New telecommunication law in Germany

On 15 October the German Federal Government adopted a draft new
telecommunication act. The draft aims, inter alia, at implementing the
European Directive on privacy and electronic communications (2002/58/EC),
but will not introduce the spam-ban described in Article 13 of the
Directive. In Germany spam will be banned through an update of the Act
against Unfair Competition, and remain subject only to civil law.

The new telecommunications Act contains some important changes in privacy
issues. Most notably, the provisions concerning information requests for
law enforcement purposes have been completely reorganised and expanded.

Section 109 now explicitly obliges telecommunication service providers
that use phone numbers to identify their customers and to retain the
according basic data for future information requests from law enforcement
authorities.

This provision particularly aims at prepaid phone-cards, where customer
data is not necessary to bill (mobile) services. Furthermore, service
providers now will have to hand over, upon request, passwords, PINs etc.
to the designated authorities under the so-called manual information
procedure.

With regard to the interception of telecommunications, little is changed
in the draft act. As before, the act itself does not authorise such
interception; all relevant provisions are contained in separate acts.
Providers will also still be obliged to install wiretapping infrastructure
at their own expense. A similar – but not identical – provision in the
former Austrian Telecommunications Act was repealed by the Austrian
Constitutional Court in February 2003 (See EDRI-gram nr. 6). In addition
to the Telecommunications Act, the accompanying Telecommunications
Surveillance Ordinance will be revised as well. The current draft,
published on 30 April, only contains minor changes to the current
Ordinance. Most of these changes deal with the particularities of Internet
communications.

In the next legislative step, the Bundesrat, the parliamentary body
representing the German states (‘Länder’), will discuss the draft
Telecommunications Act. Because the regional states are primarily
responsible for matters relating to public security, they tend to advocate
far-reaching powers for law enforcement authorities. In the past this
included proposals for mandatory data retention, so it may well be
possible that the Bundesrat will again propose the insertion of such
provisions into the new telecommunications act.

Overview of the legislative process (in German)
http://www.tkrecht.de/index.php4?direktmodus=novelle-genese

Complete text draft law (in German)
http://www.bmwa.bund.de/Redaktion/Inhalte/Downloads/TKG-E-entwurf-mit-begruendung,property=pdf.pdf

(Contribution by Andreas Neumann, Research Associate at the Centre for
European Integration Studies and one of the editors of tkrecht.de)