The German government plans to issue an executive order this year that would force telecoms and ISPs to install and pay for surveillance devices in their infrastructure.
The order would cover all telecommunication, including corporate networks and businesses that allow employees to make private phone calls or send private e-mails.
It is the second government effort in less than three years to expand electronic snooping. The Helmut Kohl administration proposed such an order before the 1998 national elections but had to pull back in the face of determined industry and business resistance to the high costs involved.
Kohl lost the election, but the Socialist-Green cabinet that replaced him has submitted a revised version that “would give the government access to private Internet activities,” said Ulrich Wuermeling, a Frankfurt lawyer who advises DDV, the German DMA, on data protection issues.
Costs for installing the listening devices in the telecom structure could be prohibitive, Wuermeling noted. Larger companies could be forced to pay 3 million to 4 million deutsche marks ($1.4 million to $1.8 million), while smaller firms could pay DM 400,000 ($182,000).
The order would not cover commercial Web sites such as Amazon.com or BarnesandNoble.com, but AOL Germany, CompuServe and T-Online, Europe's largest ISP, could be covered by the order, Wuermeling said.
The move also could hurt U.S. manufacturers of telecom equipment, which might be forced to include costly surveillance items within the products they sell in Germany, a major foreign market for many of them.
German manufacturers would profit from having much of the needed equipment already included in their specifications, since Deutsche Telekom, the former government monopoly, required it under a 1996 telecommunications act.
While the new draft does not cover as many businesses and institutions as the 1998 version — which included hospitals, hotels and housing projects — the language regarding who would be covered is not clear.
The Association of the German Internet Economy has protested the new order, arguing it would make industry an involuntary “deputy sheriff” for the government.
The German cabinet has scheduled a meeting next month to discuss the draft and the opposition to it. Wuermeling believes the order will be issued. It does not need approval by the lawmaking lower house of Parliament.
Police, security agencies and the German office for constitutional protection — an FBI-style organization — have long argued they need access to electronic communications to fight crime.
“In theory, the government should pay for these costs,” Wuermeling said. “But it has managed to burden business with them and will get a luxurious infrastructure for surveillance purposes.”
He noted, however, that the technology is one thing while its actual use is quite another. German police may not tap into anybody's private communication without a court order.
“What is at stake here is the technology that allows surveillance,” Wuermeling said. “That doesn't mean everybody will be watched, but it does mean that various police organizations are likely to make greater use of what's available.
“True, they need permission, but that's not hard to get,” he said. “These are paper decisions police can get from courts by filling in a form.”
After the government reviews the draft in April, he added, some changes will be made, possibly narrowing the number of providers that must comply.
“There will be exceptions and transition regulations so that business does not face an avalanche of new costs,” Wuermeling said.