Best practice 11
Decide where research data may be sent¶
Practice¶
- Sending data to an AI service hands it to the provider under their terms of service.For
- Living guidelines on the responsible use of generative AI in research (2026) Recommendations for researchers 3, p. 8: uploaded input could be used for other purposes, such as training
- Dutch DPA: AI chatbot use leads to data breaches (2024) regulator: entered data is stored by the provider and leaves the organisation's control
AgainstNone recorded - The account tier and its terms decide whether inputs train a model, how long they are kept, and who else can use them.For
- Anthropic consumer terms update: training on chats by default (2025) consumer plans train by default with five-year retention; commercial terms exclude training
- Court-ordered retention of ChatGPT logs in the New York Times litigation (2025) 13 May 2025 order: consumer and standard-API logs preserved despite deletion; zero-data-retention endpoints unaffected
- DSK guidance: Artificial intelligence and data protection (2024) §2.5 para 43: training and history settings fixed in the account at setup
- Living guidelines on the responsible use of generative AI in research (2026) Recommendations for researchers 3, pp. 8-9: check privacy options, who manages the tool, where it runs
- AEPD guidance on agentic AI from a data protection perspective (2026) pp. 57-58: online service contracts do not fit the local legal regime and change unilaterally
AgainstNone recorded - Personal, confidential, or controlled-access data must only be provided to a service under a contract that fits the legal regime of the data, or must stay in an environment governed by the party responsible for the data.For
- EU General Data Protection Regulation (Regulation (EU) 2016/679) Art 6 lawful basis; Art 28 processor contract; Art 32 security; Arts 44 to 49 transfer basis
- EDPB Opinion 28/2024 on personal data in AI models (2024) para 126: each controller ensures and demonstrates the lawfulness of its own processing
- DSK guidance: Artificial intelligence and data protection (2024) §2.1 para 33: processor agreement usually required; §2.4 para 41: work accounts so staff need no private ones; §1.7 para 20: closed systems preferable
- AEPD guidance on agentic AI from a data protection perspective (2026) p. 34: check Article 28, international transfers, and retention; seek alternatives where the service is disproportionate
- EDPS decision on the European Commission's use of Microsoft 365 (2024) 2025 closure: compliance reached through renegotiated contract terms
- Living guidelines on the responsible use of generative AI in research (2026) Recommendations for researchers 3, p. 8: no upload without assurances against re-use; Recommendations for research organisations 4, p. 10: self-governed tools
- Dutch DPA: AI chatbot use leads to data breaches (2024) GP practice case: patient data entered into a consumer chatbot, treated as a data breach
- European Health Data Space Regulation (Regulation (EU) 2025/327) Art 73(1)-(2): access only in a secure processing environment; only non-personal data may leave (health-data instance)
AgainstNone recorded - An agentAgentA system built around a language model that carries out multi-step work: it plans, calls tools, reads the results, and decides what to do next. The model supplies the reasoning; the surrounding harness does the acting. Distinct from a chat model that answers one prompt at a time. using an externally hosted model sends everything it reads to the model's provider, so reading a file already discloses it.For
- A safer framework for patient data in AI-for-Science grants (2026) hook 1: agents transmit material to the external service operating them; data leaves without a deliberate upload
- AEPD guidance on agentic AI from a data protection perspective (2026) p. 52: an agent with screen access can process third parties' information for unauthorised purposes, including exfiltration to external servers
AgainstNone recorded - For an agent, the services it may send data to must be limited by its technical environment; instructions alone are insufficient.For
- AEPD guidance on agentic AI from a data protection perspective (2026) p. 34: configure which services agents may access; evaluate each service's contracts or terms of service
- CNIL and CIANum: Agentic AI and personal data protection (2026) pp. 14-15: classify actions per connected service by risk, including sending data outside the system
AgainstNone recorded
Sending personal data to an AI service is itself processing under data protection law: it needs a legal basis, a processor contract, and, for a provider outside the EU, a transfer basis. This holds even when the provider does not train on the data. For personal, confidential, or controlled-access data, use the account or deployment your institution has contracted, check how long inputs are kept and whether they are used for training, and keep such data local when no contracted route exists. Anything an agent using an externally hosted model reads goes to the provider, so keep secrets and protected data out of the directories it can read, preferably by sandboxing your agents.
