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Before sending business or personal data to an AI service, require a documented data map and written answers. The vendor should identify every recipient and access location, its role for each purpose, the contract and transfer mechanism covering each cross-border disclosure, retention and deletion rules, model-training use, security controls, and its response to incidents or government demands. For EEA personal data, this diligence supports—not replaces—the GDPR requirements for a lawful basis, minimisation, security and a processor agreement.
This guide is focused on EEA data under the GDPR, with related EU AI Act questions. UK, US state and other national rules require separate analysis. Vendor terms, subprocessors, adequacy decisions and regulatory guidance can change, so save the answers, contract versions and subprocessor lists you relied on and re-check them at renewal.
Start with the complete data path
A server-region label is not a data-flow map. Under the European Data Protection Board (EDPB) approach, an international transfer can involve a GDPR-subject controller or processor making personal data available to another organisation outside the EEA. A provider may host content in the EEA while support, engineering, security or subprocessors access it elsewhere. Map the recipient entities and access routes, not just the primary data centre. See the EDPB’s international data transfers guide.
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Ask for a product-specific diagram or inventory covering the service you will actually buy, including its region and subscription tier. Record the answer in a table like this for every flow:
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| Item to record | Question for the vendor |
|---|---|
| Input data | What prompts, files, personal information, identifiers, telemetry, feedback, support material and logs are received? |
| Derived data | Does the service infer, profile or otherwise create information from customer content or usage? |
| Output data | What generated text, images, code, embeddings, safety events or other outputs are stored or sent onward? |
| Recipient | Which legal entity receives or can access each category, and what function does it perform? |
| Location and route | In which country is the data stored, processed, supported or remotely accessed? |
| Control | Can administrators configure logging, region, retention, human review or data sharing? |
Request the current data-processing terms, retention schedule, configuration documentation and subprocessor list as evidence. “Hosted in Europe” is not a sufficient answer if a separate organisation outside the EEA can access the content.
Identify every legal entity and subprocessor
Obtain the contracting company, processing affiliates, subprocessors, support locations and any parent or group companies with access. For each, ask for its country, function, data categories, access method and whether access is persistent, exceptional or limited to support tickets. Ask whether engineers or support staff can connect from outside the selected hosting region, and whether access is recorded and approved.
The list should be current and operationally useful. Ask:
- How much advance notice will the vendor give before adding or replacing a material subprocessor?
- Can you object, suspend the affected service or terminate if a change creates an unacceptable transfer?
- Which subprocessors receive raw prompts or files, and which receive only metadata or pseudonymised identifiers?
- Are backups, abuse-monitoring systems, customer-support tools and crash-reporting services included?
Keep a dated copy of the list and the notice terms. A later change can alter the transfer analysis even when the product name and main hosting region stay the same.
Clarify the vendor’s GDPR role and contract
Ask the vendor to state whether it is a processor, controller or both for each purpose. A vendor might process prompts on your instructions while acting as a controller for fraud prevention, service analytics or product improvement. Do not accept a single label that ignores those separate purposes.
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Review the data-processing agreement (DPA) alongside the service terms. Check that it documents:
- your documented instructions and the permitted purposes and data categories;
- confidentiality duties for personnel;
- technical and organisational security measures;
- assistance with access, deletion, correction, assessments and regulator enquiries;
- subprocessor appointment, notice and objection procedures;
- audit or assurance information; and
- return or deletion of data at the end of the service.
Where the recipient is a processor, an appropriate processing contract is still required even when an international-transfer mechanism is in place. Transfer rules add to ordinary GDPR duties; they do not replace lawful processing, minimisation, security or processor contracting.
