Out-Law News | 15 Oct 2007 | 4:51 pm | 3 min. read
Last month Google's Global Privacy Counsel Peter Fleischer endorsed the Privacy Framework published by the Asia-Pacific Economic Community (APEC) in 2005, describing it as "the most promising foundation on which to build."
"Surely, if privacy principles can be agreed upon within the 21 APEC member economies, a similar set of principles could be applied on a global scale," wrote Peter Fleischer in the search giant's Public Policy Blog.
But privacy expert Dr Chris Pounder of Pinsent Masons, the law firm behind OUT-LAW.COM, has analysed the APEC rules and found that they are not only significantly more lax than those in operation in Europe, they are so broadly defined that they cannot operate as a standard at all.
"The Framework's principles were drafted in order to get agreements between diplomats – and diplomatic agreements tend to fudge important issues," wrote Dr Pounder in his analysis. "The result is that the principles are ambiguous as to their effect and are capable of a vast number of interpretations and implementations."
That ambiguity means that even on its own terms, as a proposed basis for harmonising the privacy laws of a large number of countries, the guidelines fail because they allow too much room for countries to differ, said Pounder.
There are also specific problems with the rules, according to Pounder. "There is a requirement to establish an enforcement mechanism, but this can be very low key," he wrote. He also notes that there is no requirement to establish a Privacy Commissioner to oversee compliance.
European privacy laws say that a person must be told that their data is being collected at the point of that collection. The APEC rules are more lax, though, and even allow for notice to be given after data has been collected.
"The procedures that deliver a data subject with a notice could become separate from procedures that collect personal data from a data subject," argued Pounder.
While stricter data protection regimes ban the use of collected data for purposes other than those for which it was gathered, the APEC rules allow data to be shared for "compatible or related purposes", which Pounder said gave collectors of data more room to share data.
One aspect of the guidelines that could be highly relevant to search engine companies such as Google is the fact that there are no rules about data retention. The guidelines do not mandate the deletion of data after it has stopped being useful, or after a certain time.
Google has been mired in controversy this year, as have all the major search engines, over its policies of keeping information that can be used to connect particular searches with particular individuals for a period of time.
European data protection officials have said that even Google's concession that it will delete that information after 18 months does not go far enough, and the company has faced criticism from a number of European data protection authorities.
In all, Pounder said, the APEC guidelines are not specific enough to provide a solid basis for worldwide data protection.
"If this clarity or detail fails to materialise, then the APEC Privacy Framework might still become a global standard," said Pounder. "However, it will be a standard that is at risk of describing a global privacy fig leaf, and one which has, in the long term, the potential to undermine the international transfer of personal data between APEC's economies, if data subjects lose trust in the protection it affords."
"The Privacy Framework is an important step forward – however, acknowledging that some countries are making a step forward, has to be accompanied with the recognition that the Framework could allow the taking of steps in the opposite direction," he said.
In a separate development, an international grouping of data protection authorities has agreed to participate in the creation of another global privacy standard. The body has resolved to lend its support to standards being developed by the International Organisation for Standardisation (ISO).
"While the development of privacy-related standards under the auspices of a security-oriented group is not an ideal solution for the data protection and privacy community, it is the structure that ISO has adopted, at least for the time being," said a statement from the International Conference of Data Protection and Privacy Commissioners.
"Responding to this approach from the standards community by becoming more actively involved in the standards development process is an essential step in order to ensure the development of privacy-respecting standards," it said.
The proposal for more active involvement was made by Canada's Privacy Commissioner and backed by data protection authorities from Belgium, Berlin, Ontario, Spain and Switzerland.