.::3. German legislation :.

Übersicht

3 German legislation

3.1 Introduction

3.1.1 What happened after 11 September 2001

3.2 First Security (Anti-terror package I)

3.2.2.1 General

3.2.1.1 Introduction of § 129 b StGB

3.2.1.2 LuftVZÜV (aviation Reliability Review Regulation)

3.2.1.3 abolition of religion privilege (Association law)

3.3 The second security package (anti-terror package II)

3.3.1 General

3.3.2 Overview of the intelligence

3.3.2.1 Federal Constitution (BFV)

3.2.2.2 Military Abschirmdienstes (MAD)

3.2.2.3 Federal Intelligence (BND)

3.3.3 power changes

3.3.3.1 Transmission of data on accounts and transactions

3.3.3.2 Information on the tele-service usage data

3.3.3.3 Introduction of the IMSI-catcher

3.3.3.4 separation

3.3.4 Changes

3.3.4.1 BKA (Federal Kriminalamt)-Law

3.3.4.2 SÜG (security law)

3.3.4.3 Passport and Identity Card Act

3.3.4.4 Asylum - Immigration Law

3.3.4.5 Social Data

3.4 Rasterfahndung

3.4.1 General

3.4.2 Negative Rasterfahndung

3.4.3 Positive Rasterfahndung

3.4.4 Sense of Rasterfahndung

3.4.5 Privacy considering

3.5 Criticism

3 German legislation

After a hectic procedure agreed by the Bundestag on Friday, 14 December 2001 with a large majority of the legislative package to? Combat terrorism? to give the name of the legislation barely deserved, the so-called anti-terrorism law, the German reaction to the attacks in New York and Washington. This day marks the founding of a new state, its citizens, in order to reduce security risks, massive surveillance measures suspends, at which no concrete suspicions are based. This is the broadest attack on the democratic rights of the Federal Republic of Germany in force.

[from the Humanist Manifesto of the Union "Where does the core area of the rule of law"]

Due to the large number of legislative changes, I can not describe them all, because the context of my report, but I think that I have chosen topics are very interesting data protection laws.

3.2 First Security Package 3.2 (anti-terror package I)

3.2.1.1 Introduction of § 129 b StGB

The previous § 129a StGB (introduced by the Anti-Terror Act of 1976) was due to its undetermined circumstances (? Advertise?? Support?) In the past, especially an investigative fact of banal occasions massive informational identify possible interventions. For an extension to international organizations is nothing wrong only if both a law limiting the applicability conditions. Otherwise, with this clause almost any international political commitment ausgeforscht and judicial proceedings.

Rolf Gössner, Das Anti-Terror-System, Hamburg 1991, S. 42 ff.

3.2.1.2 LuftVZÜV (aviation Reliability Review Regulation)

3.2.1.3 abolition of religious privilege (Association law)

The abolishment of religious privilege in the law governing associations will facilitate the monitoring of these associations, but the effect against the other clubs only the production of equal rights and privacy perspective is neutral. It is simply to prevent extremist groups under allegedly unconstitutional religious purpose their goals remain undisturbed can pursue.

3.3 The second security package (anti-terror package II)

3.3.2 Overview of the intelligence

The BFV is the right, under specified conditions at banks, financial institutions and financial companies, for air carriers and enterprises, of business telecommunications services and telemarketing services in statutory scope information. The BFV is in the context of its urgent tasks on information from these institutions instructed.

3.3.2.2 Military Abschirmdienstes (MAD)

The MAD is part of the security forces for the defense and the readiness of the Armed Forces will be responsible and how the BFV information about threats, which are against the peaceful coexistence of nations directed, may collect and analyze.

Unlike the BFV, the MAD, however, no access rights to banks, financial institutions and financial companies, aviation companies. He is but the right to interfere in business, the business-telecommunications services and telemarketing services, information on telecommunications and tele-services collect usage data.

3.3.2.3 Federal Intelligence (BND)

The BND collects information about foreign countries, which are security-political relevance. The activity of the BND is the foreign, but the power was, according to § 2 BNDG before the anti-terrorist law to determine the domestic expands when it is necessary to enlighten foreign-related transactions. The same restrictions and the same message commitment to stakeholders.

The BND was just the right to banks, financial institutions and financial undertakings, information on accounts, account holders and other beneficiaries as well as on payments and other cash flows to funds catch.

Sense of tightening laws (in terms of intelligence), it is foreign extremism in advance by observation to be able to analyze and monitor the cash flows and account movements to the responsible men to go back.

