets and advertises to country A, offers products designed to appeal in country A, has its site only in the primary language of country A, uses servers located in country A, and has all its assets and physical offices in country A, it is not operating in country X, even if a few people from X do business with C over its web site. Country X may have laws which claim to apply to C or its web site. It will find it hard to enforce those laws, particularly if owners and officers of X do not travel to X. It will find it hard to extradite anyone for violations of the laws of X unless those actions are also crimes under the laws of A. If X is a major, powerful country such as the US, the UK, or the EU it may be able to get A to enforce its court orders, or to use its influence over the banking system to impose penalties on C. If X is North Korea, or even Brazil, it is probably out of luck. Thus the management of C needs worry primarily about the laws of A, and to a lesser extent the laws of major countries that make some effort to enforce their laws outside their own borders, such as the GDPR, or certain US laws. It probably has little reason to worry about the laws of other countries. If A is itself a major country that can easily resist any pressue from X, C has even less reason to worry. If C does significant business in countries D and E, and particularly if it opens physical offices in D or keeps assets in E, it will have much more reason to worry about the laws of D and E. If it does advertising in the D &amp; E markets, this also gives C more reason to be concerned with their laws. There is always some risk of X finding a way to enforce its laws, but the risk is small.
Maybe this changes something, maybe not. But at first glance, yes, avoiding US-based vendors does help comply with Schrems II. They need not be EU-based. Definition of an international data transfer The GDPR unfortunately does not define what an international transfer is, and just explains when they may be lawful: Art 44: Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country […] shall take place only if, subject to the other provisions of this Regulation, the conditions laid down in this Chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country […] to another third country […]. […] This has been interpreted, in particular by the official EU SCCs and by EDPB guidance, to imply two roles: the data exporter, and the data importer. Per those EDPB guidelines, a transfer occurs when three criteria are fulfilled together: The data exporter is subject to GDPR (e.g. as a controller via Art 3, or as a processor via an Art 28 data processing contract). The exporter discloses or makes available personal data to the importer. The importer is in a &quot;third country&quot; (for EU GDPR: anything outside the EU/EEA). Note that these importer/exporter aspects are independent from roles like &quot;controller&quot; or &quot;processor&quot;. It also does not depend on where in the world the exporter is situated. Applying this to your scenario How does this apply to your scenario? I am assuming Alice Inc is subject to the GDPR (criterion #1). Now, Alice Inc can process personal data, and that's not an international transfer, even if Alice Inc is in the US (or any other third country). The general GDPR rules apply, such as the requirement to implement appropriate technical and organizational measures to ensure compliance and security of processing operations. If Alice Inc engages data processors to process personal data on Alice Inc's behalf, then this would fulfil criterion #2 (disclosure to a third party). For example, hosting providers generally act as data processors. Any other kind of data sharing (e.g. to other data processors) would also fall under this category. Tricky in an US context: while employees would be agents of Alice Inc and would not be separate recipients, contractors/freelancers would also be potential data importers. If those data importers are based in the EU/EEA, then criterion #3 is not fulfilled and there's no international transfer. For example, using an EU-based hosting providers would sidestep Chapter V of the GDPR completely. If those data importers are based outside of the EU/EEA, then criterion #3 is triggered and we have an international transfer. Lawfulness of international data transfers When there is an international transfer, it must be adequately protected. In order of decreasing priority: country has an EU adequacy decision appropriate safeguards for a group of companies: Binding Corporate Rules (BCRs) Standard Contractual Clauses (SCCs) Art 49 specific situations What SCCs and BCRs do is to translate enough of the GDPR from statutory law into a contract to ensure adequate protection. But to be effective, they must actually be enforceable, and the data importer must actually be able to comply with those rules. In Schrems II, the CJEU found that the US (at that time) did not offer an adequate level of data protection, and that SCCs are probably invalid as well since importers cannot comply with both the SCCs and with US surveillance laws. Before using SCCs, it is effectively necessary to perform a transfer impact assessment (TIA) analyzing, among other things, the legal context of the importer's country. It may be possible to defuse this, for example by using supplemental security measures like end-to-end that prevent unlawful use of the data even if it falls into the wrong hands. However, such measures also tend to prevent intended use, especially in a cloud context. In the DPC Ireland decision against Meta Ireland (PDF), the DPC finds: 7.202 In summary, therefore, I am satisfied (and I so find) that: (1) US law does not provide a level of protection that is essentially equivalent to that provided by EU law; (2) Neither the 2010 SCCs nor the 2021 SCCs can compensate for the inadequate protection provided by US law; and (3) Meta Ireland does not have in place any supplemental measures which would compensate for the inadequate protection provided by US law. 7.203 Accordingly, in making the Data Transfers, I find that, subject to the analysis contained at Section 8 below, Meta Ireland is infringing Article 46(1) GDPR. Implications of using non-US vendors As already mentioned, using EU-based data processors avoids the international transfer problem due to the way how international transfers are defined. Even if an international transfer occurs, that might not be a problem. Some countries have an EU adequacy decision, for example Canada, Israel, or South Korea. While there would nominally be an international data transfer that needs to be disclosed e.g. in a privacy notice, there is no additional bureaucracy required. In other countries, transfer tools like SCCs might work. A TIA might show that that the issues discussed in the Schrems II decision and the DPC decision wouldn't apply there. But isn't that a contradiction? You correctly point out a problem with the GDPR's approach to data transfers: This would however have little effect on the access to the data, in that if US law enforcement turned up at the offices of Alice Inc. they could be required to hand over the data and their access to the data will not be changed in any way by the location of the web hosting. Yes, this is arguably a loophole. However: If the US-based Alice Inc is a data processor in behalf of another controller, that controller would likely be violating the GDPR by transferring personal data to Alice. If Alice Inc is a data controller: while this might not be a violation of the Chapter V rules on international data transfers, such a scenario could be argued to be an Art 24 or Art 32 violation instead (requirement to ensure compliance and security). When Alice Inc transfers personal data to data importers, that is less visible to data subjects, and outside of their immediate control. However, when Alice Inc collects data on data subjects, that is more visible to data subjects, in particular through an Art 13 or Art 14 privacy notice. That notice must also contain the identity of the data controller, which would disclose that Alice is US-based, which may enable to data subjects to make more informed choices. This won't help Meta While moving to non-US data processors can be a sensible compliance approach for many companies, it is less useful for multinationals like Meta. In this context, Meta is an Irish data controller who engages platform and development services from an American company. Even if Meta Ireland tries to perform all GDPR-covered processing activities outside the US, it's actual corporate structure situates some processing activities such as administration tasks in the US and other third countries. If my above analysis is correct, it would have been easier for Meta to comply with GDPR if the US-based Meta company were the data controller.
