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Directive does not apply to search engines

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Google is not bound by the Data Retention Directive when it comes to search engine logs, Europe's data protection committee has said. Google has used the Directive to justify keeping data, but OUT-LAW has learned that the law does not apply.

Google has come under increasing pressure in Europe to anonymise its server data, but the company says that it will wait until 18–24 months have passed before anonymising. Among its reasons for this was the Data Retention Directive.

However, a senior European data protection official told OUT-LAW today that Google cannot rely on that law as justification for its retention.

"The Data Retention Directive applies only to providers of publicly available electronic communications services or of public communication networks and not to search engine systems," said Philippos Mitletton. Mitletton works for the European Commission's Data Protection Unit, which itself is represented on the Article 29 Working Party, the committee of Europe's data protection authorities.

"Accordingly, Google is not subject to this Directive as far as it concerns the search engine part of its applications and has no obligations thereof," he said.

Google offers other services that will be caught by the Directive – notably its email service, Gmail, and its internet telephony service, Google Talk. If Google's search function were caught by the Directive, it could alarm operators of any site with a search function – i.e. most large websites – because potentially they would be similarly caught and therefore need to store details of every search conducted and the addresses of the computers that instruct each search.

The Working Party had taken issue with Google's policy of only anonymising data after 18–24 months. Google this week conceded some ground, saying that it would anonymise data after 18 months, but could extend that back to 24 months if laws anywhere in the world required them to do that.

Google had argued that the Retention Directive required it to keep the data for up to two years.

"The Data Retention Directive requires all EU Member States to pass data retention laws by 2009 with retention for periods between 6 and 24 months," said Google global privacy counsel Peter Fleischer in a letter to the Working Party this week.

"Google is therefore potentially subject (both inside and outside the EU) to legal requirements to retain data for a certain period. Since not many member states have implemented the Directive thus far, it is too early to know the final retention time periods, the jurisdictional impact, and the scope of applicability. Because Google may be subject to the requirements of the Directive in some member states, under the principle of legality, we have no choice but to be prepared to retain log server data for up to 24 months," said Fleischer.

The news that European data protection officials do not consider search queries to be covered by the legislation undermines one of Google's main justifications for keeping the data.

The company said that the information is useful to it in a business sense. It said that other people's search queries allow it to help a user refine their search and fix spelling errors. It also said that logs helped it guard against fraud.

"We believe that our decision to anonymize our server logs after 18 to 24 months complies with data protection law, and at the same time allows us to fulfill other critical interests, such as maintaining our ability to continue to improve the quality of our search services; protecting our systems and our users from fraud and abuse, and complying with possible data retention requirements," said Fleischer's letter.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Related links

Google's letter to the Working Party (pdf)
The Article 29 Working Party letter to Google (pdf)

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