by Lionel de Souza
On May 26th, the European working party on data protection established by article 29 of the 1995 European Directive on Data Protection (the "Working Party") sent letters to the three main search engine providers, Google, Microsoft and Yahoo!, to express its concern about how the search engine providers protect the online privacy of their users.
These letters follow a number of exchanges that have taken place over the past two years between the Working Party and the companies. The process started with the Working Party’s March 2008 opinion on search engines, which was later followed by a questionnaire to search engine providers and a hearing in February 2009.
In response to the Working Party’s opinion, Google, Microsoft and Yahoo! all publicly announced amendments to their respective policies regarding the term of retention and anonymization of user data. While these modifications generally have been welcomed as improvements of search engine practices, the Working Party still considers them insufficient. Overall, the Working Party points to:
(1) the insufficient level of anonymization of data implemented by search engines or the lack of complete information to appreciate the appropriateness of such measures; and
(2) the excessive term of retention of user data (especially in consideration of possible cross-referencing).
Based on these elements, the Working Party states that it "cannot conclude that [these companies comply] with the European Data Protection Directive" and "urges" them "to review their anonymization claims and make the process verifiable."
To do so, the Working Party recommends that all three search engine providers implement and submit to an auditing process which would be conducted by external and independent third parties. It is interesting to note that such an auditing procedure does not rely on any specific legal ground imposed by the European data protection legislation and that the search engines are therefore under no obligation to implement such a procedure. If they did agree to an audit, however, a number of questions would arise, such as the adequate frequency at which audits should be conducted or the publicity of the results of the audits.
Finally, the Working Party, taking into account the "strong international component of this debate" sent copies of the three letters to the FTC (as well as the European Commission Vice-President in charge of Justice, Fundamental Rights and Citizenship – Viviane Reading) to share its concerns and to request an inquiry of the compliance of the behaviors with Section 5 of the Federal Trade Commission Act which prohibits "unfair or deceptive acts or practices in the marketplace".
In a general context of increased attention in the European general public with regards to issues of privacy, the reactions by the search engines and the FTC to the issues raised will be closely scrutinized.
The Working Party’s letters to can be found here.