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 A similar - but not identical - provision in the former Austrian Telecommunications Act was repealed by the Austrian Constitutional Court in February 2003 (See EDRI-gram nr. 6).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-...
(Contribution by Andreas Neumann, Research Associate at the Centre for European Integration Studies and one of the editors of tkrecht.de)