3.3.3 power changes

3.3.3.1 Transmission of data on accounts and transactions

3.3.3.2 Information on the tele-service usage data

Telecommunications, and teleservices:

Especially coming from the United States, was adopted by the CDU / CSU, the call for increased surveillance of telecommunications by. Connection and usage data can help other stakeholders to identify terrorist networks and thus prepare additional targeted investigations. The surveillance capability of any form of electronic telecommunications are already extremely broadly.

In future it will be the BFV also be possible in the fight against terrorism under conditions, technical means for locating switched cell phones and to identify the device and card numbers only. This measure should only be permitted if, without the determination of the parties concerned to achieve the purpose of the surveillance measure hopeless or considerably more difficult.

Between Teleservices and telecommunications service is in the data name is not differentiated. There are contradictions between the far-reaching power of information and the regulations in § 6 and § TDDSV I 6 I TDDSG:

In the data protection law stipulates that only the data to be collected for the provision of service or for billing purposes. The power is now the standard wording differed, it is not? Survey? but from? information? spoken. Do not need to transmit more data is collected as it is in the domain-specific data protection law is. Data were, however, regardless of the request for information not collected and stored, these are also the intelligence to be transmitted.

3.3.3.3 Introduction of the IMSI-catcher

Privacy Legally, there are some questionable decisions. As shown by the IMSI-catcher, all outsiders in the corresponding wireless network covered. On the one hand, data from the third person are collected and temporarily stored. On the other hand, one can not make calls temporarily, ie no emergency absenden - restriction of communication rights.

From a data protection perspective we encounter a fundamental problem:

The secret powers were here, what the separation, the separation of the Constitution and the police are not sufficiently taken into account.

The separation of the police and the Constitution comes from the experience with the terror of the Gestapo, the intelligence and executive powers and therefore had unlimited power reached. For the dangerousness of the Gestapo was also in that these powers to all police authorities, the administrative-scrutiny and the law was not bound. On 14 April 1949 wrote Militärgouveneure the three Western Powers in the Parliamentary Council, by the structure of the German security authorities has been set. ? the secret will be no police powers and no longer have federal authority must command authority over land or Ortspolizeibehörden possess.

3.3.4 Changes

3.3.4.1 BKA (Federal Kriminalamt)-Law

The BKA can be used in cases where it is in its role as a center for criminal evidence has additional information, without - as under current law - always first need to clarify whether the police agencies of the Federal Government or of the countries on the information. Because of this bureaucratic requirement eliminated, the required information easily and quickly be procured. Parallel responsibilities will not be created. Nevertheless remains that the expanded investigative and surveillance powers of the secret and BKA are significant and beyond the new bill a significant exchange of information between police authorities and the secret is possible. This contradicts the clear from the experience with the Gestapo established precept of strict separation between police and secret services. This requirement is especially important legally because it is a powerful and omniscient monitoring authority to prevent.

Against the background of these massive interventions, particularly in the fundamental right of informational self-determination, which every citizen is granted the right to decide for themselves what data when and where it has published and released, it is almost cheek. From a data protection perspective is still the potential for double surveys relevant data to be used for the countries already exist, the absence of agreement inevitably raised again. This is not necessary, the intervention is not proportionate.

3.3.4.2 SÜG (security law)

Through the draft amendment to the federal government to allow people who sicherheitsüberprüft be extended (eg, employees in private enterprises). This will be achieved through a new section 1 para 4 SÜG made:

"(4) A security-sensitive activities shall also come from a security agency within viable or major defense equipment, whose failure or destruction of a significant threat to the health or lives of large segments of the population to fear or to the functioning the community is indispensable, is employed or will be (prevention of human sabotage protection). "

The group, which is probably a security test should be as Journalists in radio and television, nurses, chemists, the mechanic in the Telecom, the workers at the post office to possibly on the workers in small firms, on behalf of electricity companies or water companies are operating. For the purpose of these persons, the employees will begin a "security declaration under section 13 must SÜG. In this Declaration of Security, he has a variety of personal information.