Match each recipient to a transfer mechanism
For every recipient outside the EEA, ask the vendor to name the legal route, the parties covered and the evidence supporting it. Do not rely on the vendor’s country of incorporation alone.
| Possible route | Questions and evidence to request |
|---|---|
| Adequacy decision | Which destination decision applies? Does it cover this recipient, data and purpose? If the destination is the United States, is the specific commercial organisation participating in the EU-US Data Privacy Framework? How does the vendor monitor whether the decision remains in force? |
| Standard Contractual Clauses (SCCs) | Provide the signed clauses, selected module, named transfer parties and completed annexes. Explain which technical, organisational and contractual measures accompany them. |
| Other Article 46 safeguard | Is the route binding corporate rules, an approved code of conduct, certification or another safeguard? Show that it applies to the actual receiving entity and this transfer. |
| Article 49 derogation | Which specific exception is relied on, why is the transfer necessary, and how is its exceptional nature controlled? Ask how often it is used rather than accepting it as a routine pathway. |
The EDPB’s guide lists adequacy decisions for particular destinations and limits its United States entry to commercial organisations participating in the EU-US Data Privacy Framework. Verify the named entity’s current status and the scope of the decision in the EDPB guidance. The EDPB describes Article 49 derogations as exceptional; they should not become the normal operating route.
The European Commission adopted the modernised SCCs on 4 June 2021, replacing the former Directive-era sets. Use the Commission’s SCC page to confirm the current modules and documentation. A vendor should identify the module that matches the relationship—for example, controller-to-processor or processor-to-processor—rather than sending an uncompleted, generic form.
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Test whether safeguards work in the destination
Ask for the vendor’s transfer-impact assessment, or an equivalent analysis, for each destination and recipient. The assessment should address relevant foreign law and practice, including whether public authorities could demand access in a way that undermines the safeguards. The EDPB’s approach, following the Court of Justice’s 2020 Schrems II judgment, is case by case: if the mechanism is not effective in context, supplementary measures are needed. See the EDPB transfer guidance.
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Ask concrete questions about any claimed protection:
- Who controls encryption keys, and can the vendor process the content in readable form?
- Which fields remain visible to support, safety or model operations?
- Does pseudonymisation prevent the recipient from re-identifying the people, or can the vendor obtain the additional information?
- Are privileged-access requests logged, reviewed and limited by role?
- What contractual commitments require the recipient to challenge or narrow an unlawful demand?
Encryption or pseudonymisation is not an automatic solution. Its value depends on key custody, what the service must see to operate and which data remain accessible.
Ask exactly how AI data is used
Get a written answer about prompts, uploaded files, outputs, ratings, feedback and support conversations. Ask whether each is used to train or improve a shared model, a vendor model, a private model or safety systems. Clarify whether an opt-out is available, whether it is enabled by default, whether it is contractually binding, and whether it covers every subprocessor and region.
Separate model-improvement use from abuse-monitoring logs and human review. Ask how long those records remain, who can view them and whether the setting applies to data already placed in a training or evaluation pipeline. The current official GDPR materials establish minimisation and security duties, but they do not create a universal AI-vendor training default; the answer must come from the vendor’s current terms and configuration.
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Set retention, deletion and backup requirements
Require separate periods for prompts, outputs, operational logs, safety and fraud records, support tickets, indexes, embeddings and backups. Ask what event starts each period and whether an administrator can shorten it. A statement such as “we delete your data” is incomplete without the scope and timing.
Confirm the deletion workflow:
- How does a customer request delete or return content?
- How is the instruction propagated to subprocessors and replicated stores?
- When do encrypted backups expire or become inaccessible?
- Are legal holds, security investigations or abuse records excluded, and for how long?
- Can the vendor provide a deletion or return record suitable for an audit?
Make the agreed periods and exceptions contractual. No single retention period is universal for AI services, so a vendor’s generic privacy notice is not a substitute for product-specific terms.
Demand security evidence proportionate to the data
Ask for details rather than a certificate name alone. Cover encryption in transit and at rest, tenant isolation, identity and access management, privileged access, key management, logging, vulnerability handling, secure development, incident response and resilience. Match the controls to the sensitivity, volume and regulatory impact of the data you intend to submit. The EDPB confirms that necessary security remains part of GDPR compliance.
