ENDitorial: Germany sees a "septimana horribilis" in Net politics

By EDRi · March 27, 2013

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Deutsch: [ENDitorial: Eine Woche des Schreckens für die deutsche Netzpolitik |]

In Germany, political developments in the last week have been perceived
as a frustrating defeat by the “Internet community”, as three
legislative measures that had been heavily criticised (and ridiculed)
have progressed in the Parliament.

On 20 March 2013, “De-Mail”, Germany’s standard for “court-proof”
electronic communications and document exchange between citizens,
authorities and businesses, was discussed in a hearing in the Committee
on Internal Affairs of the Bundestag (the “lower house” in Germany’s
federal Parliament).

The main complaint from experts was that when De-Mail is used “as-is”,
there will be no end-to-end encryption as key pairs will be kept on
servers. The concept is that the server of the recipient’s De-Mail
provider will decrypt messages, verify signatures and scan the content
for malware. Critics said the draft law would whitewash a
technically unsound scheme, pronouncing it safe “by legal order”.

EDRi member Chaos Computer Club, who had been invited to send a member
as expert witness to the hearing, published a statement that called
De-Mail’s security a “bad joke” and called for the project to be
scrapped entirely. But it seems that the Parliament is going ahead with
the scheme, with industry experts and politicians saying that stricter
cryptographic standards would make De-Mail too complicated for users.

On 21 March 2013, the Bundestag passed an amendment to Germany’s
telecommunications law, changing the rules on access by law enforcement
authorities to identification and access data (user identities,
passwords, PINs etc) stored by telecommunication providers. A change to
the 2004 law had been mandated in January 2012 by Germany’s Federal
Constitutional Court, which had partly agreed to a constitutional
complaint from EDRi observer AK Vorrat (working group on data retention).

But even after some late changes to the amendment, critics maintain that
the law remains a threat to fundamental rights. While access to some
types of data will require a judicial decree, this will not apply when
the user behind an IP address or telephone number is identified, only
when PINs or passwords are accessed. And an obligation to inform
individuals if their data is accessed has only been included with
significant restrictions.

More fundamentally, access is to be allowed for a practically
unrestricted range of reasons, from suspicions of serious criminal
activity down to minor offences; the law contains no defining
“catalogue” at all. The new bill has yet to pass through the
“upper house” – the Bundesrat, which represents the governments of
Germany’s federal states – but since the main opposition party SPD
participated in negotiating the amendment, it is unlikely that they will
call for substantial changes later. Most critics believe that the new
law will have to be taken to the Constitutional Court yet again.

The most painful defeat came on 22 March 2013 with the adoption of a
highly disputed extension to Germany’s copyright law. A new “ancillary
copyright for press publishers” (“Leistungsschutzrecht für
Presseverleger”) gives publishers the right to claim copyright fees for
links to news stories. This idea had been heavily criticised ever since
it had been brought up by news publishers in 2009.

Before the vote in the Bundestag on 1 March, last-minute changes had
been made to exempt small snippets from copyright fees, but a lot of
uncertainty remains. The new law defines the scope of the fees no
further than “commercial publication, unless it contains only single
words or smallest excerpts”.

A particular disappointment was a change of position by the Social
Democrats, who, together with the Green Party, would at least have had
the power to delay the passage of the law, possibly until the next
federal elections in September. After the Bundestag had approved the
bill, leading SPD representatives had promised resistance in the
Bundesrat, but the party changed course just a few days before the
second chamber’s vote. In the end, the opposition only used their
Bundesrat majority to pass a resolution calling for a reform of the same
law that they had just failed to block.

In their comments, SPD politicians hoped that a new government after the
September elections would reform the law, but it is not looking likely
that the elections will produce the desired result. And after changing
their position so quickly and apparently under the influence of strong
lobbying from news publishers, it may seem doubtful if the Social
Democrats can be relied upon to make a political difference.

Meanwhile, the only difference made by the new law is expected to be
widespread uncertainty, but little new revenue for news publishers. An
often heard prognosis is that there will be fewer links on third-party
websites, leading to counter-productive losses of traffic on news sites.
Some bloggers have already started to depublish large
parts of their existing content and may stop their activities completely.

Put together, these events have been seen as a substantial defeat for
the German “Internet politics” community that had regarded itself as
strong and gradually gaining recognition by mainstream politicians.

A parliamentary commission of inquiry on the Internet and digital
society had just finished its deliberations in late January, but the
positions and expertise gathered over three years of painstaking work
seem to have been largely ignored last week.

At the same time, the German Pirate Party has seen their popularity
decline significantly in the last year, making observers wonder if the
governing parties are now feeling less threat from this side. Questions
are now being asked how the community should make its voice heard better
in the future.

De-Mail: CCC calls its security “only a bad joke” (only in German,

De-Mail: disagreement on suitability for e-government (only in German,

Access to user data: Bundestag regulates access to IP addresses and
passwords (only in German, 22.03.2013)

Ancillary copyright: Is the SPD wavering? (only in German, 07.03.2013)

Ancillary copyright: No majority in the Bundesrat against the new law
(only in German, 21.03.2013)

Keine Mehrheit im Bundesrat gegen das Leistungsschutzrecht

Ancillary copyright: A news service for historians suspends all
activities in response (only in German, 09.03.2013)

Ancillary copyright: A community blog in Leipzig will stop linking to
news sites and has depublished large parts of their old content (only in
German, 25.03.2013)

Reflection: Popcornpiraten (a blog about, not by, the Pirate Party):
Debates about the relationship between the Pirate Party and the
“Internet community”, and reasons for the “failure” of Internet politics
(only in German, 26.03.2013)

(Contribution by Sebastian Lisken, EDRi member digitalcourage)