New telecommunications act in Germany
On Wednesday 5 May, the Mediation Committee, a common organ of the two German legislative bodies, adopted a compromise regarding the new German Telecommunications Act. It brought back a number of privacy restrictions that were already contained in the Government’s draft act (See EDRI-gram nr. 21), but had been rejected by the Deutsche Bundestag, the German parliament (See EDRI-gram nr. 2.5).
The exemption from the mandatory identification of customers that was granted with regard to pre-paid phone cards has been abolished. This means everybody who’s selling prepaid cards, will probably have to ask for ID, to collect name, address and date of birth of each customer.
The Mediation Committee also removed the provision granting reimbursement for providers that hand over data to the law enforcement authorities through an automatic information procedure. Providers will now have to hand-over data without any reimbursement. In the context of the manual information procedure, it has been stressed that service providers have to hand over, upon request, passwords, PINs and similar data necessary to access terminal equipment or storage media used in terminal or network equipment (which includes, inter alia, hard-drives of servers and similar equipment). And, finally, the exception that providers with less than 1.000 subscribers do not have to allow the interception of telecommunications has also been abolished (again).
Furthermore, the accompanying Telecommunications Surveillance Ordinance, that will be revised as well, will need the approval of the Bundesrat, the legislative body representing the German states (‘Laender’). This is in contrast to the current legal situation and even goes beyond the Government’s draft. It is critical with regard to privacy issues because the states are primarily responsible for matters relating to public security and thus tend to advocate far-reaching powers for law enforcement authorities. However, mandatory traffic data retention for a minimum period of six months was not introduced by the Mediation Committee, although it was requested by advocates of far-reaching powers for law enforcement.
The Bundestag immediately adopted the compromise of the Mediation Committee on 6 May; the Bundesrat adopted it on 14 May. The act will now be sent to the Federal President to be signed, and, after this will have happened, it will be promulgated in the Federal Law Gazette. The act is expected to enter into force on 1 July 2004.
Overview of the legislative process (in German) http://www.tkrecht.de/index.php4?direktmodus=novelle-genese
Complete text of the Mediation Committee’s compromise (in German) http://www1.bundesrat.de/coremedia/generator/Inhalt/DE/2_20Bundesrat/2.5_20Vermittlungsausschuss/2.5.4_20Termine_20und_20Ergebnisse/Sitzungsergebnisse/Beschluss_20-_20TelekommunikationsG,property=Dokument.pdf
(Contribution by Andreas Neumann, Research Associate at the Centre for European Integration Studies and one of the editors of tkrecht.de)