But experts said that because the ICO believed assurances from Google in 2010 that it had accidentally intercepted signals as it took pictures of Britain’s streets for its Google Maps service, the chances of a successful prosecution were now tiny. Officials then ordered Google to destroy the data, so wiping out evidence that could be used to prosecute the firm under the Data Protection Act or other privacy laws.
At the time the ICO argued it was right to destroy the data because “there does not seem to be any reason to keep the data concerned for evidential purposes”.
“It is rather difficult for the ICO to now turn the clock back or indeed prove anything,” said Chris Pounder, a data protection expert with the training firm Amberhawk.
The ICO acted this week after the Federal Communications Commission (FCC), an American watchdog, published a detailed investigation of Street View, which found that Google’s claims it did not know its vehicles intercepted WiFi data were untrue.
A lone British programmer, Marius Milner, previously blamed by Google for the global privacy outrage, had in fact told senior managers that software installed on the cars would harvest emails, passwords and web browsing details. They did nothing to stop the scheme, which was intended to help build profiles of people’s interests. The data was never used, however.
“For the Information Commissioner, the FCC findings are an embarrassment,” said Mr Pounder. “He’s taken what Google told him at face value and now he’s taking the flak.”
“It looks as if he should not have taken Google’s reassurances on face value and perhaps ordered Google to retain what personal data it captured.”
Martin Hoskins, an independent data protection expert, said the decision to open a new investigation was puzzling in light of the lack of evidence.
“The ICO was persuaded that Google never intended to do any real damage so I’m really surprised this issue has been opened up again,” he said.
“The FCC’s investigation shows that when it comes to big global companies like Google, data protection authorities need to work together to get to the bottom of things.”
In contrast to the FCC’s aggressive approach, which also saw Google hit with a $25,000 fine for refusing to cooperate with the investigation, when the ICO contacted Google in 2010 it was shown a small sample of the data collected in Britain. Officials accepted that new privacy procedures would stop such an “accident” occurring again. Since then, it’s understood that Google has hired a senior ICO policy official onto its lobbying team, while Steve Eckersley, an experienced former police officer, has taken control of the regulator’s enforcement arm.
In his letter to Google this week Mr Eckersley demanded a “substantial explanation” of why the “pre-prepared” sample of data it showed investigators did not include the “full user names, telephone numbers, complete email addresses, email headings… medical listings… [and] information in relation to online dating and visits to pornographic sites” discovered by the FCC.
Robert Parker, the ICO’s head of corporate affairs, accepted its handling of the affair had drawn criticism. He said all options remained open and the next step would depend on Google’s response to Mr Eckersley’s letter.
“The stage we’re at is we have read the FCC report and we’ve posed our questions to Google. The questions are pretty clear,” he said.
While he said that each case of a potential data protection breach is dealt with on its own merits, Mr Parker suggested the ICO had improved its approach to complicated technology issues in recent years.
“Since 2010 we’ve considerably strengthened our technology team here and that is work that continues.”
Officials are due to visit Google to soon to check if it has stuck to the promises to improve privacy procedures it gave the Information Commisioner following his original Street View investigation.
A Google spokesman said: “We’re happy to answer the ICO’s questions.
“We have always said that the project leaders did not want and did not use this payload data. Indeed, they never even looked at it.”