If you offer an AI service, offer a tier that excludes training and long retention, processes under a contract and in a location that fit the customer's legal regime, and state plainly which legal process can reach the data. Make that tier the default for institutional customers. If your scientific service passes user data to a model provider, say which provider and under which terms, and offer a route that keeps the data in an environment the user's institution governs.
Contract the AI services used by your staff; ensure a processor agreement, exclude use of data for training, and establish the transfer basis; provide institutional accounts, and ensure no one uses a consumer account for work. State which data classes may reach which tier. Hosting in the EU at a provider under US jurisdiction does not by itself remove the reach of US legal process; decide what that means for each data class.
Reasons¶
Typing data into an AI service, or letting an agent send it, hands the data to the service provider. The user's account tier and the contract determine downstream effects: whether the input can be used to train a model and how long it is kept. For instance, consumer accounts of one provider train on inputs by default and keep them for five years; its commercial tier excludes training and keeps them for 30 days. Service providers fall under their own jurisdictions: a US court ordered another provider to keep consumer and standard-API chats that users had deleted; zero-retention customers were unaffected.
For personal data, the act of sending is already processing under data protection law. It needs a lawful basis, a processor contract, appropriate security, and a transfer basis when the provider is outside the EU. These requirements apply even if the provider never trains on the data. A regulator has treated staff entering patient data into a consumer chatbot as a data breach, although the practice had written rules against it. The EDPB and the data protection authorities of Germany, France, and Spain place the check on the organisation that deploys the service. The EDPS found the European Commission's own use of a cloud office suite under the provider's standard terms unlawful until the contract was renegotiated.
This practice does not restate data protection law or research ethics. It covers what AI changes: the decision to disclose data moves to the moment of use. These decisions are made at institutional level (e.g., via enterprise settings), by single persons (e.g., by deciding what to work on), or even autonomously (in agentic setups). What happens to the data then depends on the provider's terms and jurisdiction.
For an agent on an externally hosted model, this applies to every file it opens, every command output, and every tool result, because they enter the model's context and thus are sent to the provider. Data held under withdrawable consent must also never be committed to third-party training; that irreversible case is screened under BP10. How an agent's limits are enforced in the system, and who answers for them, is BP04.
Examples¶
- A researcher's consumer chatbot account trains on inputs by default and keeps them for five years; the same provider's institutional tier excludes training and keeps them for 30 days. The lab's governance decides which account is used for work.
- A US court orders a provider to preserve all consumer and standard-API chat logs, including ones users deleted; enterprise and zero-retention customers are excluded. A lab on a consumer account has its deleted chats kept for four months; a lab on a zero-retention contract does not.
- An employee of a general practice enters patients' medical data into a consumer chatbot against the practice's rules, and the national regulator treats it as a data breach (healthcare delivery, outside research). An institutional account under a processor agreement, or a network that blocks the consumer service, would have kept the data in.
- A social science group transcribes and codes research interviews with an AI service. The transcripts go to the institution's contracted deployment, which runs under a processor agreement with training excluded, and not to a team member's personal account.
- A coding agent asked to fix a failing script opens the project's
.envfile to check a setting. The API keys and database password in it are now in the provider's logs under the account's retention terms, and the keys have to be rotated. Keeping secrets outside the directories the agent can read prevents this. - An agent analysing survey records runs on the institution's contracted model deployment, so the records reach only a provider under contract. It can also call a web search tool; its configuration lists the services it may send data to, and the search tool receives the query only, never the records.
