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LAST UPDATED: July 1, 2021
Momentive Inc. (together with its affiliates, including without limitation Momentive Europe UC and Momentive Netherlands B.V., “Momentive”) provides this statement to assist you in determining that there is an adequate level of protection for personal data transferred to Momentive, taking into account the July 16, 2020 judgment of the EU Court of Justice (“CJEU”) in Case C-311/18, Data Protection Commissioner v Facebook Ireland Limited and Maximilian Schrems (“Schrems II”).
Momentive's technical and organizational safeguards address the CJEU’s surveillance concerns—As discussed in further detail in Section 2 of this statement, the CJEU’s concerns about transfers of data to the United States were based on the U.S. government’s collection of data under U.S. Executive Order 12333 (“EO 12333”) and under Section 702 of the Foreign Intelligence Surveillance Act (“FISA § 702”), especially “upstream” surveillance under FISA § 702. The CJEU indicated that Standard Contractual Clauses can be used for transfers of personal data to the United States where the Clauses, together with any other safeguards that may be added, provide adequate protection for the personal data in light of EO 12333 and FISA § 702. The risks posed by these U.S. legal provisions either do not apply to Momentive’s processing of personal data or can be sufficiently mitigated by technical and organizational safeguards that Momentive offers.
As of the date of this statement, Momentive has not received any directive under FISA § 702 and has no reason to believe that such a directive would be made to Momentive. The personal data Momentive processes for our customers –feedback data – is highly unlikely to be relevant to the foreign intelligence activities governed by FISA § 702. Moreover, in the event any such personal data were relevant to such an investigation, the government is more likely to seek such data through other forms of legal process (such as a search warrant approved by a judge) that do satisfy the high standards for government access to data described in the Schrems II decision. This is because it would be much faster and easier for the government to seek an order or warrant under something other than FISA § 702 than to put in place the mechanisms required for the government to serve directives on Momentive under FISA § 702.
Momentive Inc. acts, in part, as an electronic communications service (“ECS”) and also potentially a remote computing service (“RCS”) (as defined in Sections 2510 and 2711 of Title 18 U.S.C., respectively) in connection with certain services or product features we provide to customers. Momentive Inc. thus is among the large group of companies upon which the United States government could serve a targeted directive under FISA § 702. However, as the U.S. government has interpreted and applied FISA § 702, Momentive is not eligible to receive the type of order that was of principal concern to the CJEU in the Schrems II decision—i.e., a FISA § 702 order for “upstream” surveillance. As the U.S. government has applied FISA § 702, it uses upstream orders only to target traffic flowing through internet backbone providers that carry Internet traffic for third parties (i.e., telecommunications carriers). For example, see the report of the Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (July 2, 2014), pp. 35-40, available at https://fas.org/irp/offdocs/pclob-702.pdf. Momentive does not provide such Internet backbone services, as we only carry traffic involving our own customers. As a result, we are not eligible to receive the type of order principally addressed in, and deemed problematic by, the Schrems II decision.
Momentive does not and will not provide any assistance to U.S. authorities conducting surveillance under EO 12333. EO 12333 does not provide the U.S. government the ability to compel companies to provide assistance with those activities, and Momentive will not do so voluntarily. As a result, Momentive does not, and cannot be ordered to, take any action to facilitate the type of bulk surveillance under EO 12333 the Schrems II decision deemed problematic.
Momentive provides a range of technical and organizational measures that further defeat the core deficiencies cited in the Schrems II decision referred to above in Sections (a) and (b) of this Section 2 (bulk surveillance under FISA § 702 and bulk interceptions under EO 12333).
Momentive encrypts all data at rest in our data centres using AES 256 based encryption. Additionally, Momentive encrypts all data in motion using (i) RSA with 2048 bit key length based certificates generated via a public Certificate Authority, for communications with entities outside Momentive’s data centres, and (ii) RSA 256 certificates generated via Internal Certificate Authority, for all the data within the data centre. These encryption efforts prevent the acquisition of European Data in an intelligible form in the event a governmental authority or other third party gains physical access to the hosting and computing environment or transmission mechanisms (e.g., servers, wires and cables). They also prevent U.S. law enforcement or intelligence authorities from being able to tamper with or tap into the data transfers between the two end-points that while such data is in transmission or in storage.
Some Momentive customers (for example, customers of GetFeedback Digital) have their data stored only in the European Union. In those instances the data is not stored in the US and only very minimal access to that data occurs in the United States for very limited purposes (for example, to provide customer support on request or limited engineering access may be required to resolve technical issues/bugs or build out systems).
Momentive also maintains strict administrative, technical, and physical procedures to protect information stored on its servers. Access to personal information is limited through login credentials to those employees who require it to perform their job functions. In addition, Momentive uses access controls such as multi-factor authentication, Single Sign On, access on an as-needed basis, strong password controls, and restricted access to administrative accounts.
Additionally, as an ECS/RCS, Momentive is subject to the U.S. Electronic Communications Privacy Act, 18 U.S.C. § 2701, et seq. (“ECPA”), which provides protection to Momentive’s customers. For example, ECPA prohibits governmental entities from seeking information about customers of services like Momentive unless such governmental entities first obtain appropriate legal process, including a court order or search warrant for information other than basic subscriber information. Likewise, both FISA and ECPA provide Momentive’s customers with redress against the U.S. government (including monetary damages or disciplinary actions against the relevant governmental authorities) if it improperly obtains information about them. See 18 U.S.C. § 2712.
Further, Momentive’s longtime outside legal counsel is experienced in responding to U.S. governmental requests for user data, including U.S. national security requests under FISA § 702. It is Momentive’s policy to escalate any such requests to Momentive’s own internal compliance team and, as necessary, to such outside counsel for review. Where appropriate, Momentive intends to use available legal mechanisms to challenge demands for data access using FISA § 702 (including any non-disclosure provisions or orders attached thereto) in the unlikely event Momentive receives such a demand. The demand would then receive review by a U.S. tribunal (the FISA Court).
Momentive also recognizes that an order to provide data access under FISA § 702 would require Momentive to notify our customers that we could no longer comply with the Standard Contractual Clauses, allowing them to terminate their agreement with us and suspend data flows to us. We have never needed to issue such a notice.