Telecommunications secrecy

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The secrecy of telecommunications is a fundamental right protected in the constitution of many states . It is mostly supplemented by the confidentiality of letters , in Germany also by the postal secret . In more recent terminology, it is also referred to as a telecommunications secret and prohibits the unauthorized interception, suppression, exploitation or distortion of telecommunications, telex, telephone, radio and telegraph messages.

Germany

Article 117 of the Weimar Constitution of 1919 already guaranteed the citizens of telephone secrecy.

Federal Republic of Germany

The German legal definition can be found in Section 88 (1) of the Telecommunications Act (TKG) and in Section 206 (5) of the Criminal Code (StGB). Accordingly, the telecommunications secrecy is subject to "the content of the telecommunications and its specific circumstances, in particular the fact whether someone is or was involved in a telecommunications process" and "the more detailed circumstances of unsuccessful connection attempts".

It therefore protects the incorporeal transfer of information to individual recipients and therefore also the so-called traffic data . It should also be noted that after the communication process has been completed, the data no longer counts under the protection of telecommunications secrecy according to the case law of the Federal Constitutional Court. This data is then passed into the control of the participant and there is no longer any danger due to communication over a spatial distance. However, the area of ​​protection of the right to informational self-determination comes from Art. 2 Para. 1 i. V. m. Article 1, Paragraph 1 of the Basic Law applies.

Telecommunications secrecy in the Basic Law of 1949 is one of the basic rights ( Art. 10 GG), but there is the possibility of restricting telecommunications secrecy by means of a simple law, ie the state may obtain knowledge of the content or circumstances of the communication in certain legally regulated situations. Such legal restrictions exist for the purpose of criminal prosecution with §§ 100a to 100j of the Code of Criminal Procedure (StPO) .

In criminal law , telecommunications secrecy primarily affects employees of telecommunications providers ( Section 206 Paragraphs 1 to 3 StGB, violation of postal or telecommunications secrecy ), but also everyone ( Section 206 Paragraph 3 StGB and Section 148 Telecommunications Act of June 22, 2004).

Art. 10 GG old version originally read:

The secrecy of letters as well as the secrecy of mail and telecommunications are inviolable. Restrictions may only be ordered on the basis of a law.

By law of June 24, 1968, as part of the emergency laws of 1968, Art. 10 GG new version was given this version:

(1) The secrecy of letters as well as the secrecy of mail and telecommunications are inviolable.
(2) Restrictions may only be ordered on the basis of a law. If the restriction serves to protect the free democratic basic order or the existence or the safeguarding of the Federation or a Land, the law can stipulate that the person concerned will not be informed and that a review by organs appointed by the People's Representation will take the place of legal recourse Auxiliary organs occurs.

For the restriction of Art. 10 GG, see also the law on the restriction of the secrecy of letters, mail and telecommunications .

In fact, the number of telecommunications monitoring arrangements in 2006 was 35,816 lines, plus 7,432 extension arrangements. In 2008 more than 1.1 million telephone calls were monitored in Berlin alone.

In 2015, the Federal Intelligence Service stored 220 million telephone data a day. In addition, the three German federal intelligence services monitored 37 million e-mails and data connections in 2010 .

According to the opinion of the Federal Constitutional Court , a state seizure and seizure of e-mails on the mail server of a provider is also an interference with the secrecy of telecommunications under Article 10 (1) of the Basic Law. However, such an encroachment could be justified by the general provisions on seizure and seizure in criminal proceedings ( § 94 ff. StPO) (constitutional barrier ). Here, however, the principle of proportionality and special features in the course of the procedure should be taken into account (see barriers ). In particular, it may be necessary to inform the “person concerned” (ie bearer of the fundamental right) about the measures and to delete or return e-mails later.

GDR

The violation of the secrecy of telecommunications was formally punishable in the GDR in Section 202 of the Criminal Code (GDR) . Nevertheless, all telephone calls from or to the West and many calls within the GDR were systematically checked by Department 26 of the Stasi . These worked together with the Deutsche Post of the GDR .

The telephone monitoring of the MfS began in 1950. The main department S (technical security) consisted at the beginning of two units with less than 20 employees. In the mid-1980s, around 1000 people were employed. In 1986, 2,030,130 calls were tapped.

Austria

In Section 119 of the Criminal Code , every message “transmitted by telecommunications or computer system” is protected.

Further provisions can be found in the Telecommunications Act of July 13, 1949.

