Telekommunikationsgesetz (TKG) - E-Book - Stand: 07. August 2013 (German Edition)

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Media regulators in Europe : a cross-country comparative analysis Joaquim Fidalgo. Giorgia Nesti. Claudia Padovani. Alessandro D'Arma. Marie McGonagle. Barbara Thomass. Maria Righettini.

Indira Dupuis. Wenzel Corinna.

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Stylianos Papathanassopoulos. Leen d'Haenens. Martina Leonarz. Werner Meier. Divina Frau-meigs. Annabel Brody. Achilleas Karadimitriou. Andra Leurdijk. Quint Kik. Mariana Lameiras. Helena Sousa. Through this aspect of the Data Screening opinion, the Constitutional Court did more than invalidate the state law before it. It also raised significant questions about the majority of the other state laws that permitted preventive data searches.

At the same time, however, the Constitutional Court did not declare data screening to be per se disproportionate and, hence, facially unconstitutional. Its decision was that law enforcement officials had to demonstrate the existence of a certain risk of danger before using this technique. At this juncture, the Court placed a significant limit on preventative use of data screening. Beyond the use of data screening by the intelligence agencies in Germany, another type of systemic data use concerns automatic number plate recognition p. In , the German Constitutional Court invalidated two state ANPR laws and identified constitutional norms for statutes authorizing the collection and storage of such information.

Such constitutional protection was compromised whenever law enforcement did not make its comparison of a plate number immediately and did not at once erase non-matching information. It found that the nature and intensity of the invasion of a constitutional interest depended on the specific context of the use of the ANPR system.

On March 11, , the Constitutional Court issued a temporary injunction that suspended certain parts of the statute. In , the Court issued an opinion that struck down the statute. By choosing this term of a half year, the Bundestag opted for the minimum retention period then required by the European Data Retention Directive. In its opinion, the Constitutional Court declared that storage of telecommunications data, including traffic data, constituted a serious encroachment on individual rights.

Despite the potential of this information to assist law enforcement and intelligence agencies, the Constitutional Court decided that the data retention statute had fatal flaws. To be constitutional, such a statute needed well-defined provisions for data security, limits on the use of data to investigations of particularly serious crimes, sufficient transparency about its use for the public, and judicial control of transmission and use of the stored data.

Data Nationalism | Emory University School of Law | Atlanta, GA

Subsequent to the Data Retention opinion, the Bundestag enacted another data retention directive, which the Bundesgerichtshof upheld in The European Commission announced in September that it would not develop any further data retention measures, but would permit Member States to establish their own rules. The Constitutional Court returned to the issue of the constitutional requirements for data mining in its Counter-Terrorism Database opinion. The legal order in Germany distinguished between the function of the police and the intelligence services, and held that they necessarily must limit their sharing of personal information with each other.

Due to this principle, the exchange of information between intelligence services and the police is generally forbidden and permitted only by exception.

Data Nationalism | Emory University School of Law | Atlanta, GA

The Constitutional Court found numerous aspects of the Counter-Terrorism Database Act that did not meet its heightened scrutiny. The law also interfered with constitutional guarantees for the privacy of correspondence and telecommunications Article 10, Basic Law and the right to the inviolability of the home Article 13, Basic Law.

In , the Bundestag assigned a significant role combatting international terrorism to the BKA. The legislation authorized the BKA to carry out covert surveillance in the context of protecting against threats from international terrorism and the prevention of criminal offenses and to transfer data to other authorities both inside and outside of Germany.

In , the Constitutional Court found that the legislation was unconstitutional in part. For example, the Court found that the requirements for the use of data beyond the original investigatory purpose were not entirely sufficient. There were also flaws in the protection of professional confidentiality, in particular regarding the communications of defense counsel and other lawyers. In separate dissents to the BKA opinion, Justice Michael Eichberger and Justice Wilhelm Schluckebier argued that the majority of the Constitutional Court was interfering with the legislative role by articulating excessively detailed requirements.

The debate had been about whether surveillance was permissible within the home and whether such surveillance could occur in bedrooms and other areas associated with intimate activities. The amendment to the Basic Law resolved certain but not all aspects of this debate. This constitutional amendment added new subsections to Article 13 of the Basic Law. First, in its Great Eavesdropping opinion , the German Constitutional Court upheld the amendments as constitutional. Second, the Constitutional Court elaborated on the nature of these requirements in its Preventive Telecommunications Surveillance opinion As an example of such protection, if such material was collected, it was to be immediately erased.

Third, in the Counter-Terrorism Database opinion , the Constitutional Court noted that personal information to be included in the database could be obtained in ways that impinge on the inviolability of the home.

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Such information, as well as that data which interferes with telecommunications privacy, were to be labeled as such in the database. Without such metadata labeling on this sensitive information, its collection would not be constitutional. Fourth, the BKA opinion, also discussed above, evaluated the statutory powers of the Federal Criminal Police Office to covertly collect personal data from private homes. German privacy law regulates information privacy through an omnibus law, the BDSG, 57 and sectoral laws. As for the content of an online communication, it is regulated either by the BDSG or any applicable legislation.

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As for services that are provided on the Internet, these are regulated by the Telemediengesetz , or Telemedia Law. Not surprisingly, it can be quite difficult to determine which statute applies to a given dimension of an online service or communication. As a basic matter, however, German data protection law itself represents a considerable hurdle to systematic data access.

The use of and access to personal data generally requires a legal basis. This prohibition is lifted, however, once a statute authorizes the data collection, processing, or use in question. This statute must, of course, also fulfill the proportionality requirement of German law. Under the BDSG, moreover, data can be processed, shared, and transferred only under a limited set of circumstances. As in US law, German law distinguishes between law enforcement and intelligence agencies.

The two countries also share a distinction between domestic intelligence and foreign intelligence agencies. Law enforcement agencies are generally tasked with enforcing the criminal code and policing violations of it. Intelligence agencies gather and analyze information that is needed to protect national security. This agency is dedicated to threats against the democratic order of Germany; it also has counterparts in each German state.

The federal and state offices for the protection of the constitution have traditionally lacked police powers, such as the ability to perform arrests. The development of the federal police, the BKA, and its role in Germany have long been controversial issues.

Telekommunikationsgesetz (TKG) - E-Book - Stand: 07. August 2013 (German Edition)
Telekommunikationsgesetz (TKG) - E-Book - Stand: 07. August 2013 (German Edition)
Telekommunikationsgesetz (TKG) - E-Book - Stand: 07. August 2013 (German Edition)
Telekommunikationsgesetz (TKG) - E-Book - Stand: 07. August 2013 (German Edition)
Telekommunikationsgesetz (TKG) - E-Book - Stand: 07. August 2013 (German Edition)
Telekommunikationsgesetz (TKG) - E-Book - Stand: 07. August 2013 (German Edition)

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