Germany: Statements By German Business Against Crypto Regulation

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.

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: Contrary to the impression often given by US government spokesmen that sentiment in foreign countries favors key escrow, German business has taken a consistent position against mandatory "key escrow" and the regulation of cryptography. The following translations of statements released by major German companies and business organizations illustrate the opposition of German business to crypto regulation. The German branch of the ICC has also prepared a "Draft Working Paper on Crypto Policy", a translation of which is available on this site.

Statement by the Bundesverband der Deutschen Industrie e.V. (BDI)

October 15, 1996

Commentary: The following is part of a statement on the draft digital signature law issued by the Bundesverband der Deutschen Industrie e.V. (BDI), the main trade association of German industry. Only the paragraphs dealing with encryption are translated here.

"No prohibition of encryption

In addition, it is important for industry that no regulations on encryption be subsequently submitted. A later legal prohibition on encryption would not only stand in opposition to the purpose of the digital signature law, but would not correspond with the interest of business in protecting computerized data transmissions from third parties."

Statement by the Daimler-Benz Group

December 1, 1996

Commentary: A statement on the German draft "Multimedia Law" was released by Daimler-Benz, the largest industrial group in Europe, on December 1, 1996. The statement was signed by Dr. Alfred Bullesbach, the main data protection officer for the Daimler-Benz group, and Dr. Joachim Riess. Only the paragraph dealing with cryptography regulation is translated here.

"Procedures for digital signatures are dependent on cryptographic procedures. Cryptographic procedures are becoming one of the basic technologies both for the protection of authenticity and integrity and for protection of the confidentiality of electronic documents in telecommunications. The use of such procedures should be possible on a worldwide basis without restriction. Legal, technical and political restrictions on the use of such procedures hinder the further development of such technologies and improvement in the security of telecommunications procedures. A restriction on the use of cryptographic procedures for reasons of domestic or foreign security is practically impossible, since such procedures have been published and are available. Regulation of the use of cryptographic procedures for the purpose of only permitting such procedures which allow decryption also for third parties is not suited for the effective control of possible criminal or subversive communication. The use of unapproved but secure procedures could practically not be controlled. On the other hand, those using approved procedures could not really depend on the confidentiality of communication. In addition, such regulation would hinder technical development, restrict the provision of services, effectively weaken trust in the security of electronic communication, and hinder secure, international electronic communication. The real goal should be to pursue a European policy which does away with existing barriers on the use of cryptographic procedures."

Statement by Teletrust e.V.

February 12, 1997

Commentary: The following statement was released by Teletrust, a German industry group concerned with security in electronic communications, and which includes as its members many of the leading German companies active in the area of cryptography and digital signatures. The statement was released by the "Committee on the Legal aspects of Binding Communication", and is signed by four members of the Committee: Dr. Johann Bizer, a law professor at the University of Frankfurt; Paul Mertes of Deutsche Telekom AG, Dr. Joachim Riess of debis Systemhaus (Chairman of the Committee); and Prof. Dr. Alexander Rossnagel of the University of Kassel.

"Governmental restrictions on the production, supply, and use of cryptographic procedures used to protect the confidentiality of information and messages in communications systems would violate the civil rights of economic development under Art. 12, para. 1 and Art. 2, para. 1 of the German Basic Law, of the confidentiality of communication under Art. 10 of the Basic Law, and of informational self-determination under Art. 2, para. 1 and Art. 1, para. 1 of the Basic Law.

Legal rules which only allow those cryptographic procedures that permit access by the criminal and security authorities or provide for the deposit of a copy of all keys and similar procedures are not proportional. They are not suited for effective protection of the legally-protected values of internal security. Cryptographic procedures are distributed worldwide (e.g. over the Internet) and can be accessed freely at little cost. Thus, even the (small) group which is subject to legal wiretapping has access at any time to encryption procedures which cannot be decrypted, which possibility cannot be prevented.

Even the fact that a message is encrypted can be effectively hidden both from third parties and from government security authorities by the use of steganographic procedures. The use of non-permitted encryption procedures cannot be effectively prosecuted. In view of the legitimate and constitutionally-protected interests in protecting one's private or business messages against the risk of being wiretapped, there are narrow constitutional limits placed on legal rules which would subject the use of cryptographic procedures to criminal penalties. Corresponding provisions of criminal law are, therefore, constitutionally invalid owing to the lack of certainty. Governmental restrictions on the use of specific cryptographic procedures thus have practically no deterrent effect.

In view of their obvious inappropriateness, procedures which oblige manufacturers and sellers to keep duplicates of private decryption keys as a precaution for possible governmental wiretapping violate the prohibition of excessiveness. Storing keys in advance or other procedures by which third parties could access encrypted documents would on the whole make cryptographic procedures insecure. The trust of customers and users in such procedures would also thereby be severely weakened, which would have negative effects on the market for services in this area. This would also criminalize the use of cryptographic procedures which were not controlled or monitored by the State, and would lead to the creation of a black market for such products.

A restriction on cryptographic procedures is unconstitutional because of the unproportional economic expenditure which would have to be made by producers and sellers of security technologies in order to develop and provide the necessary technical and organisational requirements for key management, which measures at the same time are not suited for effective protection of domestic security.

Citizens, consumers, and business, including also many users who are obligated to observe professional secrecy, have a constitutionally-protected interest to communicate confidentially. But cryptographic procedures serve not only the protection of confidential communication (encryption), but also legal certainty (digital signatures). Governmental restrictions on cryptographic procedures would be out of proportion to the risks and damages for confidential and legally-certain communication which would arise. Moreover, any legislative initiative which restricted cryptography would stand in opposition to efforts to make Germany attractive as a place to do business with regard to new information technologies."

Visit Christopher Kuner's homepage Click Contact Link for more articles regarding the Law of Electronic and Internet Commerce In Germany.

For further information, please contact

Christopher Kuner/Markus Deutsch
Gleiss Lutz Hootz Hirsch Rechtsanwalte
Gartnerweg 2, 60322 Frankfurt/Main
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

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”

Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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