Name, even earlier, first name,

Birth date, place,

Citizenship, including past and dual nationality,

Marital status,

Residences and stays of longer duration than two months, in the domestic over the last five years abroad, from 18 Year of life,

exercised the profession,

Employer and address;

Number of children

Persons living in the household over 18 years (name, even earlier, first name, date and place of birth and relationship to this person)

Parents, stepparents or foster parents (names, even earlier, given names, date of birth, place of birth, nationality and residence),

Training and employment, military or civilian service times with an indication of the training centers, employment agencies and their addresses,

Number of the identity card or passport,

Information on over the past five years, carried out enforcement measures, and whether the time the financial obligations can be met,

Contacts with foreign intelligence or intelligence of the former German Democratic Republic, the initiation of a trial-and advertising may suggest,

Constitutional relationships with organizations,

pending criminal and disciplinary procedures;

Information on homes, holidays, travel, and other close relatives and relations in countries in which after adoption of the Federal Ministry of the Interior as a National Security Agency special safety risks to activity dealing with sensitive people are to obtain,

two respondents to the identity verification of the person concerned only with security clearance according to § § 9 a.m. to 10 p.m. (name, surname, address and relationship to the person),

three reference persons (name, first name, profession, professional and private addresses and phone numbers as well as temporal beginning of the acquaintance) in the case of a security pursuant to Section 10,

This amendment addressed fundamental concerns:

They are 'deep intervention in the informational self-determination ". The Act contains no criteria for determining those areas, according to the ordinance under the safety-related field should fall. What does that mean?

The terms "life-or defense-important facilities," "serious threat to health or the lives of large segments of the population" to "fear" or "functioning of the community" are very common. There is no distinction possible. Why should not public transport including a big fall?

It should be noted that the law is a deep intrusion into the personal information which objectively without it would be able to the specified purpose. It is worth noting that this law is not a measure of secrecy protection, but an extension of the so-called safety-related field to large areas of the private economy. This extension of the law is not limited, but on the basis of authorization in principle arbitrarily extensible. Depending solely on this argumentative burden of regulation sensor.

3.3.4.3 Passport and Identity Card Act

The changes introduced by the Passport and Identity Card Act, the first foundations created, next to the photograph and signature even biometric data, such as Fingerprint characteristics of the hands or face in the passport or identity card in the building. These features allow a computer-aided identification of a person to carry out.

The reliability of the identification of a person merely by the comparison between the passport and living person is dependent on the performance capability and is also supported by numerous other factors, such as the quality of the image, the aging process, change of hairstyle, etc. affected.

 § 4 para 3 a.m. to 4 p.m. Passport Act

(corresponds to section 1 para 4 p.m. to 5 p.m. Identity Card Act)

(3) The passport must in addition to the photograph and signature, other biometric characteristics of fingers or hands or face of the passport holder included. The photograph, signature and other biometric features may also be carried in safety procedures with an encrypted form in the passport will be introduced. Also in paragraph 1, sentence 2 listed information about the person may with safety procedures in an encrypted form in the passport will be introduced.

(4) The types of biometric features, their details and the introduction of features and information in encrypted form in accordance with paragraph 3 and the nature of their storage, to its other processing and its use by federal law. A nation-wide file is not set.

The Act identifies three areas of the body on which the biometric characteristics may relate. Thus, the relevant body areas to be written. By narrowing down the alternatives as relevant features of it simultaneously refutes fears that the government wants many of the characteristics of its citizens grasp. As in the past will continue to be no central storage of all records indicate.

The biometric data is usually personal information, so are interventions (through collection and storage) in the right of informational self-determination. The fake security through biometric features is unlikely to increase, as already shaping the identity cards of the risk to zero "can go, are to take additional measures against counterfeiting in the legal sense of privacy" not required ". In addition, Germany has no powers over identity papers of foreign citizens or visitors so you can no international biometric recognition systems to stave off attacks. The use of the characteristics for other state purposes (especially criminal) or private purposes (insurance, health care) is excluded.

3.3.4.4 asylum? Immigration Law

The changes in the Aliens Act provides that persons who in any way with terrorist activities can be linked, no residence permit and therefore does not get entry into Germany is granted. In order to terrorist or violent foreigners in Germany, no rest room to be granted, the rule will be extended expulsion offenses. As a rule, will be expelled, who according to the new ground would not be allowed entry. Even those in the visa process and before the Ausländerbehörde despite information security-related false claims that will be shown regularly in the future. Simultaneously, the removal of protection for political refugees by exploiting the rules of the Geneva Convention on Refugees of 28 July 1951, which is binding for Germany is limited.

In the asylum law is a legal basis for a voice recording created using Identitätssichernde which a voice analysis to determine the region of origin can take place. The survey may take place only if the alien before it has been notified. Fingerprints and others in connection with the asylum procedure Identitätssichernde documents obtained will be kept for 10 years, in order to access the security agencies to enable the long term. Likewise will the fingerprints of asylum applicants automatically with the police (Tatort track inventory) compared.

