In written comments, EFF urged the Council of Europe to revise its recommendation and guidelines to ensure that they promote transparency on search records requests, protect privacy vis-à-vis the government, and preserve freedom of expression rights, including readers’ rights to read information online. EFF also commented favorably on language that acknowledges that search engines play a central role as intermediaries by enabling the public to seek, impart and receive information and ideas worldwide.
Because search engines play a central role as intermediaries, search engine records contain sensitive information about a person's intellectual, political, cultural, religious, psychological, and physical (health) beliefs, conditions and actions that can be of interest to state actors and civil litigants. These search records pose the most obvious privacy threat, since they represent some of the most sensitive data about individuals. Other potential threats to personal data come in the form of subpoenas, unauthorized access, civil litigants’ requests, computer hackers, and compelled disclosure of search records to law enforcement and national security investigators.
EFF has asked the Council of Europe to:
• Recommend Member States adopt strong legal safeguards and due process before disclosure of individuals’ search records to governmental entities. Government should allow search engines to notify the person whose search record is sought.
• Ensure that search engines adopt reasonable efforts to notify the person whose search records are sought, unless search engines are prohibited from doing so by law or court order. If possible, agree to a timetable for disclosure to the party requesting data in order to provide a reasonable opportunity for the individual to file an objection with a court before disclosure.
• Ensure that transparency about the disclosure of citizens' search records pursuant to a governmental request applies to search engines. For instance, the guidelines should encourage search engines to publicly disclose an accounting of the nature and frequency of governmental requests for access to search records.
• Encourage search engine providers to offer users the option of searching anonymously on the Internet, and that search engines should enable site-wide SSL to protect users’ information and communications from eavesdropping.
In order to ensure individuals' freedom of expression rights -- especially readers' rights to read information available on the web -- EFF has asked Council of Europe to strengthen the guidelines to say:
• A search engine is not required to conduct any kind of ex ante filtering or blocking and will not be penalized for failure to do so.
• A search engine will not be held liable for failure to remove content upon an extra-judicial request, and that Member States establish processes in their national laws for timely, preliminary judicial review of challenged content.
• A search engine is permitted to clearly disclose to individuals whenever search results have been limited or affected by an action of law and/or by a self-regulatory action of the search engine, and to disclose an accounting of the nature and frequency of governmental orders for content removal, blocking, or filtering.
• A search engine does not need to conduct any kind of filtering or blocking that would constitute monitoring of its service, or affirmatively seek facts indicating illegal activity. Moreover, investigation and monitoring is likely to lead search engines to over-block in order to avoid any possibility of litigation, which means lawful content will inevitably be taken down.
• Self-regulation mechanisms should not include a requirement for a search engine to monitor and police their customers. Self-regulatory guidelines should not curtail individuals’ freedom of expression rights, as well as readers’ rights to access information free from surveillance.
We look forward to hearing back from the Council of Europe after the current meeting in Strasbourg, and hope to see these values upheld.