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.
