Law against “digital violence”: Data retention “through the back door”​

Civil society organizations have reacted differently to the cornerstones for a law against “digital violence” presented by Federal Justice Minister Marco Buschmann (FDP) on Wednesday. The stumbling block is not so much the planned blocking of accounts for haters on Facebook, Twitter & Co., but rather the broad right to information under civil law against operators of social networks and messenger services, which should also apply to IP addresses. In addition, there are requirements to “specifically secure” inventory and usage data of the author of a “presumably infringing statement” until the end of the information procedure.

“The proposed law requires online service providers and chat services to have extensive storage and identification requirements,” criticizes the Chaos Computer Club (CCC). “The forced data retention through the back door would be a massive intrusion into the private sphere” of the citizens. The hacker association therefore urgently warns of the medium and long-term consequences of such a step. Experience shows “that surveillance infrastructures, once introduced, are never taken back, regardless of whether they fulfill their intended purpose”.

According to the CCC, opportunities for profiling and the increasing concentration of personal information in the hands of a few companies “already harbor considerable risks for informational self-determination”. If the data collected in this way could then be combined with unique identification data, another tool would be available for a surveillance society. Instead, the legislature should focus on strengthening the staff and better training of the law enforcement authorities, which in many cases have left existing investigative approaches unused.

The digital political association D64, which is close to the SPD, also complains that the planned tightening of private information procedures goes too far. According to the key points, this measure should already be possible in the case of any alleged violation of absolute rights, such as an inaccurate restaurant criticism. This represents a “significant threat to freedom of expression and endangers vulnerable groups”. The advantage of the potential account blocks, on the other hand, is that the anonymity of users is not a problem.

Information procedures should be limited to cases “where there is an initial suspicion of a crime,” explains D64 co-chairman Erik Tuchtfeld. “Violations of personal rights are quickly alleged, for example when photos of demonstrations are published.” Due to the new right to information, private data of anonymous users could quickly fall into the hands of conflicting parties.

In the worst case, this could lead to massive amounts of personal information being distributed online (“doxxing”), the association warns. However, the state is responsible for criminal prosecution on the Internet. Here, fundamental rights-compliant solutions without preventive storage of data would have to be used. In this sense, the initiative should be supplemented by the concept of the login trap developed by D64.

The right to information against hate and hate speech would make its controversial counterpart for the prosecution of copyright infringements pale in many respects. In contrast, no court costs should be charged for enforcement. According to the plan, the procedure will also be opened in the event of a violation of the general right of personality or the so-called right to the established and exercised commercial enterprise. The law is intended to make it clear that all providers of messenger and Internet access services – including telecommunications companies – can be obliged by a court to hand over data under certain conditions.

In order to gain time, service providers could be required to disclose the IP address of an author of a controversial post to the court at an earlier stage in the proceedings. As a precaution, this should then be able to prohibit the provider from deleting the inventory data, including information on who the recorded IP address was assigned to at that time. In the case of “obvious violations of the law”, the judges should already oblige the service provider with an interim order to provide information about the inventory and usage data of an author.

Josephine Ballon, legal expert at the aid organization HateAid, had already called for an extended obligation to provide information to providers or mobile phone operators similar to copyright law at a hearing on the Network Enforcement Act in the Bundestag in 2020, in order to be able to identify users behind an IP address as quickly as possible. Those affected should be able to defend themselves better. At the time, the Digital Society Association warned that such claims should not lead to prejudice on the part of social networks. All in all, politicians run the risk of promoting Internet censorship and surveillance even more with their course.

HateAid now finds that the Justice Department’s plans “go in the right direction”. However, there is still room for improvement. The organization is pushing for an “all-in-one” right to information: Those affected should only have to conduct one procedure to access the account holder’s data. Better handling is also needed against perpetrators who act with multiple accounts and who could create new accounts at any time with invented data. In addition, legal fees and high amounts in dispute remain in the proposed proceedings. A statutory right to compensation for pain and suffering for those affected by digital violence would also be important.

The Society for Freedom Rights (GFF) already presented a paper for “account bans ordered by a judge” in December. Its chairman Ulf Buermeyer does not consider the instrument in the ministry paper to be exhausted. According to him, a one-time criminal insult should be reason enough to block a user account at least temporarily. The fact that the justice department also wanted to “regulate information and storage”, but he sees it “very critically”.


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