Google faces EU crackdown over privacy violations

January 2012's privacy policy comes under fire.

The EU is considering a "co-ordinated crackdown" on Google after it ignored requests from regulators to delay the imposition of its new privacy policy until they had cleared it for compliance with data protection law.

The policy was announced last January (though it only came into effect in March), and allowed Google to mix personal data from all its subsidiaries, particularly Youtube, which had hitherto been cordoned off. The new internal user profiles this enabled the company to create are of great value to advertisers, but the company also trumpeted the improved experience it could offer users, saying at the time:

Our privacy policies have always allowed us to combine information from different products with your account — effectively using your data to provide you with a better service. However, we’ve been restricted in our ability to combine your YouTube and search histories with other information in your account. Our new privacy policy gets rid of those inconsistencies so we can make more of your information available to you when using Google.

The EU didn't agree, and asked the company to hold off implementation until it had held an investigation on whether it complied with EU data protection law. The probe, which began in mid-March, finally reported back in October, and found that the new policy did indeed breach EU law. The French data protection commission, the CNIL, which led the investigation, had recommended a number of changes, such as easier opt-outs for advertising. But the company insists its policy already complies with EU law.

As a result, the CNIL is organising a co-ordinated response to Google, since, as the head of the commission told the Wall Street Journal on Monday, "we're better armed when we speak with one voice than when each country takes its own steps".

The EU hasn't played the situation brilliantly. The fact that its investigation only reported back in October, over six months after it began, is proof of severe regulatory overreach; and it would have been an unnecessary and unsupportable restraint on Google to have asked it to hold off on what was a major business decision for that entire period.

Nonetheless, Google appears to be continuing a trend amongst Silicon Valley — exemplified by Facebook in its squabble with the Irish data protection commission over facial recognition data — of assuming that the regulations of the countries it operates in don't apply to it. The EU has considerably stricter data protection laws than the US, and while some of them, such as the ill-fated cookie directive, are worthy of being ignored, others provide genuine protection for the consumer.

Google maintains that "we have engaged fully with the CNIL throughout this process and will continue to do so," but the EU's privacy group will vote on whether to take action against the company at the end of February.

Photograph: Getty Images

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

Photo: Getty
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The three big mistakes the government has made in its Brexit talks

Nicola Sturgeon fears that the UK has no negotiating position at all. It's worse than she thinks. 

It’s fair to say that the first meeting of the government’s Brexit ministers and the leaders of the devolved legislatures did not go well.

Scotland’s Nicola Sturgeon told reporters outside that it had all been “deeply frustrating”, and that it was impossible for her to undermine the United Kingdom’s negotiating position as “I can’t undermine something that doesn’t exist, and at the moment it doesn’t seem to me like there is a UK negotiating strategy”.

To which cynical observers might say: she would, wouldn’t she? It’s in Sturgeon’s interest to paint the Westminster government as clueless and operating in a way that puts Scotland’s interests at risk. Maybe so, but Carwyn Jones, her Welsh opposite number, tends to strike a more conciliatory figure at these events – he’s praised both George Osborne and David Cameron in the past.

So it’s hard not to be alarmed at his statement to the press that there is still “huge uncertainty” about what the British government’s negotiating position. Even Arlene Foster, the first minister in Northern Ireland, whose party, the DUP, is seen as an increasingly reliable ally for the Conservative government, could only really volunteer that “we’re in a negotiation and we will be in a negotiation and it will be complex”.

All of which makes Jeremy Corbyn’s one-liner in the Commons today that the government is pursuing neither hard Brexit nor soft Brexit but “chaotic Brexit” ring true.

It all adds to a growing suspicion that the government’s negotiating strategy might be, as Jacqui Smith once quipped of Ed Miliband’s policy review, something of “a pregnant panda – it's been a very long time in the making and no one's quite sure if there's anything in there anyway”.

That’s not the case – but the reality is not much more comforting. The government has long believed, as Philip Hammond put when being grilled by the House of Lords on the issue:

"There's an intrinsic tension here between democratic accountability of the government and effective negotiation with a third party. Our paramount objective must be to get a good deal for Britain. I am afraid will not be achieved by spelling out our negotiating strategy."

That was echoed by Theresa May in response to Corbyn’s claim that the government has no plan for Brexit:

 “We have a plan, which is not to give out details of the negotiation as they are being negotiated”

Are Hammond and May right? Well, sort of. There is an innate tension between democratic accountability and a good deal, of course. The more is known about what the government’s red lines in negotiations, the higher the price they will have to pay to protect. That’s why, sensibly, Hammond, both as Foreign Secretary during the dying days of David Cameron’s government, and now as Chancellor, has attempted to head off public commitments about the shape of the Brexit deal.

But – and it’s a big but – the government has already shown a great deal of its hand. May made three big reveals about the government’s Brexit strategy it in her conference speech: firstly, she started the clock ticking on when Britain will definitely leave the European Union, by saying she will activate Article 50 no later than 31 March 2017. Secondly, she said that Brexit meant that Britain would control its own borders. And thirdly, she said that Brexit meant that Britain would no longer be subject to the judgements of the European Court of Justice.

The first reveal means that there is no chance that any of 27 remaining nations of the European Union will break ranks and begin informal talks before Article 50 is triggered.

The second reveal makes it clear that Britain will leave the single market, because none of the four freedoms – of goods, services, capital or people – can be negotiated away, not least because of the fear of political contagion within the EU27, as an exit deal which allowed the United Kingdom to maintain the three other freedoms while giving up the fourth would cause increased pressure from Eurosceptics in western Europe.

And the third reveal makes it equally clear that Britain will leave the customs union as there is no way you can be part of a union if you do not wish to accept its legal arbiter.

So the government has already revealed its big priorities and has therefore jacked up the price, meaning that the arguments about not revealing the government’s hand is not as strong as it ideally would be.

The other problem, though, is this: Theresa May’s Brexit objectives cannot be met without a hard Brexit, with the only question the scale of the initial shock. As I’ve written before, there is a sense that the government might be able to “pay to play”, ie, in exchange for continuing to send money to Brussels and to member states, the United Kingdom could maintain a decent standard of access to the single market.

My impression is that the mood in Brussels now makes this very tricky. The tone coming out of Conservative party conference has left goodwill in short supply, meaning that a “pay to play” deal is unlikely. But the other problem is that, by leaving so much of its objectives in the dark, Theresa May is not really laying the groundwork for a situation where she can return to Britain with an exit deal where Britain pays large sums to the European Union for a worse deal than the one it has now. (By the way, that is very much the best case scenario for what she might come back with.) Silence may make for good negotiations in Brussels – but in terms of the negotiation that may follow swiftly after in Westminster, it has entirely the opposite effect. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.