- Under the European Health Data Space, an agent working on permitted health data computes inside a secure processing environment and cannot move personal data out of it, to a model provider or anywhere else (health-data instance).
Sources¶
- EU General Data Protection Regulation (Regulation (EU) 2016/679). Sending personal data to a service is processing: it needs a lawful basis, an Article 9 exception for special-category data, a processor contract, appropriate security, and a transfer basis for a provider outside the EU, also when the provider does not train on the data (bp11-a3).
- EDPB Opinion 28/2024 on personal data in AI models (2024). The organisation deploying a model is a controller for its own processing and has to check the provider (bp11-a3).
- Living guidelines on the responsible use of generative AI in research (European Commission and ERA Forum, 2026). Uploaded input may be used for other purposes such as training; researchers check who runs a tool, where, and under which privacy options, and do not upload sensitive work without assurances against re-use; organisations provide tools they govern themselves (bp11-a1, bp11-a2, bp11-a3). Non-binding, and written for tools a person uses, not agents.
- EDPS decision on the European Commission's use of Microsoft 365 (2024). The provider's standard terms did not meet the institution's legal duties; compliance came from a renegotiated contract and technical measures (bp11-a3). An office suite and an EU institution, not an AI service; the decision is challenged before the General Court.
- Dutch DPA: AI chatbot use leads to data breaches (2024). Most chatbot providers store all data entered; staff entered patient data into a consumer chatbot against written rules, and the regulator treated it as a data breach (bp11-a1, bp11-a3). Outside research.
- Anthropic consumer terms update: training on chats by default (2025). Consumer accounts train on inputs by default with five-year retention; commercial terms exclude training (bp11-a2). One provider at one date.
- Court-ordered retention of ChatGPT logs in the New York Times litigation (2025). A court order overrode a written deletion promise for consumer and standard-API tiers; zero-retention tiers were unaffected (bp11-a2). US copyright litigation, outside science.
- DSK guidance: Artificial intelligence and data protection (2024). German regulators: closed systems preferable, a processor agreement, work accounts so staff need no private ones, and training settings fixed at account setup (bp11-a2, bp11-a3).
- AEPD guidance on agentic AI from a data protection perspective (2026). The deployer configures which services an agent may reach and evaluates each service's terms, Article 28 status, transfers, and retention; online service terms change unilaterally; an agent with screen access can send third parties' information to external servers (bp11-a2, bp11-a3, bp11-a4, bp11-a5).
- CNIL and CIANum: Agentic AI and personal data protection (2026). Actions classified by risk per connected service, including sending data outside the system (bp11-a5). Exploratory, non-binding.
- A safer framework for patient data in AI-for-Science grants (2026). An agent that runs code and inspects results transmits material to the service operating it, so participant-level data can leave an approved environment without a deliberate upload (bp11-a4). A commentary arguing from risk, not a measured incident.
- European Health Data Space Regulation (Regulation (EU) 2025/327). Access only inside a secure processing environment, from which no personal data may leave (bp11-a3). Health-data instance, cited as an example.
- EDPB-EDPS assessment of the US CLOUD Act (2019). A CLOUD Act order is not in itself a legal ground for transfer under Article 48 GDPR. Context for the governance tab on EU hosting at a provider under US jurisdiction; no atom rests on it.
- Microsoft France before the French Senate inquiry on public procurement (2025). A US provider's legal director could not guarantee under oath that EU-hosted data stays out of US hands. Context for the governance tab; no atom rests on it.
Change history¶
- 2026-10-08: Created from the ingestion on EU data protection and AI-provider terms (Commission living guidelines, EDPB Opinion 28/2024, and decisions and guidance from the EDPS and the Dutch, German, French, and Spanish data protection authorities), in response to challenge #33 and editor review on PR #22. New practice rather than atoms on BP04, because deciding which data may go to which service is a separate action that applies to people using AI tools as well as to agents.