On the 13th of January, the Dutch Data Protection Authority (AP) openly questioned the legal use of Google Analytics in The Netherlands. In its statement, the AP implied that the use of Google Analytics might be banned in the future.
This comes after the DSB (the Austrian equivalent of AP) confirmed the use of Google Analytics to violate GDPR regulation.
We've dug a bit deeper to see what's really going on right now.
On the 14th of August 2020, someone (let's call it the 'data subject') visited a website on health topics while logged in with their credentials. The website in question used Google Analytics to track and monitor its website visitors.
A few days later, On the 18th of August 2020, noyb (an NGO for digital rights) filed a complaint with the DSB on behalf of the 'data subject'. The complaint was filed against both the website provider and Google, as the owner of Google Analytics.
The complaint argued that transferring data to Google violates GDPR regulation, as Google qualifies as an "electronic communication service provider". This means that Google can be ordered to disclose data to US intelligence services on EU citizens. This means that the personal data of EU citizens is insufficiently protected from US surveillance and therefore is in violation of GDPR regulation.
This is the critical point in the complaint. To put it bluntly: It's not about the use of Google Analytics. It’s about the transfer of your personal data to US providers.
The first complaint resulted in a decision that applies the criteria of "Schrems II". Schrems II is a landmark ruling on data transfers that makes it much harder to transfer data to the US. This ruling has largely been ignored by companies until now. In fact, noyb's complaints are attempt to get authorities to apply Schrems II strictly.
The complaint filed by noyb included multiple submissions from both sides for 1,5 years. Google argued that even if there had been a transfer, the data would not qualify as personal data because it could not be assigned to the 'data subject'. In addition, they argued that a "risk-based approach" should be taken into account, as the risk of actually having to disclose the data was very low.
The DSB ruled differently and waived most of the arguments raised by Google.
Google qualifies as an "electronic communication service provider" and can be ordered to disclose personal data. The level of protection of personal data is therefore considered to be inadequate. Additional measurements, put in place by Google, were considered to be insufficient. They could not prevent the disclosure of personal data to the US intelligence services.
Russell Ketchum, Head of Product Management of Google Analytics, responded on behalf of Google. He stated that "Google Analytics helps consumers with compliance by providing them with a range of controls and resources". He said that IP addresses could be anonymized and that data collection can be disabled and deleted (on request).
I think he completely misses the point here. In his response, he mainly talks from the website owner's point of view. He states that organizations control the data they collect. However, it’s not about website owners. It’s about website visitors. Their data should be protected, and that’s what the GDPR is created for.
The point is the transfer of data to US providers, subject to surveillance by the US government, like Google. He only addresses one sentence to this, stating that before any data is transferred to servers in the US, IP addresses are anonymized.
This still violates GDPR regulation. The DSB ruled that even anonymized IP addresses are personal data, given the potential to be combined with other digital data to identify a visitor. This is also where most privacy-friendly alternatives to Google Analytics go wrong. At Simple Analytics, we never collect your IP address, not even in an anonymized way, in contrast to other privacy-friendly alternatives.
As of June 2023, there has been no new communication on the case from the Dutch authority. But there are plenty of other developments- and they are all bad news for Google Analytics:
- the French, Italian, Norwegian, and Finnish privacy authorities all ruled against the use of Google Analytics (although the Finnish decision is yet preliminary)
- the Danish authority embraced the same position in a press release
- M_eta was ordered to stop US data transfers for Facebook and fined €1.2 billion in a high-profile case involving all European privacy authorities._
In the meantime, the EU and the US have taken steps towards a new data transfer framework. The framework is not yet fully implemented and will surely face legal challenge in the Court of Justice- most likely by Mr. Schrems himself. Bottom line, Schrems III will be a baptism by fire and it's hard to say if the new framework will survive it!
Bottom line: This is a sound decision, but not a new one. It's a confirmation of what has been ruled in July 2020, but now it seems to have more impact. Personally, I have the feeling that the law will now be enforced.
If we believe this is the case, I would expect more EU member states to follow the Austrian example. The NOYB has filed a total of 101 complaints in more EU member states and speaks of a "coordinated response". The Netherlands is the first to question the legal use of Google Analytics after Austria openly.
As Max Schrems (Honourary member of noyb) noted, there are two solutions. Either US providers will have to host foreign data outside the US, or the US adopts a proper data protection regulation.
If we fail to implement one of the above-mentioned solutions, we will be using different products across the pond in the future. Either way, this provides the opportunity for others to compete with Google and ‘Big Tech’ as a whole.
We at Simple Analytics have built a privacy-first alternative to Google Analytics. Our mission is to show organizations web analytics can be done differently by providing accurate insights whilst being GDPR compliant out-of-the-box. In addition, you never have to worry if your visitor's data is transferred to US providers, as our servers are located in The Netherlands. Give us a try.