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The German Federal Ministry for Digital and Transport (Bundesministerium für Digitales und Verkehr – BMDV) has drawn up a brand new draft invoice which shall introduce:
(i) a statutory obligation for suppliers of number-independent interpersonal communication companies (e.g. immediate messaging companies) to permit their customers to make use of end-to-end encryption (“E2EE”), and (ii) a statutory transparency obligation for such suppliers to tell their customers accordingly; and
a statutory transparency obligation for suppliers of sure cloud companies to tell their customers about how one can use steady and safe encryption (“Draft Invoice”).
The Draft Invoice (standing 7 February 2024), which doesn’t have any foundation in EU legislation, is out there right here (German content material).
Abstract of Draft Invoice
Primarily based on the findings within the German Federal Cartel Workplace’s (Bundeskartellamt – “BKartA”) latest report on its sector inquiry into messenger and video companies (German content material), which centered on the problems of information safety and information safety (English abstract out there right here), the reasoning of the Draft Invoice states that:
“Though end-to-end encryption is now the business commonplace, some messenger companies don’t apply end-to-end encryption in any respect or solely use it for sure features, with out this being justified by technical restrictions.” Below the Draft Invoice, the Federal Telecommunications and Telemedia Knowledge Safety Act (“TTDSG”) shall be amended to require suppliers of number-independent interpersonal communications companies, comparable to e-mail, messenger and different chat companies, to (i) implement for his or her companies E2EE by default or (ii) be sure that customers can use E2EE, wherever technically possible. The Draft Invoice acknowledges that E2EE is topic to technical limitations the place sure companies or many customers are concerned, comparable to in video conferences and webinars.
This obligation is complemented by a transparency obligation. In essence, beneath this transparency obligation suppliers shall inform customers about (i) the implementation of E2EE by default, (ii) how E2EE can be utilized, or (iii) technical the reason why E2EE shouldn’t be possible, as relevant.
Suppliers of cloud companies that allow their customers to retailer their information shall even be topic to an identical transparency obligation. They shall be obliged to offer customers with details about how one can shield their information saved within the cloud with steady and safe encryption. Notably, web page 7 of the Draft Invoice means that companies that disseminate info of their customers to the general public shall not be topic to this transparency obligation. In our view, this may lead to ‘on-line platforms’ inside the that means of Article 3(i) EU Digital Companies Act (“DSA”) to be out of scope, until additionally they present number-independent interpersonal communication companies.
Non-compliance with the transparency obligation to tell customers shall represent an administrative offence and lead to an administrative advantageous.
Based on the Draft Invoice, the deliberate proper to encryption shall improve acceptance for the widespread use of encryption applied sciences among the many inhabitants, companies and public establishments:
“It’s a vital contribution to guaranteeing the basic rights to the secrecy of telecommunications and the confidentiality and integrity of knowledge expertise methods and to cybersecurity”.
How does the Draft Invoice align with different pending legislative tasks?
Interaction of the Draft Invoice with present developments on EU degree
The Draft Invoice aligns with present developments on EU degree, particularly the proposed everlasting regulation laying down guidelines to forestall and fight youngster sexual abuse. This proposed EU regulation is meant to impose certified obligations on suppliers of internet hosting or interpersonal communication companies (and different companies) regarding the detection, reporting, eradicating and blocking of recognized and new on-line youngster sexual abuse materials (“CSAM”), in addition to solicitation of kids (“Proposed CSAM Regulation”):
In Could 2022, the European Fee printed the primary legislative proposal for the Proposed CSAM Regulation. In its latest Report of 16 November 2023, the European Parliament’s Committee on Civil Liberties, Justice and House Affairs (“LIBE”) beneficial to introduce a fairly vital exception to the textual content of the Proposed CSAM Regulation: Finish-to-end encrypted communications shall expressly be exempted from detection orders beneath the Proposed CSAM Regulation. Moreover, nothing within the Proposed CSAM Regulation shall be interpreted as prohibiting, weakening or undermining E2EE. LIBE expressly pressured that:
“end-to-end encryption is a crucial device to ensure the safety and confidentiality of the communications of customers, together with these of kids”.
The nationwide information safety authorities of EU Member States expressly welcomed the LIBE’s proposal to exempt end-to-end encrypted communications from detection orders beneath the Proposed CSAM Regulation (cf. European Knowledge Safety Board (EDPB), Assertion 1/2024 of 13 February 2024).
Challenges emerge, nevertheless, with regard to the EU Digital Markets Act (“DMA”). Article 7 DMA requires number-independent interpersonal communications companies from “gatekeepers” to be interoperable. Based on BKartA’s sector inquiry report, the idea of market-wide interoperability of companies with E2EE is a difficult situation. That is as a result of many particular person options in the marketplace and the technical challenges posed by interoperability.
Interaction of the Draft Invoice with present developments on nationwide degree
Germany is presently in the middle of adjusting its nationwide legislation provisions to align with the DSA: A draft invoice for a German DSA Implementing Act is presently within the legislative course of. As soon as enacted, the German DSA Implementing Act will lead to fairly vital modifications to the TTDSG, similar because the Draft Invoice. Nevertheless, thus far the Draft Invoice has not taken into consideration the amendments beneath the German DSA Implementing Act which are to be anticipated, particularly the proposed substitute of the long-standing notion “Telemedia” (German: “Telemedien”) with the brand new time period “Digital Companies” (German: “Digitale Dienste”) inside the complete German authorized system. Accordingly, not less than some editorial modifications will have to be made to the Draft Invoice in the course of the upcoming legislative course of.
Outlook
The Draft Invoice is presently at an early stage of the legislative course of. Stakeholders might take the chance to current their feedback on the Draft Invoice and/or determine objects which will require additional clarification.
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