Speaking to weekly technology law podcast OUT-LAW Radio, Fleischer said that it is
interesting to hear the views of the committee of Europe's privacy
watchdogs the Article 29 Working Party, but that the matter is not
up to them.
"Remember the Data Retention Directive comes out of the security
side of government, not the data protection side," said Fleischer.
"So it's interesting to me to hear what an official from the data
protection world thinks about data retention, but it's like asking
somebody who works for the railroad what they think of airline
regulation. It's just not their field."
Google has been embroiled in controversy over the fact that it
stores records of what users have searched for along with internet
protocol addresses that could be used to identify the searcher.
It said earlier this year that it would anonymise those records
after between 18 months and two years. The Working Party objected
and asked it to keep records along with potentially identifying
information for a far shorter time. Google reduced that time to 18
months.
Google said that it had to keep the records because the Data
Retention Directive demanded it, but as OUT-LAW.COM recently
revealed, the Article 29 Working Party said that the Directive does
not apply.
"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," Philippos
Mitletton, who works for the European Commission's Data Protection
Unit, which itself is represented on the Article 29 Working Party,
told OUT-LAW.COM. "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.
Fleischer said that he believed that the security part of
European government was the relevant department, but even the
office of the Commissioner for Justice, Freedom and Security said
that the Directive does not apply to search logs.
"The Data Retention Directive only covers providers of public
electronic communications services or networks and it does not
therefore cover providers of information society services. Search
engines are providers of information society services rather than
public electronic communication services/networks and are therefore
outside the scope of the Directive," a spokeswoman for the
Commissioner for Justice, Freedom and Security told OUT-LAW.
"Moreover search queries are content, and not traffic or
location data, and the Data Retention Directive does not cover
content. The Commission has no plans to make search engines retain
search queries," she said.
The Directive may even be irrelevant, though, since Fleischer
said that his company would pursue its own policy irrespective of
what EU law demanded on retention. "I would point out that even if
the Data Retention Directive were repealed tomorrow, our decision
on the factors that went into the right period to retain server
logs, the decision to keep them for 18 months and then to anonymise
them, it would be the same decision even if data retention were
repealed tomorrow," he said.
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