Original URL: http://www.theregister.co.uk/2007/05/31/data_protection_letter_google/

Data protection watchdogs' letter to Google goes public

Questions length of storage time before anonymisation

By OUT-LAW.COM

Posted in Law, 31st May 2007 10:09 GMT

A letter from an influential group of privacy experts in Europe saying that Google's new privacy policies appear to breach the requirements of the EU's data protection regime was published today.

Previously, Google operated a policy of retaining search queries and identifying information, such as Internet Protocol (IP) addresses, for as long as it thought useful. In March, Google's global privacy counsel, Peter Fleischer, announced a new policy. He said that the company will keep its server log data but will make that data "much more anonymous, so that it can no longer be identified with individual users, after 18–24 months."

The letter of concern was sent to the search giant on 16 May by the Article 29 Working Party, an independent European advisory body on data protection and privacy. Google has responded with a statement that it wants to have a "constructive dialogue" with European authorities about its controversial policy.

The letter is addressed to Fleischer, based in Google's Paris office. It praises Google's willingness to engage with the data protection community and contrasts that with "some of the other leading players in the search engine community."

However, the letter continues:

Although Google's headquarters are based in the United States, Google is under legal obligation to comply with European laws, in particular privacy laws, as Google's services are provided to European citizens and it maintains data processing activities in Europe, especially the processing of personal data that takes place at its European centre.

As you are aware, server logs are information that can be linked to an identified or identifiable natural person and can, therefore, be considered personal data in the meaning of Data Protection Directive 95/46/EC. For that reason their collection and storage must respect data protection rules.

The Article 29 Working Party considers a reduced storage period for server logs generated by the users of Google services as a valuable step to improve Google's privacy policies. However, it is of the opinion that the new storage period of 18 to 24 months on the basis indicated by Google thus far, does not seem to meet the requirements of the European legal data protection framework.

The Article 29 Working Party is concerned that Google has so far not sufficiently specified the purposes for which server logs need to be kept, as required by Article 6(1)(e) of Data Protection Directive 95/46/EC. Taking account of Google's market position and ever-growing importance, the Article 29 Working Party would like further clarification as to why this long storage period was chosen. The Working Party would also be keen to hear Google's legal justification for the storage of server logs in general.

The letter also raises concerns about the cookie that Google stores on the computers of visitors who do not use their browser settings to block these small text files that allow Google to recognise a return visit from a particular computer.

The letter states:

Concerning the 'google cookie', the lifetime of this cookie, which has a validity of approximately 30 years, is disproportionate with respect to the purpose of the data processing which is performed and goes beyond what seems to be 'strictly necessary' for the provision of the service, within the meaning of Article 5(3) of the ePrivacy Directive 2002/58/EC.

The Working Party suggests that Google's policy "can be further improved" to ensure data protection compliance. It requests clarification on the extent to which the anonymised data still contain "significant information" about the user and "whether it is reversible (e.g. does Google have any means of reversing the anonymisation)."

Peter Fleischer has since said that Google is "committed to engaging in a constructive dialogue with privacy stakeholders," including the Working Party, on how to improve its privacy practices.

"We believe it's an important part of our commitment to respect user privacy while balancing a number of important factors, such as maintaining security and preventing fraud and abuse," he said in a statement.

Five days before the letter was sent to Google, Fleischer had discussed Google's reasons for remembering information about searches in Google's official blog.

He cited and explained three reasons: to improve the quality of search services; to maintain security and prevent fraud and abuse; and to comply with legal obligations to retain data.

Explaining the last of these points, Fleischer wrote that "Google may be subject to the EU's Data Retention Directive".

This Directive is not yet in force, but it will require ISPs and telcos to retain certain traffic and location data for up to 24 months. Google's email and internet telephony services are likely to be caught by the Directive, though possibly not before 2009. The Directive applies only to data that are generated or processed by providers of "publicly available electronic communications services or of public communications networks". However, even if this were interpreted so widely as to catch Google's search service, it seems unlikely that the categories of data to be retained, as defined in the Directive, could extend to the content of a search query.

The letter from the Article 29 Working Party does not refer to Fleischer's blog posting.

Meanwhile, Google could also face a privacy probe in the US, where it has agreed to buy online advertising company DoubleClick for $3.1bn. The company said that consumer regulator the Federal Trade Commission (FTC) has launched an investigation into the purchase that focuses on the privacy rights of its users.

Online advertising company DoubleClick collects a large amount of information about users' web surfing habits. Google does too, prompting questions from the FTC about how the merged firm will treat the data it collects.

The FTC action is an antitrust review, which will focus primarily on competition questions. "We are confident that upon further review the FTC will conclude that this acquisition poses no risk to competition and should be approved," said Don Harrison, senior corporate counsel at Google.

Privacy advocacy groups in the US have asked the FTC to question Google over its data collection and storage, while competitors such as Microsoft are said to have asked the body to investigate the deal on competition grounds.

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Related links

Article 29 Working Party letter (pdf)
Article 29 Working Party Resolution on Privacy Protection and Search Engines (pdf)