Sascha Lobo on data retention: More no is not possible

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Interior Minister Nancy Faeser (SPD): Some need drastic arguments

Photo: Kay Nietfeld / dpa

A probably excellently working instrument against many forms of crime would be a rigidly enforced curfew for men between 7 p.m. and 6 a.m.

Every day, all men, everywhere in Germany.

After some serious thought, most civilized people would conclude that this is actually not a viable way to fight crime.

It would not be constitutional anyway, and not at all.

This would clarify that not all methods that are demonstrably or probably used to fight crime are also useful or even feasible.

This example may sound drastic, but some people need drastic arguments to understand, even with fundamental rights.

And some don't even achieve that. Which brings us to a bizarre political ritual: When people from the Union or SPD become interior ministers, they demand data retention, usually in accordance with the authorities under their authority, such as state or federal criminal investigation departments.

Unprovoked data retention is a zombie of digital politics, it comes over and over and over and over again.

Legally, it is already deader than dead - because the European Court of Justice has declared it inadmissible.

Multiple.

Just like the Federal Constitutional Court.

Sometimes in bulk, sometimes in crucial details.

But she was always rejected.

The current German variant of data retention also violates laws, conflicts with fundamental rights and is incompatible with the values ​​of liberal democracy, as long as

is not at stake.

More no is not possible, the world would only say no to data retention without cause if it were to explode as a precaution.

But probably even in the event of the planet detonating, Home Secretary Nancy Faeser would still try to introduce data retention once or twice.

Fundamental rights landscape of impertinence

Wait, some people who are only slightly interested in the social imponderables of networked technology may now exclaim – the retained data what?

Unreasonable data retention could also be called anticipatory general surveillance, because in fact that is exactly what it is: With the occasional data retention, the state does not allow any communication content to be retained, but the telephone and Internet connection as well as location data of all people are retained, in case anyone possibly doing something forbidden.

For the FDP and the Greens within the traffic light, data retention has not been acceptable for many years.

But in the past the CDU was the CDU and now the SPD is the SPD.

Of course, one could briefly (very briefly) argue from the point of view of data retention fans.

For example, from the point of view of some investigators, it is an enticing prospect to be able to fall back on a huge reservoir of highly personal data in any form of digital dubiousness.

But one key achievement of the rule of law is diametrically opposed to this.

A suspicion is needed so that the police, for example, can shine a light on people's intimate areas of life.

And on Tuesday, the ECJ once again made it clear that connection data also enable such insight.

But even if one wanted to hide this landscape of unreasonable demands under fundamental rights, which has been confirmed by the highest court, the situation would become less and less plausible.

Because when the idea for data retention came up, the digital sphere was a completely different one.

Why is this relevant?

Because there has been a major shift in recent years in the form of crime that serves as the main justification for baseless data retention in most cases: documented child abuse.

Unfortunately, this catastrophic crime has been catapulted to new dimensions by the Internet, against which drastic countermeasures are urgently and urgently needed.

Who would deny that?

However, to put it mildly, even the last child abuser is aware that he is doing what is forbidden.

Which is why a significant proportion of the worst crimes, in particular, now take place on the Darknet.

Where data retention is exactly useless.

So really: nothing.

Because the technology is designed solely to obfuscate who is connecting to which site.

The situation is similar in the dark web of the little man, i.e. the more or less encrypted messengers like Telegram.

But you know, or better: do the messenger operators know the phone number, which in turn is suitable for identification.

Which means that if there was a suspicion, there would be an approach that would work well, at least in theory.

But only if there is suspicion.

Overall, as in a kind of rearmament spiral by criminals, digital crime has shifted to a large extent in other directions than the one in which data retention could do something.

In other words, the arguments of the advocates for monitoring the connections of all people in Germany without cause have always been weak, see the rejection by the highest courts - and they are also becoming weaker and weaker.

However, the pro-arguments detonate completely with a simple insight: data retention is actually supposed to save money.

huh

Of course, there is no denying that for a second, the advocates really do care about the well-being of abused children and the protection of children who have not yet been abused, or at least that is what they

about.

But interior ministries and law enforcement agencies see data retention primarily as a way to save money.

Because there are means to get this catastrophic problem under control, but they are expensive.

These are well-trained, flesh-and-blood investigators who would have to invest their valuable time.

It is about the structured evaluation of the gigantic data sets that are regularly confiscated.

For which technologies, i.e. expensive hardware and software, and appropriate, capable personnel are needed.

Investigators therefore say, openly or behind closed doors, that the actual battle is not being fought online, or is no longer being fought, but offline.

And that costs money, especially in times when more money for civil servants and the public service may not appeal to everyone politically.

It would still be necessary.

In order not to have to meet this necessity or not so expensively, it should just fix the data retention.

The providers then do part of the work, storing everything and making it accessible, which in turn is paid for by the public.

Yes, with data retention, people are paying for their own surveillance, all of them.

Browsing history of all people in Germany

If you are still not convinced that it is actually about money in the end, you can simply look at reality.

That often helps.

Because, especially from the two parties in the government who do not want data retention, there are a large number of counter-proposals, offers, alternative approaches, which sometimes even come along without an insane amount of additional staff.

The FDP has proposed a so-called “quick freeze” procedure.

The decisive identification data are the IP addresses of those who have visited certain websites.

In essence, data retention is about being able to access a kind of browser history for everyone in Germany.

With Quick Freeze, the investigators can call out to the providers if there is a concrete suspicion on a court order. Attention, please save for case XYZ.

Then it is stored for a short time and the data is also released with a court order.

That sounds like a good compromise, but only for people who see the bizarre zombie ritual of data retention as just that anyway.

The Ministry of the Interior rejected the FDP proposal as, quote: "not practical".

Anyone who deals with political official speech knows that there are many interpretations for this, but the most likely one is: It is somewhat more complex and therefore cannot be carried out sufficiently well with the current staffing levels and processes.

So again a lack of money for trained staff and restructuring that should not be invested.

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Sasha Lobo

Reality shock: Ten lessons from the present

Publisher: Kiepenheuer&Witsch

Number of pages: 400 pages

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Incidentally, a digital administration between the judiciary and the executive would be a possible solution to the problems.

Because most providers store the crucial data for a few days for technical reasons, and if the police and courts were faster digitally, they could get the data with the appropriate court orders in quite a few cases without data retention.

But, even the most stubborn fighters on both sides will have to admit that there is only one thing more unlikely in the next 20 years than for interior ministers from the Union and SPD to stop calling for data retention.

Namely that the judiciary and the police apparatus are successfully and efficiently digitized.

So everyone keeps fighting, no matter what is in any coalition agreement, until another court throws everything out.

Or someone introduces a curfew for men between 7 p.m. and 6 a.m.