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Websites could be required to retain visitor info

Even if it would break their privacy policies

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A series of legal events means that companies that have no business reason to retain documents or records may be compelled to create and retain such records just so they can become available for discovery.

Companies routinely create, maintain and store electronic records. Some records are consciously created – like memoranda, letters, spreadsheets, and even e-mails and chat or instant message communications. Other records are created inadvertently, like meta data, log records, IP history records and the like. Some information is useful to the company, and it wants to retain it, and other information is of little use, merely takes up space, creates potential liability, and represents an unwarranted threat for attack or violation of privacy. The problem for most companies in developing or maintaining a document retention/destruction policy is identifying the documents and records it wants to keep and effectively purging the ones it doesn't want. Some recent legal events have made the problem of document retention and destruction even more complicated.

A recent case involving file sharing site TorrentSpy illustrates the point. Torrentspy's privacy policy is clear and concise. It states:

TorrentSpy.com is committed to protecting your privacy. TorrentSpy.com does not sell, trade or rent your personal information to other companies. TorrentSpy.com will not collect any personal information about you except when you specifically and knowingly provide such information.

Pretty straightforward, and not too dissimilar from thousands of other website privacy policies. Such privacy policies are considered to be legally binding contracts, and the United States Federal Trade Commission, and Privacy Commissioners in Europe, Asia and other places routinely hold companies to their promises – under threat of civil and criminal prosecution or fines.

The first problem with this privacy policy – like most privacy policies – is that it's not true. Whenever you visit a website, you "involuntarily" provide "personal" information to the site operator – things like the type of browser you are using, your IP address, the physical location of that IP address, your configuration settings, and what website you may have been referred from or to, among other things.

If you are engaging in malicious, unlawful, or otherwise "actionable" conduct, the website operator may certainly attempt to use this information to identify you and discern what you are doing – the essence of "personal information". Indeed, much of what we do as forensic investigators is to use this kind of information to find people.

While net-savvy individuals know that this information is being collected and utilized, the vast majority of individuals would not say that they "specifically and knowingly" provided that information to the website. This information frequently has economic value to the website operator as well. Knowing what site referred the user may result in payments from or to the referring site under "pay per click" agreements.

Aggregated personal information is useful for advertisers, and valuable to those who collect it. So its not accurate to say that your website ONLY collects information that you voluntarily give them. A better approach to a privacy policy would include language similar to that used by, for example, Google, which specifically states:

Log information - When you use Google services, our servers automatically record information that your browser sends whenever you visit a website. These server logs may include information such as your web request, Internet Protocol address, browser type, browser language, the date and time of your request and one or more cookies that may uniquely identify your browser.

Some of this information is collected automatically as a consequence of delivering web content to the requestor. You would think that, in pursuance of its privacy policies, a company could choose not to collect or more accurately not to store or retain such information – after all, that's what they promised their customers, no?

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