 3.3.4.5 Social Data

The novelty in the law (§ 68 SGB III, X) by Article 18 of the anti-terrorist law leads to a weakening in the social Privacy. A person has many benefits sought information on their personal situation to disclose. If the applicant of the transfer of their personal data, it is no longer on welfare. In the case of a transfer of personal data must be the service providers that hold secret (secret social), with the exception of a consent or a special power. This revelation has now been expanded powers, so it is now possible social data for the purpose of the dragnet to be transmitted. Originally it was planned to transfer all the data release. Criticism was the key word, which came earlier this consideration. Especially when it comes to health data that is vulnerable to data.
 

Because of the criticism of experts, these data were finally out of the transmission power used. However, the basic personal data, the state and religion, the addresses of the individuals concerned and the employer, and the claimed benefits may be provided.

It should be kept in any case from a data protection perspective, that the religion is a particularly sensitive date gem. BDSG are involved. The sensitivity of the test of proportionality, particularly into account.

3.4 Rasterfahndung

3.4.1 General

The reason for the introduction of the dragnet was the rise of organized crime at the end of the 80s. We tried to find a procedure which is the comparison of known characteristics of the offender with stored data makes.

There are two types of Rasterfahndung:

Negative Rasterfahndung

Positive Rasterfahndung

The implementation of the dragnet is bound to four principles:

Earmarking

Proportionality

Appropriateness

Necessity

 3.4.2 Negative Rasterfahndung

The neg Rasterfahndung are people from a large dataset to be checked, after deleting those as requested not eligible? Subtraktionsverfahren.

e.g. It is after all the people looking for their electricity bill to pay the debits. Including those not covered will be promptly taken from the dataset and thus no longer suspected.

3.4.3 Positive Rasterfahndung

In pos. Rasterfahndung is looking for people with certain characteristics. Now, the data from the screening compared with the existing and creates a new collection with people, the makers of the positive characteristics.

3.4.4 sense of  Rasterfahndung

The majority of people do not gridded in police investigations involve connection. Only when more data synchronization anomalies to detect people and beyond relevant information from other bodies of the affected persons are available, close, after individual assessment of further police action against only those persons within the jurisdiction of the country to police. These results are compacted raster only the starting point of concrete investigations dar.

3.4.5 Datenschutzrechtliche viewing

A citizen is always considered to be unsuspicious, it follows from the rule of law. The citizen should be? Law left in peace to be? can get. Especially in the area of security is recognized, however, that this right is not unconditional. This is apparent in the usual way of using as "non-interference? Police in the law. The question is also the suitability of the procedure, so far has been only one success. Heard any of the inconspicuous lives in the category? Sleeper? View of the BKA is innocent to target and they filter out the criminals. The death blow argument (victims of the WTC attack) is operated by the proponents of Rasterfahndung thick underlined. But we must also see other viewpoints. What is with the sensitive data, the detection of unsuspected, of doubtful fertility (a success), the repeal of the earmarking of the transmitted data ...

3.5 Criticism

Here I would like some of the main criticisms to me during my research have emerged to address:

Violation of the separation between state and federal powers, responsibilities and against the police, the country thing is softening the separation between the bid and secret police activity, the BKA can be virtually as a secret work unlimited extension of jurisdiction and establishment of its own investigative powers without authority for the BKA, Federal Constitution by the domestic intelligence service to domestic and foreign intelligence mission of restraint, and restrictions thresholds for investigations, data collection and findings of suspected excessive and unnecessary data collection numerous violations of the right to informational self-determination and of the general personal rights against the principles of necessity and proportionality in the use of funds is often violated many general and unspecific indistinction formulated conditions and reasons for activities and interventions on the part of law enforcement and intelligence requirements, the fundamental rights of action by law enforcement agencies and secret services secure, are missing in many places according to the present amendments to the Passport and Identity Card Act, the unlimited storage of all possible biometric features possible, including DNA sequences, medical data. A provision in a decentralized storage of data is missing

Once again reveals itself with these measures but also the inability of the federal government, to political problems adequately respond. Instead, the causes for terrorism and crime at the political level to fight, a monitoring campaign, under the pretext of fighting crime in the fundamental truth fought.

Critical Left is massively against the security in the packages I and II measures and criticized the limitation of many basic rights and freedoms the strongest terms.

Bibliography