Request an independent assurance report or comparable evidence, its coverage period and exceptions, and an explanation of how the controls apply to the AI product and its subprocessors. The NIST AI Risk Management Framework can provide a useful vocabulary for discussing AI risks, but no single framework or certificate proves that a particular transfer is lawful.
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Put the incident process in the contract and playbook. Ask for the notification deadline after the vendor becomes aware of a breach, the information supplied, evidence-preservation duties, a customer contact, cooperation with regulator and affected-person obligations, and the process for updating an incomplete report. Confirm whether the vendor can identify affected prompts, files, accounts and subprocessors.
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For government or law-enforcement requests, ask whether the vendor will notify you where legally permitted, challenge or narrow an overbroad demand, and disclose only what it must. Ask where the request is received and which entity responds. The EDPB’s final guidance on GDPR Article 48 explains that a third-country judgment or administrative decision is not automatically recognised or enforceable in Europe; an international agreement may provide a basis, while other GDPR transfer grounds still need consideration. See the EDPB Article 48 announcement.
Separate EU AI Act questions from GDPR transfers
Ask the vendor how it classifies its role and what documentation it supplies for your deployment. A provider established outside the EU can still fall within the AI Act when its system output is used in the EU. That jurisdictional question is separate from whether a transfer of personal data satisfies the GDPR.
Ask which transparency duties apply to the service, who must perform them and what implementation support the vendor provides. The European Commission’s Article 50 FAQ addresses transparency for direct AI interactions and marking of certain generated or manipulated outputs. The requirements apply from 2 August 2026, with a limited 2 December 2026 date for specified marking obligations for qualifying systems already on the market before 2 August. Applicability depends on the system, role and use case; do not treat an AI Act answer as a substitute for transfer analysis.
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Your organisation remains responsible for decisions assigned to it as controller or deployer. Ask how the vendor will support:
- data-subject access, deletion and correction requests;
- records of processing and data-flow updates;
- data-protection or transfer-impact assessments;
- audits and evidence collection;
- changes to subprocessors, regions and model-use settings; and
- secure export, migration and service termination.
Agree named contacts, response targets and the format of evidence. Save each answer with the service version, region, date and contract revision so a renewal review can detect material change.
Use one scorecard for every AI vendor
When comparing services, score the same evidence-based dimensions rather than marketing claims:
- Data categories, derived information and minimisation controls.
- Recipient entities, subprocessors, countries and remote-access paths.
- Role allocation, DPA quality and customer instructions.
- Transfer mechanism and proof for every destination.
- Destination-law assessment and supplementary safeguards.
- Training, improvement, human-review defaults and opt-out controls.
- Retention, deletion, backup and deletion-record behaviour.
- Security evidence, privileged access and incident response.
- Government-request notification and challenge procedures.
- Support for GDPR rights, assessments and applicable AI Act duties.
Mark an item unresolved when the vendor gives only a general policy, omits a recipient, or refuses to identify the governing entity. Resolve the gap, limit the data, change the deployment or choose a different service before production use. Re-run the scorecard when the vendor changes its contract, subprocessor chain, hosting region or model-data setting.
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Common answers that should not close the review
- “We are GDPR compliant.” Ask which entity, purpose, contract, transfer route and evidence that statement covers.
- “Your data stays in the EEA.” Ask about support, engineering, subprocessors, backups and remote access.
- “We use standard clauses.” Ask for the signed module, annexes, parties and destination assessment.
- “We do not train on customer data.” Ask about outputs, feedback, safety logs, human review, opt-out scope and data already in pipelines.
- “We have strong encryption.” Ask who holds keys, what the service can read and how privileged access is controlled.
The practical decision is whether the documented flow, contractual role, transfer mechanism, safeguards and operational controls match the data and purposes you propose. If any material answer is missing, treat that as a procurement risk to resolve—not as proof that the service is safe or unlawful.
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