by Juan Robin II
It should be quite obvious for anyone that knows me that I’m not a lawyer, and therefore that what follows is not legal advice. For anyone who doesn’t know me: I’m not a lawyer, I’m certainly not your lawyer, and what follows is definitely not legal advice.
With that out of the way, I wanted to give you some bits of information that might feed into your GDPR planning, as they come up more from the marketing side than the pure legal interpretation of your obligations and responsibilities under this new legislation. While most legal departments will be considering the direct impacts of the GDPR on their own operations, many might miss the impacts that other companies’ (namely, in this case, Google’s) compliance actions have on your data.
But I might be getting a bit ahead of myself: it’s quite possible that not all of you know what the GDPR is, and why or whether you should care. If you do know what it is, and you just want to get to my opinions, go ahead and skip down the page.
What is the GDPR?
The tweet-length version is that the GDPR (General Data Protection Regulation) is new EU legislation covering data protection and privacy for EU citizens, and it applies to all companies offering goods or services to people in the EU.
Even if you aren’t based in the EU, it applies to your company if you have customers who are, and it has teeth (fines of up to the greater of 4% of global revenue or EUR20m). It comes into force on May 25. You have probably heard about it through the myriad organizations who put you on their email list without asking and are now emailing you to “opt back in.”
In most companies, it will not fall to the marketing team to research everything that has to change and achieve compliance, though it is worth getting up to speed with at least the high-level outline and in particular its requirements around informed consent, which is:
“…any freely given, specific, informed, and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.”
As always, when laws are made about new technology, there are many questions to be resolved, and indeed, jokes to be made:
Can you recommend a GDPR expert?
Can I have their email address?
— Adam Cleevely (@ACleevely) May 2, 2018
But my post today isn’t about what you should do to get compliant — that’s specific to your circumstances — and a ton has been written about this already:
My intention is not to write a general guide, but rather to warn you about two specific things you should be doing with analytics (Google Analytics in particular) as a result of changes Google is making because of GDPR.
Unexpected consequences of GDPR
When you deal directly with a person in the EU, and they give you personally identifiable information (PII) about themselves, you are typically in what is called the “data controller” role. The GDPR also identifies another role, which it calls “data processor,” which is any other company your company uses as a supplier and which handles that PII. When you use a product like Google Analytics on your website, Google is taking the role of data processor. While most of the restrictions of the GDPR apply to you as the controller, the processor must also comply, and it’s here that we see some potentially unintended (but possibly predictable) consequences of the legislation.
Google is unsurprisingly seeking to minimize their risk (I say it’s unsurprising because those GDPR fines could be as large as $4.4 billion based on last year’s revenue if they get it wrong). They are doing this firstly by pushing as much of the obligation onto you (the data controller) as possible, and secondly, by going further by default than the GDPR requires and being more aggressive than the regulation requires in shutting down accounts that infringe their terms (regardless of whether the infringement also infringes the GDPR).
This is entirely rational — with GA being in most cases a product offered for free, and the value coming to Google entirely in the aggregate, it makes perfect sense to limit their risks in ways that don’t degrade their value, and to just kick risky setups off the platform rather than taking on extreme financial risk for individual free accounts.
It’s not only Google, by the way. There are other suppliers doing similar things which will no doubt require similar actions, but I am focusing on Google here simply because GA is pervasive throughout the web marketing world. Some companies are even going as far as shutting down entirely for EU citizens (like unroll.me). See this Twitter thread of others.
Consequence 1: Default data retention settings for GA will delete your data
Starting on May 25, Google will be changing the default for data retention, meaning that if you don’t take action, certain data older than the cutoff will be automatically deleted.
You can read more about the details of the change on Krista Seiden’s personal blog (Krista works at Google, but this post is written in her personal capacity).
The reason I say that this isn’t strictly a GDPR thing is that it is related to changes Google is making on their end to ensure that they comply with their obligations as a data processor. It gives you tools you might need but isn’t strictly related to your GDPR compliance. There is no particular “right” answer to the question of how long you need to/should be/are allowed to keep this data stored in GA under the GDPR, but by my reading, given that it shouldn’t be PII anyway (see below) it isn’t really a GDPR question for most organizations. In particular, there is no particular reason to think that Google’s default is the correct/mandated/only setting you can choose under the GDPR.
Consequence 2: Google is deleting GA accounts for capturing PII
It has long been against the Terms of Service to store any personally identifiable information (PII) in Google Analytics. Recently, though, it appears that Google has become far more diligent in checking for the presence of PII and robust in their handling of accounts found to contain any. Put more simply, Google will delete your account if they find PII.
It’s impossible to know for sure that this is GDPR-related, but being able if necessary to demonstrate to regulators that they are taking strict actions against anyone violating their PII-related terms is an obvious move for Google to reduce the risk they face as a Data Processor. It makes particular sense in an area where the vast majority of accounts are free accounts. Much like the previous point, and the reason I say that this is related to Google’s response to the GDPR coming into force, is that it would be perfectly possible to get your users’ permission to record their data in third-party services like GA, and fully comply with the regulations. Regardless of the permissions your users give you, Google’s GDPR-related crackdown (and heavier enforcement of the related terms that have been present for some time) means that it’s a new and greater risk than it was before.
Action: Audit your GA profile and implementation for PII risks:
- There are various ways you can search within GA itself to find data that could be personally identifying in places like page titles, URLs, custom data, etc. (see these two excellent guides)
- You can also audit your implementation by reviewing rules in tag manager and/or reviewing the code present on key pages. The most likely suspects are the places where people log in, take key actions on your site, give you additional personal information, or check out
Don’t take your EU law advice from big US tech companies
The internal effort and coordination required at Google to do their bit to comply even “just” as data processor is significant. Unfortunately, there are strong arguments that this kind of ostensibly user-friendly regulation which incurs outsize compliance burdens on smaller companies will cement the duopoly and dominance of Google and Facebook and enables them to pass the costs and burdens of compliance onto sectors that are already struggling.
Regardless of the intended or unintended consequences of the regulation, it seems clear to me that we shouldn’t be basing our own businesses’ (and our clients’) compliance on self-interested advice and actions from the tech giants. No matter how impressive their own compliance, I’ve been hugely underwhelmed by guidance content they’ve put out. See, for example, Google’s GDPR “checklist” — not exactly what I’d hope for:
So, while I’m not a lawyer, definitely not your lawyer, and this is not legal advice, if you haven’t already received any advice, I can say that you probably can’t just follow Google’s checklist to get compliant. But you should, as outlined above, take the specific actions you need to take to protect yourself and your business from their compliance activities.