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IV. Governance issues

E-Government & Privacy

The Federal Data Protection Act (Bundesdatenschutzgesetz) and data protection laws of the Länder apply to e-government services. The delivery of public services online can in addition fall in the scope of application of specialized laws regulating the processing of personal data in telecommunications and telemedia services.1

Open Government

On 1st January 2006, the Federal Freedom of Information (FOI) Act entered into force,2thereby closing the gap in transparency between Germany and all other Member States of the European Union (except Cyprus, Luxembourg, and Malta). FOI legislation had been proposed for five years but the administration had been reluctant to agree on a draft statute. Eventually, Members of Parliament from the ruling coalition parties grew impatient for a draft and presented their own.3The draft was followed by an intense debate in the German Parliament (Bundestag) and among legal scholars that particularly focused on the exceptions included in the Act. Much criticism focused on the fact that information can be rather easily excluded from disclosure on grounds of public security and fiscal interests of the government. Personal data will only be disclosed if the information interest outweighs the interest of the data subject. Importantly, information containing intellectual property or business secrets is completely excluded from the ambit of the Act. The Federal Commissioner for Data Protection and Freedom of Information enforces the FOIA Act.4

10 of the Länder already have their own FOI laws in effect.5The Land of Brandenburg has the right of access to governmental records in its constitution and adopted a FOI law in 1998.6Later, Berlin, Schleswig-Holstein, Nordrhein-Westfalen, Hamburg, Bremen, Mecklenburg-Vorpommern, Saarland, Sachsen-Anhalt and Thüringenalso adopted FOI laws.

Other Recent Factual Developments

(with an impact on privacy)

There is nothing to report under this section.

Civil society advocacy work

A significant public movement against data retention has been formed, with some thousand people attending demonstrations, and about 34.000 people filed a case before the Federal Constitutional Court (Bundesverfassungsgericht), which is quite extraordinary, since the procedures do not allow for class action suits.7The Arbeitskreis Vorratsdatenspeicherung (German Working Group on Data Retention) is an association of civil rights campaigners, data protection activists and Internet users. The Arbeitskreis is coordinating the campaign against the introduction of data retention in Germany.

(See more details under the "Data retention" section.)

Several video surveillance projects in Germany have generated a reaction from privacy and data protection advocacy groups. For example, a private group called Der Grosse Bruder (Big Brother)8has created a map of Munich, highlighting all the video surveillance cameras installed there. In 2003, the Humanistische Union (Humanistic Union)9sued a Berlin shopping center employing a video surveillance system with a range of vision that included a public street.10In Weimar, Germany, a local newspaper protested the installation of video surveillance cameras that watched the entrance of a newspaper building (along with medical and political offices), and the local government eventually uninstalled the cameras.11Public debate on camera observation was heightened by the revelation that a museum's security camera could see into chancellor Angela Merkel's private flat in Berlin. Upon discovery, the mechanism of the camera was changed to reduce the angle of observation.12

In March 2004, following German retail giant Metro's RFID cards trial project in 2003, that would have allowed the tracking of all purchases and linking to the customer's identity,13the company halted the trial program in response to protests from digital rights groups regarding possible privacy violations.14Outcry was particularly forceful upon discovery that Metro had placed RFID devices in their "Extra Future Card" (personal customer shopping card) without notifying consumers.15This use of RFID was uncovered by a German NGO called FoeBuD by taking X-ray photos of the card.16FoeBuD also staged two protests, one in front of the Metro Future Store and one at a "pro-RFID" conference, and has recently been granted money by the Bewegungsstiftung17(a German group which supports and promotes social movements and reform projects) to develop the "privatizer," a small device which consumers could use to find hidden and embedded RFID chips in consumer products.18

(See more details under the "RFID tags" section.)

In 2009, the Federal Government has adopted a bill, still under discussion, to introduce ID cards (Personalausweise) with the option to have digitized fingerprints included on a voluntary basis. The original plan of the Federal Home Secretary to include digitized fingerprints on a compulsory basis met with strong public opposition.

The introduction of Google’s Street View service in Germany has sparked public controversy19and individuals have the possibility to object electronically or in writing against the publication of images of their private premises, houses and flats. Until October 22, 2010, Google reported a total of 244.237 households which opted-out from the service which equals nearly 3 percent of households in Germany’s 20 largest cities for which Google’s Street View service was launched in 2010.20Where an opt-out has been declared Google has to pixel the concerned premise’s image.

Some leading German news media, such as Der Spiegel, Spiegel Online and Die Zeit as well as heise online frequently and critically report about privacy relevant topics.

IV. International Obligations & International Cooperation

Germany ratified the Universal Declaration of Human Rightswhich was proclaimed by the General Assembly on 10 December 1948.21On 17 December 1973, Germany ratified the International Covenant on Civil and Political Rights.22

Germany is a member of the Council of Europe and has signed and ratified the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (Convention No. 108)23and later signed an Additional Protocol to this convention.24It has also signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention No. 005).25In November 2002, Germany signed the Convention on Cybercrime which was finally ratified in 2009.26It is a member of the Organization for Economic Cooperation and Development (OECD) and has adopted the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.

Germany has been instrumental in setting up platforms for international cooperation. International Working Group on Data Protection in Telecommunications (IWGDPT) was founded in 1983 in the framework of the International Conference of Data Protection and Privacy Commissioners at the initiative of the Berlin Commissioner for Data Protection, who has since then been chairing the Group.27