Understanding privacy in Europe, playing well with others
Tomás F. Serna
May 19, 2008
Time flies. It seems it was two or three days ago at the most, but in fact its been already four weeks now that I attended a really interesting conference on privacy that took place here in Madrid.
The setting was a somewhat formal one, as the event took place at the CGAE, which I guess one could translate as the Spanish national bar association. Several participants mentioned being honored by having the chance to speak at the Spanish ‘cathedral’ of Law.
Among the speakers, all people with interesting backgrounds and even more interesting things to say, I write to report about two of them: Mr. José Luis Piñar and Mr. Peter Fleischer.
It is always a pleasure and a privilege to attend any talk by Mr. Piñar, Professor of Law and former Spanish Data Protection Chief, who left office some fifthteen months ago. When Mr. Piñar speaks, the lines between a scholarly lecture and any other kind of talk blur… in a very good way. Always informative and of didactic quality. Time truly flies, which is saying something when you are dealing with any flavor of Spanish administrative law. Trust me on this one.
Mr. Fleischer is a Lawyer for Google, acting as its ‘Global Privacy Counsel’. While I had read and reported several times on some of his exchanges with EU data protection officers, this was the first time I met Mr. Fleischer in person. I thought he also gave a very informative and interesting talk. For the most part, he displayed a good sense of humor which is always a sign of intelligence as well as something to be appreciated.
Mr. Fleischer started by thanking everyone for attending, and said he was happy to be there in order to exchange views on the subject of privacy and privacy laws.
He devoted a good portion of his time showing how Google had been working lately on improving its privacy practices. While he strived to move Google away from some of the bad press they’ve been having on privacy grounds, he expressed some strong opinions on what he portrayed as very outdated European privacy laws.
For those not familiar with this matter, Spain very recently passed a very welcome Law bringing some fresh air to the local data protection arena, and that is considered to be a huge step forward by everyone involved in this field of practice.
Mr. Fleischer congratulated us legal Spanish professionals for having this new piece of legislation that places Spain with a framework that is outdated by his measure within a range of ten years, as opposed to our previous situation in which again by his measurements we would have been outdated and departed from reality by approximately twenty years. (I am afraid of doing the math and finding out how outdated we might be in ‘Internet years’…)
Google has certainly a point though, in that EU privacy laws have little regard to the fundamental underlying technical design that governs information flow on the Internet. The Net’s underlying technical infrastructure has no consideration for geographic boundaries or political borders. And this sometimes represents a huge challenge for companies with a global Internet presence and reach. I have to agree with them in this.
Mr. Fleischer also explained some of the (already public), initiatives that Google has in store for the immediate future. Google Health and the ‘Street View’ feature within Google Maps were offered as examples of useful services that could be in some way threatened by EU privacy laws. He seemed to admonish the audience a bit, on how Europe will be missing, at least in part, some features from said services. All because of our very outdated views on privacy.
I would say though that Mr. Fleischer seemed to be a little bit out of his comfort zone. Perhaps the place and setting were a bit too formal for him.
I’m sure he meant well and that he was just trying to get his point across when he asked the audience (I’d say at least 90% were lawyers), that if they really wanted to spend the next twenty years of their life making notifications to local data protection agencies… or whether they (we), wanted to do something that mattered.
The same would apply when right at the beginning of his slides he, following the introductory lines from other speakers described above, expressed his happiness about being in a cathedral of Law with the “Spanish data protection Pope”.
Or when shortly after that, he said that anyone could fell free to interrupt him and make any comment or question. I first thought that was a nice way of inviting dialogue and breaking formality. That was until seconds later he said that if at any point anyone thought he was stupid he could just raise his voice, interrupt him and say so. That it had happened to him at least once somewhere else, and that he was fine with it.
Well, I can only speak for myself, but neither do I think Mr. Fleischer is stupid, nor would I expect anyone attending this kind of event, moreover in this kind of setting, to behave him or herself in such a fashion.
Here’s a thought: As much as I like and even practice on the new, more practical and less formal way of approaching business that new technology companies have brought to the marketplace (in a former life, I had lots to do with that…), I think that along the lines of the remarks above lies at least part of the problem that has been haunting Google lately in Brussels and that has left some records of bitter interaction between their representatives and certain data protection supervising bodies.
I might be wrong, but in the very same way as one would never dare to attend say, an antitrust meeting at the FTC offering opinions about what is wrong (should that be the case), with the treble damages rule and/or letting the press know about how its officers should be doing their job, it could be perhaps argued that a somewhat relevant representative from a publicly traded company with such a high profile and interests at stake should never be found offering quotes (explicitly authorizing the audience to quote him), on whether a certain german EU data protection officer is or isn’t crazy and/or on whether this or that EU public body has the slightest clue about what the Internet is about.
All in all, it was very informative and fun too. A big thanks to Mr. Peter Fleischer for taking the time to visit Spain.
All the best, TFS
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