Germany. Full Digital Identification of Online Users Impracticable | Context

The German Federal Council is examining whether in Germany, every user of social networks, and every online gamer, ought to be subject to identification requirements. The German federal states of Lower Saxony and Mecklenburg-Western Pomerania have submitted one such proposal to the Federal Council. According to Lower Saxony’s Interior Minister Boris Pistorius (SPD), social networks, messenger services, and online gaming platforms should be obliged to scrutinize the true identities of users and to store these long-term. This way, German authorities should be able to find authors of hate messages, but also be able to query the data in advance of criminal offenses, according to a news article.

Options of Technical Enforcement

The two federal states want users to give their names, addresses and dates of birth when registering for the platforms, and that these data are, necessarily, to be double-checked by the platforms. The use of nicknames would still be legal, though enforcing the use of real names would prove far easier to implement than the far-reaching checks proposed by Pistorius. His initiative is now being examined by several specialist committees of the Federal Council, before an actual legislative initiative can be initiated.

Technically, new users would have to present their passport, or ID, at the local German post office, or to identify themselves with such documents by video session before using the platforms – as is already mandatory when buying mobile prepaid SIM cards with German phone numbers. Only in this way, Pistorius seems to believe, can a illegality on the Internet be prevented. In fact, many users spread hatred hiding behind anonymous accounts. Identification data would speed up investigations and prosecution for slander, insult, or even threats against the physical integrity of possible victims. In the past, Pistorius had called for platforms to operate their servers in Europe, and for imposing high fines on them, in case of non-cooperation with the authorities.

Lack of Practicability

The biggest issue with the aforementioned legislative initiative is the lack of practicability. Besides users having to register for each service separately, social networks, messenger services, and gaming platforms from abroad would in future have to store user data from Germany. This is associated with a great amount of effort. Technically, the legal project is difficult to implement. What would happen, for example, to German users who pretended to be abroad? What are the obligations of German users who are actually abroad but use social networks, messenger or games based in Germany?

Legally, the IP of Internet users can already be requested by the German authorities from the service providers. It is, however, possible for a user to disguise and anonymize his specific IP. Will systematic agitators be so honest as to register as residents of Germany? Bottom line: the identification measures would only ward off the more honest of agitators based in Germany.

There are also antitrust problems. If all platforms used from Germany were forced to comply with the obligation to fully identify, they would have to cooperate with video identification services that have access to German ID documents. This would prove very expensive.

Finally, there would also be significant security risks if foreign providers not only knew names and dates of birth, but entire addresses of German users. After all, the providers must safeguard the data. Numerous leakages regarding sensitive datasets, often stored unencrypted, prove that this level of safety is not always given.

A Fence to the Freedom of Information

Federal Minister of Justice Christine Lambrecht (SPD) wants the identification of hate postings by IP identification to be “much more straight-forward in the future” – by having platforms report punishable posts, which they learn of, to the Federal Criminal Police Office (BKA). That seems wiser than full identification for each platform – by the way an interference in the freedom of information enshrined in the Basic Law, the German constitution. The authorities might instead work with providers of digital disguise, prompting them to provide data once a crime can be proven by the authorities.

Truth be told, Internet hate speech has recently increased. Many users dare more in the age of fake news than they did in the past. The question is to what extent, given the lack of full identification, investigative proceedings are currently being discontinued, or not initiated at all, by the German authorities. The latter not only fear an increased effort of investigation, but may also decide on a case-by-case basis. Before far-reaching steps with repercussions on privacy and freedom of information are implemented, the existing legal provisions should be enforced more stringently.

Thorsten Koch, MA, PgDip
14 February 2020

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