Germany: Speech On Crypto Regulation By German Interior Minister Manfred Kanther

Last Updated: 18 May 1998
This is taken from Christopher Kuner's homepage Click Contact Link where there are further articles regarding the Law of Electronic and Internet Commerce In Germany.

Given at the Opening of the 5th Annual BSI IT Security Congress on April 28, 1997 in Bonn

Translation and Commentary by Click Contact Link , Gleiss Lutz Hootz Hirsch & Partners, Frankfurt

Translation copyright 1996 Christopher Kuner. Reproduction is permitted, provided that this translator's note, including the above copyright notice, is retained in its entirety.

Commentary: The following speech given by the German Minister of the Interior, Manfred Kanther, on April 28, 1997 in Bonn is a significant event in the ongoing crypto debate in Germany. Kanther, a member of Chancellor Helmut Kohl's ruling CDU party and a political heavyweight, is known to favor "law and order" positions, but had not previously made a public statement on crypto regulation. The speech is notable for Kanther's hard-line position, which calls for the deposit of keys by users of encryption. At the same time, the speech should not be taken as a statement of the government's position, but rather as the "wish list" of a significant player in the debate. For instance, other ministers (such as the Federal Economics and Justice Ministers) have recently made statements against crypto regulation, although they carry less political clout within the ruling coalition than does Kanther. Thus, the crypto debate in Germany remains far from settled.

Ladies and Gentlemen,

The Information Society is more than just an expression. It is the result of a technical, economic, and societal development which long ago took on form and shape, and is a great challenge for politics, the economy and society. An industrial nation like Germany should neither close itself to this fact nor to the discussion which must be held concerning it. Much has been said and written about the chances of the Information Society. No one disagrees that Germany as an industrial nation must snatch the opportunities that the Information Society offers in all areas and move forward in this regard if we want to retain our leading role. This is true since information is becoming more and more an economically important factor for production, growth, and business locations.

However, we also cannot reject the challenges presented to the internal security of our country on account of international, cross-border services. We have to contend with reservations, anxieties, and fears which exist regarding any new development. It is thus necessary to find ways to limit the risks presented by the Information Society, to avoid uneasiness and disorientation, and to achieve a high level of acceptance for this development in broad segments of society.

Of course, the new possibilities of modern communication and data processing will also be misused by criminals. Computer criminality has been known to us already for over 20 years. More and more personal data, important business communications, business deals, and financial transactions are being processed and transmitted over modern communications networks. Whatever is done without sufficient security is often practically an invitation to criminals. The fraudulent acquisition of a credit card number by hacking and the corresponding abuse and credit card fraud, or the fraudulent transfer of funds from one account to another, may be done anonymously by the use of electronic means of communication. The perpetrators hide in the anonymity of the networks and destroy their electronic traces, so that a scene of the crime no longer exists. The criminal justice authorities and the police are faced with completely new challenges.

This need not be a reason for resignation. The lead given to perpetrators by technology and the opportunities for abuse connected with it should not be insurmountable for the criminal justice authorities. A realm which is not subject to law should not be allowed to come into being. And here I see a very important role for technology, precisely as a preventative measure. Wherever technology offers possibilities to stop crime at the roots by the integration of corresponding security functions, then there is no need any more for the police and the justice authorities to become active, and certainly not for new laws.

There are now in many areas good examples for the principle of meeting the risks arising from technology with technological means themselves. Think for example of electronic blocking devices in cars, which have allowed us to get a grip on the exploding number of auto thefts, or think of the coding of car radios. In the future, security needs will be able to be and will have to be properly taken into account during the planning of new products and services. In my view this presents also an important task for the BSI. Here one is particularly conscious of creating such security requirements in a continuing dialogue with society and business, and of pointing out good possibilities for protection. However, this is often a challenge for business, and particularly of comprehending the economic opportunities that present themselves in the area of security technology.

Cryptography is a key technology for a secure Information Society, and allows the creation of reliable security in a variety of uses. By use of cryptographic processes we can digitally sign in a secure fashion, carry out secure identity control during access to computers or computer networks, and encrypt information so securely that unauthorized third parties cannot gain access to it.

Encryption to protect confidentiality is a necessary and basic requirement for every serious use of information technology, also for its use by public agencies. Thus, the use of secure and powerful cryptographic procedures is for us essential.

However, this must not lead to a situation where, for example, the wiretapping of telephone calls by gangsters no longer has any value for the criminal justice and security authorities. The legal means of wiretapping must also remain available when telephony is encrypted, which will be the case more and more in the future. The question of whether the use of encryption techniques should be legally regulated is presently being passionately debated. If in several years not only the entire data traffic over the Internet and other networks is encrypted, but also perhaps the classic telephone call, then without any regulation the powers of the criminal justice and security authorities to listen in on telephone and data traffic under the G-10 Law, the Criminal Procedure Code, or the Foreign Trade Law would be practically worthless.

In addition, today there are already technical possibilities to reconcile both interests, i.e., on the one hand to use secure encryption techniques and thus protect the data of our citizens and companies from criminals and economic espionage, and on the other to preserve also the possibility to wiretap conversations by the criminal justice and security authorities.

This can be accomplished by securely depositing the keys used. Any suspicion of misuse can be met by a combination of organizational, personnel, technical, and legal measures. In this respect there is no question of creating new wiretapping possibilities. The objective is to preserve the present informational needs of the criminal justice and security authorities.

