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.