By Flemming Moos

On May 27, the Administrative Court of Karlsruhe passed its judgment in a case that had attracted major public interest in the German media because the former prime minister of the State of Baden-Wuerttemberg was a party in the proceedings. However, the judgment is of interest not only for its political but also its legal impact.

In 2010, when the prime minister was still in office, he had been having technical problems with his e-mail inbox. Therefore, his whole inbox was copied and the backup copy stored on an internal server. The backup was supposed to be of help in case a similar problem occurred again. In May 2011, the prime minister had to leave office as he was not reelected. Before leaving office he deleted big parts of his e-mail correspondence from his inbox. These deleted e-mails currently are of special interest to the State of Baden-Wuerttemberg in separate proceedings and trials. Then, in summer 2012, the long forgotten backup was rediscovered.

The court was confronted with the question of whether the prime minister’s emails could be recovered using the backup copy. The court held that the copy could not be used for this purpose because Sec. 14 para. 4 of the State Data Protection Act Baden-Wuerttemberg (Landesdatenschutzgesetz Baden-Württemberg, “LDSG BW”) explicitly states that “data recorded exclusively for purposes of (…) safeguarding data or ensuring proper operation of a data processing system may only be used for these purposes.” The court added that backups, in general, may be accessed when the original data is lost but only if and to the extent that the data was lost due to an event that the backup copy was created for. As the backup in question only was created for the purpose to prevent data loss in case of further technical malfunctions, the state was not allowed to access it for any other purpose. Therefore, the prime minister’s correspondences remain a secret.

Even though Sec. 14. para. 4 LDSG BW only applies to public entities, the ruling also offers a valuable lesson for businesses. Because the basic principle that data may only be processed for specified and explicit purposes applies to every entity, businesses should evaluate the policies governing their backup systems. If these systems are only set in place to prevent data loss due to technical malfunctions, the backup might be worthless if a deletion occurs for other reasons and the company might be barred from using the backup data.

American “Prism” Program: Criticism from German businesses and Politics

Reportedly, the program “Prism” allows the U.S. National Security Agency (NSA) to access the data collected by several American businesses including Amazon, Apple, Facebook, Google and Microsoft. The exposure of the program caused concerns among politicians as well as the business community in Germany:

The German government initiated a meeting of the Federal Minister of Justice, Sabine Leutheusser-Schnarrenberger and the Federal Minister of Economics and Technology Philip Rösler with representatives of Google and Microsoft in which they unsuccessfully seeked information about the extent of the program and the data being transferred and processed. Parliamentary State Secretary at the Ministry of Economics and Technology Hans-Joachim Otto afterwards demanded to harmonize data protection laws in Europe and the U.S. EU Justice Commissioner Viviane Reding took the opportunity to reemphasize the need for clear legal guidelines.

But not only German politicians are worried about the revelations. BITKOM, the Federal Association for Information Technology, Telecommunications and New Media, which represents more than 2,000 companies in Germany, published a press release in which it warns that trust in future technologies might get lost. Furthermore BITKOM required German Federal Chancellor Angela Merkel to address the issue of data protection in the upcoming visit of U.S. President Barack Obama. The “Bundesverband IT-Mittelstand e.V.,” an association representing 800 medium-sized companies, even suspected that the U.S. possibly use their superiority in the internet for industrial espionage.

While in recent times the public attention was rather focused on the protection of data by large private businesses, it seems to be shifting in Germany after Prism has been made public.

Flemming Moos is a partner at Norton Rose in Germany and a certified specialist for information technology law. He chairs the IAPP KnowledgeNet in Hamburg and can be reached at flemming.moos@nortonrose.com.

Read more by Flemming Moos:
GERMANY—New Rules for Government Access to Telco User Data
GERMANY—Berlin Court Declares Apple’s Privacy Rules Void


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