The cookie consent requirement comes from the ePrivacy Directive, not from the GDPR. While the GDPR defines consent, cookie consent is required regardless of whether the cookie actually contains personal data. Instead, it says we can access information stored on an end users device under the following circumstances. Technical access to the information is used for the sole purpose of performing a transmission over a network, e.g. using a browser cache. Accessing the information is strictly necessary for providing a service explicitly requested by the user, e.g. session cookies or a consent-declined cookie. The user has given consent to the access, where consent is defined by the GDPR (freely given, informed, specific, …). The first scenario likely doesn't apply because your cookies aren't likely to be “technical storage or access” in the sense of ePrivacy, and because the tracking cookies wouldn't be used for the sole purpose of carrying out a transmission. The second scenario doesn't apply because tracking cookies are not strictly necessary to interact with the webshop, as evidenced by the possibility to opt out. The service explicitly requested by the user is the webshop or website, not the A/B testing. This only leaves consent as possible grounds for storing or accessing information on the user's device. It is already the storing or access that is covered by ePrivacy, not only later use as a persistent identifier. Your suggestion – to first set the cookie and then delete it if it shouldn't have been set – is more compliant than many set-ups I've seen, but is still technically non-compliant. It is also likely to fail in practice under non-ideal network conditions: if the request to see whether GDPR applies times out, or if the user closes the browser tab before the cookie will be deleted, the tracking cookie will remain without consent. I would instead suggest to consider the following points. It seems that by itself, Optimizely Web cannot be used in a compliant manner since it doesn't provide sufficient control over how cookies are managed. Thus, you should avoid loading such tracking scripts unless consent has been given, or unless this processing falls outside of EU/UK law. Currently, you defer loading of tracking scripts until you know if you have to ask for consent. This can be avoided if you always ask for consent :) This can also be avoided if you load the tracking scripts from a server that can independently determine whether the requests comes from the EU. For non-EU requests and for users with opt-in, the server can return the original tracking scripts. Otherwise, the server returns a dummy script. This server can be independent from your website's hosting. By combining the jurisdiction decision with the loading of the script, one roundtrip is saved and latency is reduced. Finally, no one is forcing you to use Shopify, and ePrivacy/GDPR is not required to accommodate their limitations. You do have different choices: use Shopify, at the cost of slow pages and limited A/B tests use a different A/B test provider that can be used without setting cookies use edge computing to do stuff in between of the browser and the original server use a different webshop platform ignore EU laws Well, one of them is clearly unethical. But you do have choices, and which choice you take is a business decision. Slow pageloads and consent banners are likely costing you conversions, but Shopify might be providing massive value that outweighs all that.
If you are purely a designer (and not contracted for the daily operation of the site), the answer is "no". GDPR Article 4 defines the "roles" responsible for complying with GDPR, and there are two: Controller and Processor. The Controller is the one who calls the shots. In particular: Decides what personal data to process. This is usually the owner of the web site. The Processor is the one that actually does the processing. This is usually some company providing some sort of data processing service (e.g. SaaS, PaaS, etc.). The relationship between the Processor and the Controller must be contractual. The contract is called a DPA (Data Protection Agreement or Data Processing Addendum). As a designer, you don't fit into any of these roles. If your contract with the client is silent on liability for GDPR compliance, then you have no liability. This goes for projects completed both before and after the May 25 deadline. Of course, if there are GDPR clauses in your contract, then you must fulfil them just as have to fulfil any other contractual obligation. But unlike the controller and the processor, there are no automatic legal liability for a designer or programmer.
GDPR is not a blanket ban on the handling of personal data. It is a set of guidelines when and how data may be processed and stored. Documenting the compliance with a deletion request is one of many purposes for which some data may be retained after a deletion request. Others would be past contractual obligations, legal documentation requirements, and even a balance of 'legitimate interests' of the processors and the data subjects. The processor might be able to argue that fraud/abuse prevention is such a legitimate interest. What if I want to create a service that does let users enter their friends' email addresses, and send those friends an email invitation to the service? Get a specialist lawyer on staff who can check your exact business processes. A web site like this cannot possibly give you a full explanation of the pitfalls.