So now it’s about the basics. Children must be saved, urgently – through preventive storage of Internet data, demands the Federal Minister of the Interior. The Federal Minister of Justice does not want to hear anything about it. To monitor millions of innocent people without cause is against fundamental rights. Nancy Faeser (SPD) and Marco Buschmann (FDP) have been arguing about data retention for months. The matter threatens to get bogged down in principle. But now there is a compromise. It could come up in the next coalition committee, possibly as early as this Wednesday.
The question is how investigators can take more effective action against serious criminals who offer or buy depictions of sexualized violence online, commit hate crimes, illegal money laundering or organize attacks. Interior Minister Faeser criticizes that too many of these perpetrators go unpunished because security authorities do not have access to traffic data on the Internet.
She wants to oblige telecommunications companies to temporarily store the IP addresses and port numbers of all their customers so that investigative authorities can assign the data to specific people in the event of serious suspicion, even days later. Because once the data has been deleted, the identification fails.
In just a few days, the traces will disappear
The minister refers to the European Court of Justice (ECJ), which has declared the storage of IP addresses for a short period of time to be lawful in the fight against serious crime. Faeser argues that this opportunity must be used to protect victims. Security authorities are also stepping up the pace: the tracks of criminals are much harder to follow on the Internet after just a week, also because IP addresses are constantly being changed.
Faeser’s self-confident advance has probably given her some encouragement in her own house. But it remains to be seen whether she comes out unscathed. FDP Minister of Justice Marco Buschmann is resisting their demand. He, too, relies on the ECJ, which has declared the mass and unreasonable collection of telecommunications data to be inadmissible.
Buschmann warns that if millions of connection data were stored without concrete suspicion, even those of completely innocent citizens, fundamental rights would be violated in an unacceptable manner. According to the Liberal, this is incompatible with the coalition agreement. There, the coalition had stated that data would be “legally secure on an event-related basis and stored by judicial decision”.
The idea: Freeze and thaw
In the meantime, Buschmann has presented a draft law that aims to reconcile effective criminal prosecution with the protection of personal data. He suggests a quick freeze, a two-step process for backing up data. Investigative authorities could therefore prompt a telecommunications company to temporarily secure location data, telephone numbers and IP addresses if a serious criminal offense is suspected. The suspicion does not have to be directed against a specific person. This data freeze is intended to give investigators a few days to investigate without losing any information. You cannot access the traffic data in this first step. According to Buschmann’s draft, however, a court order is required.
In a second step, the data could then be thawed again. If the investigation reveals who the suspect is and what data is required, the providers should be instructed to send this to the police. This thawing requires a second judicial approval.
The procedure was too cumbersome, two judicial decisions cost valuable time, complained the German Association of Judges. Interior Minister Faeser also considers the quick freeze to be insufficient. It could provide important insights “as an accompanying instrument”. However, in the case of crimes such as a terrorist attack, in which the perpetrator’s environment is only checked afterwards, it does not help. Faeser is now under considerable pressure to find a face-saving way out of the conflict. But Justice Minister Buschmann has also maneuvered himself into a tight spot by stylizing the dispute to a fundamental liberal issue. Compromises are difficult.
A pirate has advice that is heard
Rescue could now come from a representative of the Pirate Party. Patrick Breyer is a member of the European Parliament and has been suing for years against data retention without cause. The spokesman for the digital community considers it an “unprecedented attack on our right to privacy”. He proposes a compromise to put an end to the tiresome ongoing dispute in the coalition. He seems to be getting a hearing in the Justice Department.
“Instead of the unacceptable extreme demand for comprehensive Internet data retention, a compromise could be such that an event-related backup of precisely defined IP addresses and port numbers is initially permitted without an order from the judiciary,” said Breyer Süddeutsche Zeitung. “It would make sense to have a quick electronic procedure for backing up data that could also be used in the case of less serious Internet crimes.”
In other words, Quick Freeze could omit the initial court order to freeze traffic data. Only the second step, the thawing of the information, which allows the police or the public prosecutor’s office to access connection and location data, should be subject to a judicial review. In this way, one gains time and may be able to identify more perpetrators, says Breyer – a concession to the interior minister. At the same time, however, the state is refraining from subjecting the data of millions of uninvolved citizens to an unprecedented surveillance – that suits the Minister of Justice.
In addition, Breyer proposes the expansion of technical interfaces between the police and Internet providers. They are intended to ensure that complete data sets can be transmitted faster than before using a standardized procedure.
The Ministry of Justice considers the proposal to be at least up for debate. The Minister of Justice indicated that he had nothing against manual changes as long as the basic line was correct. After the trench warfare of the last few months, this is at least a signal.