Talks with the criminal justice and security authorities on the federal and state level, which we have conducted with increased frequency in the last few months, clearly demonstrate the urgent need to act. They require a regulatory system which requires that the user make mandatory use of systems which allow for legal wiretapping. I find this requirement to be substantively justified. If we expect policemen and -women to put their safety on the line for us, then we must ensure them optimal working conditions.

The opposing arguments cannot stand up to critical examination, for instance the argument that it is possible to hide any text and make it untraceable to the security authorities by the use of steganography. Aside from the overrated security value of steganographic techniques, they will in the foreseeable future not extend to the normal telephone communications which interest the criminal justice and security authorities. Furthermore, experience demonstrates that the possibilities for evasion, which still require one to go to a certain amount of trouble, are generally not used by precisely those in whom we are interested. And even if they are used, the police can in many cases draw certain conclusions therefrom which can promote investigations. The primary goal must therefore be to construct and establish an infrastructure in Germany which sufficiently takes into account the interests of the criminal justice and security authorities. At least in this area, business cannot accuse the Federal Government of not pointing out the legitimate interests of internal security in a timely fashion.

The global networks pose a further significant challenge to domestic policy. Here I would like to contradict those who make sensational arguments that the Internet us a network which primarily serves criminal interests. The same principle that applies in the real world also applies in the virtual world: where there is light, there are also shadows. And you can be sure of one thing: the Internet is not a realm which is not subject to law. We shall concern ourselves with this dark side and will fight it resolutely.

This should not give rise to the impression that legislative and administrative measures have the goal of restricting by preventative or repressive action the legitimate civil rights of citizens, particularly the right of free expression.

Industry's contribution is also important in this area. I would like to expressly welcome the activities of the major service providers to form an organ of voluntary self-control and to produce a uniform code of conduct. In view of the political goal to reduce the role of the state there should be no need for governmental intervention, to the extent that self-regulation by the particular branch of industry leads to comparable or even to better results.

In such cooperation of service providers I also see the basis for successful technical measures against abuse of the Internet by the spreading of illegal and harmful content, since the introduction of uniform, non-proprietary procedures for content classification is the essential condition for corresponding filter programs.

However, we will not be able to avoid a certain contribution by the state. The technical and organizational competence of those authorities responsible for fighting computer crime must be further strengthened. Such authorities can have no lasting successes without the best possible technical equipment and highly-qualified personnel.

The Federal Government has swiftly responded to the need for legislative action to create appropriate conditions for the Information Society by the Information and Communications Services Law, which has already been presented to the public. One of its main elements is Article 3, the Digital Signature Law, which describes the conditions under which an electronic signature - known in international terminology as "digital signature" - can be deemed secure.

The legislative digital signature creates considerable security for our entry into the Information Society by practically excluding the possibility of forging or falsifying "digital documents", or of making such forgeries or falsifications undetectable.

The present draft legislation was drafted from the beginning in close cooperation with experts from business and academia, and is strongly supported by companies and trade associations. The doubts which the Federal Council (Bundesrat) has expressed basically concern private certification authorities and their reliability. The Digital Signature Law and the supplementary Digital Signature Ordinance set clear security goals which must be demonstrably satisfied by operators of certification authorities. A high degree of security is thereby guaranteed which could hardly be higher, even for a public agency.

The Federal Government will, in agreement with business, thus hold fast to the private sector solution. A government solution would also hardly be in harmony with general cries for "slim government".

The BSI stands at the center off all the developments I have described. In past years we have always been able to obtain there competent advice in all questions of information security. The BSI has thus become an important advisor on policy questions.

As the central agency for IT security of the federal government it has also become indispensable for the public administration. I have noticed that its acceptance and resonance within the public administration, as well as in broad circles of the population and in business, is increasing, and that the importance of IT security is penetrating into the consciousness of more and more people in our country, not least because of the work of the BSI.

Since 1993 the BSI conducts approximately 300 consultations on IT security annually. However, the BSI is also active outside the narrow realm of the federal administration. Its competent and neutral advice is also sought when strategic plans are at issue. In cooperation with the German Bundesbank and in the future also with the Federal Office for the Financial Sector, the BSI has begun as a preventative measure to perform security analysis on new payment mechanisms. The first examinations of the electronic purse have been completed. Deficiencies which were discovered, some of them serious, have been notified to the operators, who intend to make corrections. As a neutral institution which is not oriented toward financial gain, the BSI can perform a service for society which otherwise no one could.

A further product of the BSI is the Handbook on Basic Protection that has also found many users in business, owing to the high efficiency with which it allows security to be created. This makes me particularly happy, since I continue to have the impression that business underestimates the dangers which can be caused by defective technology, failures in normal usage, and economic and competitive espionage.

Ladies and Gentleman, the BSI's accomplishments are considerable. Its establishment over six years ago has proven to be correct. Present technical and social developments mean that we need it more than ever. The task now should be to maintain and improve the BSI in its basic conception as a lean, technically-oriented and powerful public agency, and to adapt it properly to the current, quickly-changing conditions. I am confident that this will succeed. I wish the BSI success in its work and hope that this Congress is also successful.

For further information, please contact

Christopher Kuner/Markus Deutsch
Gleiss Lutz Hootz Hirsch Rechtsanwalte
Gartnerweg 2, 60322 Frankfurt/Main
Germany
Fax No: ++49/69/95514-198
Tel No: ++49/69/95514-106
E-mail:  Click Contact Link  or
         Click Contact Link 

The article is correct to the best of our knowledge at the time of publication. However, the legal situation at the administrative practice of the Regulatory Authority may be subject to changes. Therefore, the article is only a general guide. Specialist advise has to be sought as regards your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions