Interview with SPD member of parliament jorg tauss on the emergence and possible impact of the law on data retention
After the SPD parliamentary group had passed a law on data retention even before the court decisions on its legality, which in several respects clearly goes beyond the directive formulated by the EU, the words and deeds of the social democratic members of parliament were compared not only in telepolis – which in part led to results that triggered a rough echo. SPD member of the bundestag jorg tauss criticized that these comparisons were political "mixed situations" omit were. We therefore gave him the opportunity for an interview.
Jorg tauss. Picture: SPD mr. Tauss – do you think a law for data retention, which instead of only for "heavy" for "all crimes committed by means of telecommunications" crimes, in fact, for a "minimum implementation" the EU directive? Jorg tauss: this is not the minimum implementation – this is also a suspension requested by the bundesrat, which was part of the compromise, but which I also have reservations about. But exactly with this pas the draft was introduced by you. The ORF (austrian broadcasting corporation) proved to the austrian minister of justice that she had not read her own draft of an amendment to the treaty. Had they read the text before? Jorg tauss: yes of course. I also negotiated this text – right up to the last minute. With the justice minister, with the interior and with the legal politicians. And it is clear: when I negotiate, I also run the risk of having to make one or the other compromise that does not suit me. But if I want to make a difference in politics, I have to be able to compromise, and unfortunately I can’t just push through my own opinion. The german implementation of the directive also extends to data that does not have to be stored according to this directive – but according to the implementation resolution you introduced. Jorg tauss: the decision, which concerns the minimum implementation, was made in the last legislative period in the german bundestag. Ubrigens with a rough parliamentary majority. And it was to me – if you will – a guideline for action and orientation, to which others (such as the bundesrat) did not have to feel bound. In the meantime the bundesrat had even started a discussion to extend the storage periods considerably. At this point, we stuck to our line of the bundestag of the minimum implementation, namely six months. However, I had to swallow kroten again at another point. But now I had actually asked about the data that are stored – not about the deadlines. Jorg tauss: there is obviously a lot of hullabaloo in europe. I see it with great interest that great britain for example (which has vehemently insisted that we come to data retention at all) in the meantime intends to make other rules in the area of mobile telephony, SMS and MMS sending – also to protect its telecommunications industry. In this respect, it will be very interesting to take another look at these details of implementation and, if necessary, to draw conclusions from them as far as changes are concerned. You said that you consider data retention to be a blatant attack on citizens’ rights. Other politicians who have made such an assessment known have taken part in protests or are themselves seeking a test case or a constitutional complaint – why not you?? Jorg tauss: because, first of all, I am naturally in a different role than an opposition politician. I have presented my concerns in all clarity. However, I then also said that I stand by the compromise. And I have always said: if I find that the compromise does not hold up under european law (because europe is not competent at all), if this compromise does not hold up under constitutional law – then I feel that my skepticism is confirmed rather than proven wrong. By the way, I reserve the right – regardless of the fact that I am fighting for a minimum implementation within the bounds of what is possible in germany – to go to the federal constitutional court together with others. What I have also said openly in all clarity. Together with gerhard baum, by the way, at a conference of the friedrich ebert foundation in july of last year. However, it must also be said clearly that the legal skepticism as to whether such a lawsuit would be successful in karlsruhe is much greater than in other matters. This means that one cannot be sure that the federal constitutional court will follow the opinion of ms. Leutheusser-schnarrenberger (and possibly also mine). We will have to see that then. But in case of doubt I will join a lawsuit. I said this clearly at various points. Also to mr. Baum, who, however, has already conveyed to me his own legal concerns about the prospect of such a lawsuit. Especially since there is a parallel lawsuit pending before the european court of justice. It is possible, however, that this action by the irish government (which was not brought because of civil rights concerns, but for completely different reasons) is more helpful than the one before the federal constitutional court. You said at the time of the implementation decision that you had to implement an EU directive, whether you wanted to or not. According to the basic law, every member of parliament is only bound by his or her conscience. Is a political practice that "parliamentary group discipline" and sees guidelines from brussels as higher authorities, still in conformity with the constitution? Jorg tauss: the conscience decision of a delegate is completely untouched – all the same whether it concerns the parliamentary group discipline, or around europe or around similar. Because, of course, I had also had the opportunity to vote against it. With an appropriate communication to the parliamentary group leadership – as I did with the law to the computer criminality. But (and this is difficult to convey to the public): parliamentary work and political work consists of not sulking and retreating to one’s own doctrine in case of doubt, but of working on a compromise. I had the same situation before, when I was doing collective bargaining for IG metall. Not all compromises I had to make with the employers suited me. But I’m not going to make a compromise and then run around crying about how terrible the compromise is. I have to work on it. But I can also say after a collective bargaining: this time, the power relations were not yet such that more can be achieved. And that’s how I feel about this law: if more can be achieved after the legislative process – whether in court or through political majorities – then I will work on it just as I tried to work on the compromise. With the data retention and many other measures of the last years, what has been implemented in the legal debate under the catchphrase "enemy criminal law" runs. At the same time, the measures almost never affect enemies of the cause, but ordinary citizens who could be prosecuted for common offenses such as insult or file sharing. Where is the legislative initiative for a prohibition of the use of evidence, which takes into account the interdiction?? Jorg tauss: it is possible that interdiction has already been achieved via this now highly controversial legal regulation on data retention. We have built in a whole series of hurdles in other places – with judicial involvement or the like. I do not believe that the judiciary would be well advised to use this instrument for everything and anything. It would then simply be incapable of action, so that I in fact ame that it will essentially confine itself to serious criminal acts. But it is also quite clear (I agree with your colleague heribert prantl from the suddeutsche zeitung) that we have an erroneous development in germany, which is very much moving away from a constitutional state to a preventive state. And these are all parts of a preventive state that fills me with unease. If you reject a ban on the use of evidence for these reasons – wouldn’t it be time instead for a rough de-trumpeting of the criminal law, which would be a good thing? "Virtual" crimes in which no one is subjected to violence are transferred to civil law and the law of administrative offenses, and violent crimes are punished more severely? Jorg tauss: I am not at all against a debate about a ban on the use of evidence. At the last minute, we have improved the law in favor of journalists – for example, in the case of accidental discoveries when it comes to the question of betrayal of official secrets. So – there is definitely a sensitivity there. The de-trumpization of criminal law is something that is naturally a constant task. I am indeed of the opinion that a lot of things could be possible. In recent years, we have also seen a development in which telephone and telecommunication surveillance has been constantly expanded with reference to criminal law. This is a problem that must be discussed and, in my opinion, must be addressed by legal politicians. But again: I need majorities for this as well. I am an education, research and media politician, not a legal politician. And as long as there is not even a majority for such considerations in the area of legal policy, we will have to work further in the socio-political and party-political area. The prohibitions on the use of evidence that you mentioned only apply to certain details. If a house search is ordered on the owner of an IP number – for example, because of an oversight by the authorities, a trojan horse or a WLAN that is not sufficiently secure – and an unlicensed windows is found, then this can or must also be exploited. Jorg tauss: that’s right – if there is a suspicion of a criminal act here. No question. I am, however, of the opinion that the practice here will lead to fewer problems than were feared. Already because of the handling of what was then anlage. But it is true that another step has been taken here in the direction of a preventive state, as we have already discussed. Nevertheless, very many of the criminal cases now initiated, for which IP numbers are requested, are copyright offenses and insults in forums. Jorg tauss: the copyright crimes are something that was brought to us by the EU. I have also a not quite insignificant problem with it. Also with the way this came about in the european parliament. I would like to note, however, that the judiciary does not want to become a stooge of the industry, but continues to refer to civil law. The development remains to be seen. In this context, I am much more concerned about the warning system used by law firms, which build their entire business models on it. Here we will have to deal with the warning system separately in order to arrive at more favorable solutions. I believe that we could achieve more in this area. As far as insults in forums are concerned, we have a situation where, on the one hand, we want gross freedom of speech and, on the other hand, we want to have the right to make our own opinions heard. But we have cases in practice, where in forums allegations are made or posted on the net, up to character assassination. For example, by asking the question ‘have you heard that he or she is bankrupt??Such a thing brings considerable disadvantages for a company, which then cannot defend itself at all. This is partly about the existence of people. And to use connection data at this point – I think that’s a point that needs to be discussed very openly. And where I also have a certain understanding that the exploitation, which I have to accept in other areas to my disadvantage, can also be done in my favor.