Switzerland

In Switzerland, Article 13, Paragraph 1 of the Federal Constitution regulates the secrecy of telecommunications and grants everyone the right to respect for their private and family life, their home and their correspondence, post and telecommunications . This article is specified in Art. 43 of the Telecommunications Act .

See also

literature

  • Handheld dictionary of electrical telecommunications ; 2nd Edition; 1. Volume A-F; Pp. 436-439.
  • J. Aubert (Ministerial Counselor); Telecommunications law; 2nd Edition; P. 44 ff;
  • J. Aubert (Ministerial Counselor); Are there any supra-statutory exceptions to postal and telecommunications secrecy? Post Office Yearbook, 1956/57; P. 35
  • F. Bardua; in Bonn Commentary on GG Art. 10. Lengning (Ed.), Post and Telecommunications Secrecy. 3. Edition
  • Marc Störing: Everything stays different - Karlsruhe judges the limits of telecommunications secrecy. In: c't . 8, 2006, pp. 58-59.
  • Josef Foschepoth : Post censorship and telephone surveillance in the Federal Republic of Germany (1949–1968). In: ZfG . 57, 2009, pp. 413-426.
    also Peter Mühlbauer : Post censorship and telephone surveillance , Telepolis , June 5, 2009, at heise.de
  • Josef Foschepoth : Monitored Germany. Post and telephone surveillance in the old Federal Republic . 4th, through Edition. Vandenhoeck & Ruprecht , Göttingen 2013, ISBN 978-3-525-30041-1 .
  • Ilko-Sascha Kowalczuk, Arno Polzin (ed.): Be brief! The opposition's cross-border telephone traffic in the 1980s and the Ministry of State Security . Vandenhoeck & Ruprecht, Göttingen 2014. ISBN 978-3-525-35115-4
  • Bastian Schneider, Telecommunications Secrecy and Telecommunications Reconnaissance, Duncker & Humblot, Berlin 2020, ISBN 978-3-428-15964-2 .

Web links

Wikisource: Law on the Telegraph System of the German Reich, §. 8 (1892)  - Sources and full texts

Individual evidence

  1. ↑ Federal Network Agency
  2. ↑ Berlin Senate
  3. ↑ Kai Biermann: BND stores 220 million metadata every day. In: Zeit Online. February 6, 2015, accessed September 15, 2015 .
  4. ^ Keyword search: Secret services monitored more than 37 million e-mails. In: Spiegel Online . February 25, 2012, accessed June 9, 2018 .
  5. ↑ a b c Federal Constitutional Court - Press Office -: Press release No. 79/2009 of July 15, 2009: The seizure and seizure of e-mails on the provider's mail server is not unconstitutional. Retrieved on July 19, 2009 (on the decision of June 16, 2009 - 2 BvR 902/06 -): “The Second Senate of the Federal Constitutional Court rejected a constitutional complaint against the seizure and seizure of e-mails on the provider's mail server turned. It is true that these measures intervene in the constitutionally guaranteed telecommunications secrecy under Article 10 (1) of the Basic Law. The general criminal procedural provisions of § § 94 ff. StPO justify this encroachment on telecommunications secrecy, if the principle of proportionality and the factual requirements of a corresponding design of the criminal procedural procedure are taken into account ... "
  6. ↑ Federal Constitutional Court - Press Office -: Press release No. 79/2009 of July 15, 2009: The seizure and seizure of e-mails on the provider's mail server is not unconstitutional. Retrieved on July 19, 2009 (on the decision of June 16, 2009 - 2 BvR 902/06 -): "... As far as e-mails are stored and evaluated by the investigating authorities, it may be necessary to provide the data subject with information about the data collection in order to enable them to ward off any impairment of fundamental rights. This is taken into account by the special criminal procedural information regulations in accordance with Section 147, Section 385 Paragraph 3, Section 397 Paragraph 1 Clause 2 in conjunction with Section 385 Paragraph 3, Section 406e and Section 475 of the Code of Criminal Procedure and, for those not involved in the proceedings, Section 491 of the Code of Criminal Procedure The limited purpose of data collection generally requires the return or deletion of all copied emails that are not required for the purpose. Section 489 (2) StPO contains corresponding protective measures. "
  7. ↑ StGB (GDR)
  8. ↑ Angela Schmole: MfS-Handbuch, Part III / 19: Telephone control, wiretapping and video surveillance; The Federal Commissioner for the Records of the State Security Service of the former German Democratic Republic; Berlin 2006  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / www.bstu.bund.de  
  9. ↑ Telecommunications Act .