got privacy?  Musings on the state of Privacy in a connected world.
 
By Raul Mendez, LLM Information Technology Law, Digital Privacy Professional.
The European Commission referred the UK to the Court of Justice for non-conforming rules in the confidentiality of electronic communications.  It is alleged that Electronic Communications are intercepted and the UK law condones the practice.

The Commission’s contention is that the UK law does not meet the consent to interception requirements and the supervision necessary by its DPA’s.  Due to the UK’s failure to comply with directives 2002/58/EC and directive 95/46/EC internet providers are engaging in behavioral advertising without the users’ knowledge or consent.  The targeting is based on the users’ browsing history and e-mail activity. 

This action did not take place in a vacuum.  The Commission’s infringement procedure started in April 2009.  Since April 2009 there have been two prior releases made public by the Commission (IP/09/570) and (IP/09/1626) regarding this action. 

The action submitted to the court lists three different violations:

·         There is no independent national authority to supervise the interception of some communications.

·         The UK’s current law fails to provide an accurate definition for consent.  

·         Under UK law it is only illegal to intercept the communications when it is limited to ‘intentional’ interception only.   Whereas EU law requires Members States to prohibit and to ensure sanctions against any unlawful interception.

Interception has emerged as a point of contention in other member States. On October 2nd, 2010 the German “Düsseldorfer Kreis” announced that WebPages, which participate in Google Analytics, are violating the privacy laws.  Google Analytics is designed to intercept and transfer users’ IP addresses. 

It is fit to point out that Google has engaged in negotiations with the “Düsseldorfer Kreis” for many months.  Google has also created a Google Analytics Opt-out Browser Add-on in response to the authorities concerns.  With the add-on partial IP address are transferred rather than the entire address.  However, the authorities have said it is not enough.

The “Düsseldorfer Kreis” has given Google an eight week deadline for compliance.  If Google does not change the tactics, the authorities will take action against operators who condone Google analytics.

In the UK referral and the Google analytics case, action is not brought directly against Google or other parties operating outside of the European Union.  Those present in the jurisdiction are made to respond.  I believe the privacy authorities are trying to change the industry by applying pressure to providers.

If you would like to contact Raul, either email raulmendez1@earthlink.net  or call 206.264.0849 begin_of_the_skype_highlighting206 264 0849
 


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