net.wars: My IP address, my self
by Wendy M Grossman | posted on 11 April 2008
Some years back when I was writing about the data protection directive, Simon Davies, director of Privacy International, predicted a trade war between the US and Europe over privacy laws. It didn't happen, or at least it hasn’t happened yet.
The key element to this prediction was the rule in the EU's data protection laws that prohibited sending data on for processing to countries whose legal regimes aren't as protective as those of the EU. Of course, since then we've seen the EU sell out on supplying airline passenger data to the US. Even so, this week the Article 29 Data Protection Working Party made recommendations about how search engines save and process personal data that could drive another wedge between the US and Europe.
The Article 29 group is one of those arcane EU phenomena that you probably don't know much about unless you're a privacy advocate or paid to find out. The short version: it's a sort of think tank of data protection commissioners from all over Europe. The UK's Information Commissioner, Richard Thomas, is a member, as are his equivalents in countries from France to Lithuania.
The Working Party (as it calls itself) advises and recommends policies based on the data protection principles enshrined in the EU Data Protection Directive. It cannot make law, but both its advice to the European Commission and the Commission's action (or lack thereof) are publicly reported. It's arguable that in a country like the UK, where the Information Commissioner operates with few legal teeth to bite with, the existence of such a group may help strengthen the Commissioner's hand.
(Few legal teeth, at least in respect of government activities: the Information Commissioner has issued an opinion about Phorm indicating that the service must be opt-in only. As Phorm and the ISPs involved are private companies, if they persisted with a service that contravened data protection law, the Information Commissioner could issue legal sanctions. But while the Information Commissioner can, for example, rule that for an ISP to retain users' traffic data for seven years is disproportionate, if the government passes a law saying the ISP must do so then within the UK's legal system the Information Commissioner can do nothing about it. Similarly, the Information Commissioner can say, as he has, that he is "concerned" about the extent of the information the government proposes to collect and keep on every British resident, but he can't actually stop the system from being built.)
The group's key recommendation: search engines should not keep personally identifiable search histories for longer than six months, and it specifically includes search engines whose headquarters are based outside the EU. The group does not say which search engines it studied, but it was reported to be studying Google as long ago as last May. The report doesn't look at requirements to keep traffic data under the Data Retention Directive, as it does not apply to search engines.
Google's shortening the life of its cookies and anonymizing its search history logs after 18 months turns out to have a significance I didn't appreciate when, at the time, I dismissed it as insultingly trivial (which it was): it showed the Article 29 working group that the company doesn't really need to keep all that data for so long.
One of the key items the Article 29 group had to decide in writing its report on data protection issues related to search engines (PDF) is this: are IP addresses personal information?
It sounds like one of those bits of medieval sophistry, like asking how many angels can dance on the head of a pin. In the dial-up days, it might not have mattered, at least in Britain, where local phone charges forced limited usage, so users were assigned a different IP address every time they logged in.
But in the world of broadband, where even the supposedly dynamic IP addresses issued by cable suppliers may remain with a single subscriber for years on end. Being able to track your IP address's activities is increasingly like being able to track your library card, your credit card, and your mobile phone all at the same time.
Fortunately, the average ISP doesn’t have the time to be that interested in most of its users.
The fact is that any single piece of information that identifies your activities over a long period and can be mapped to your real-life identity has to be considered personal information or the data protection laws make no sense.
The libertarian view, of course, would be that there are other search engines. You do not actually have to use Google, Gmail, or even YouTube. But if all search engines adopted Google's habits the choice would be more apparent than real.
Time was when the US was the world's policeman. With respect to data, it seems that the EU has taken on this role. It will be interesting to see whether this decision has any impact on Google's business model and practices. If it does, that trade war could finally be upon us.
If not, then Google was building up a vast data store just "because we can."
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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).