Privacy and Freedom of Information
1.1.1 Universal access after e-government law of the Federal
Beginning August 2013 joined the E-Government Act of the Federation in force, 9 which established a staged entry into force of certain rules. Since July 1, 201410, each authority is committed to providing citizens an access for the transmission of electronic documents, including those which are provided with a qualified electronic signature obliged to eröffnen.11 are not only federal, but also 12 authorities of Berlin and the other the supervision of the country below legal persons governed by public law when they ausführen.13 federal law
The Senate of the Interior and Sport had this in June a Rundschreiben14 to all public authorities of Land Berlin shipped and features explained in the result: Since all Berliner authorities would also execute federal law, they were invariably obliged to provide a route for the transmission of electronic documents , A limitation to individual departments is not admissible. Also there is no provision to limit the general electronic access opening only to matters under federal law. Further, each authority had to declare a central mailbox as electronic access opening; separate mailboxes were exceptionally permissible only if could be expected with a particularly high incidence in individual departments.
However, data controller within the meaning of the Berlin Data Protection Act means any authority or public body, can be processed or processed by others for themselves the data; perceives these different legal tasks, that OU is considered data controller, the .15 assigned the task Therefore all organizational units are in this sense - such as the DPO, the social security office or the health department - each as a separate data processing sites.
The acknowledgment of the emails sent to one of these organizational units by a central post office would therefore - like the opening of "confidential / closed" featured Briefpost16 - inadmissible. Rather, such e-mails may only be on the specific organizational unit itself - for example through their own post office - decrypted, checked for a valid signature, be noted and forwarded. In order to avoid an acknowledgment by a central mailroom sure it is therefore imperative that all organizational units each have their own mailboxes, because only such a - even accidental - unauthorized access can be safely ruled out.
Therefore, the Joint Rules of Procedure of the Berlin administration is too broad in its current form. It shows that while in principle to receive the general referred to the Authority electronic mail for each organizational unit set up its own electronic mailbox. Nevertheless, an exception is expressly provided for, according to which, for convenience, an electronic mailbox be set up only for the central mail distribution office but .17 expediency or cost considerations must not lead to a lowering of the level of data protection. In particular, the additional expenditure of decentralized electronic mailroom is negligible anyway, because now are all authorities and therefore also all organizational units have sufficient computer equipment.
The creation of decentralized mailboxes also does not preclude that the citizens lack knowledge of the authorities organization often do not know which body is responsible for the cause in an authority. So although appropriate emails are often not sent to the competent organizational unit in an individual case, but to the central mailbox of the Authority. Nevertheless, the choice of the citizens must be preserved to contact them directly to the well-known organizational unit, without having to dial the detour via the central mailbox.
We divided the Senate with the fact that the use of only one central electronic mailbox would be inadmissible and it is rather imperative that all organizational units within the meaning of the Berlin Data Protection Act each have their own electronic mailboxes. The Senate Department told us to adapt the newsletter and to work towards a change in the Joint Rules of Procedure of the Berlin Verwaltung18.
1.1.2 Centralized Service account Berlin
With the service account Berlin citizens a personalized access to many e-government services to be offered. In order for a secure identification for online applications of the Berlin administration is provided by use of the eID function of the new ID card. With the service account Berlin both the functionality of a permanent and a temporary Bürgerkontos19 now is to be offered.
Use should also be possible not only for individuals, but also for legal persons (z. B. Company). For legal entities, however, there is the problem that they do not have an identity card with eID function, but must be used for this purpose of identity card of a natural person. We have pointed out in this connection to the issue of voluntariness of consent in the dependent relationship between employers and employees and to the extent a strict separation between private service account and corporate account service recommended.
Since the E-Government Act of Berlin has not yet been introduced in Parliament, is presently lacking, however, on a legal basis for the operation of the service account.
1.2 Instant messaging services in care services
Due to a command we tested a Nursing who had asked its employees to communicate via WhatsApp together.
Employees of nursing services a lot. In addition to routine activities they have often struggled with unexpected situations in which it is helpful to inform colleagues or ask for additional information about the client, with whom they have to do. Instead of DOOGEE X5 phone and SMS for this purpose instant messaging services offer, which allow a message without great cost to reach a group of people.
They may, however, the use of these services is only if no one outside the nursing staff learns by communicating something about the client. For the employees of nursing services like doctors apply the duty to remain silent about what they know about the clients or patients. In addition, an employer may not order the use of methods in which information about its employees be disclosed to third parties, as far as mandatory for the activities and conduct of the employment relationship is not required.
Therefore, a nursing service in the constellation described may only use messaging services that provide end-to-end encryption. An increasing number of services does not offer this feature, but often for the transmission of a message to a plurality of receivers. Encryption must be reliable and effective in the long term. The employer must ensure that messages go only to recipients that it can assign its operation safely. Some messaging services offer such a verification function, z. B. on the reciprocal scanning of QRCodes from Elephone Trunk smartphone to smartphone.
Finally, part of a secure transmission and the safety of the equipment used. From home, many smartphones are not suitable for industrial use. However, it is software available that makes it possible to manage the devices uniform (the so-called. Mobile device management), certain special risks to disable related functions and store the transmitted data in a secure container. Is a prerequisite for an effective application in all this that the innos D6000 smartphones are the employer and it retains the necessary power to dispose of them.
If communication is itself secured, remain the metadata: the operator of the messaging service is known, from which device to do with what other devices when communicating. This is particularly problematic if the provider - is located outside the European Union and does not adhere to European telecommunications law - as in the case of WhatsApp.
Reduced sufficiently, this risk is when the smartphone will not be registered in the name of or the respective employees, neither by network vendors in the software manufacturers such as Google or Apple nor with the messaging service itself, and the equipment will be used exclusively business. This ensures that their operational use therewith can be but indirectly linked with the name of the employee and not with others, and many private use.
Preferable, however, it is in any case, turn on a provider who considers himself in verifiable manner on European data protection and telecommunications law.
1.3 Use of Yahoo e-mail addresses
Eight areas of green space office of district office Charlottenburg-Wilmersdorf of Berlin use for electronic communications free email addresses of the US company Yahoo. These addresses are used for digital communication with the citizens of content, but also internal matters such. As sick leave via this medium. The e-mail addresses posted on the website of the Office for "berlin.de".
This state of affairs appears problematic at first glance. Many people use such services. Why should this office can not?
Unlike private agencies act in the public order and are subject to stricter rules. The use of US e-mail accounts, which includes the e-mail accounts include Yahoo, leading to a transfer of personal data to a location outside the European Union. This requires according to § 6 para. 1 a BlnDSG
Legal basis, even if they take place within the framework of the order data processing. Such legal basis is not evident here. Rather, the Berlin Data Protection Act generally assumes that a commissioned data processing takes place only within the European Union. 21 Therefore, it can be assumed that it is not a lawful disclosure of information in this case.
In addition, the unencrypted transmission of personal data through the medium of e-mail constitutes a breach of confidentiality, of § 5 para. 2 no. 1 BlnDSG violating and possibly punishable even as a breach of official secrecy (§ 203 para. 2 of the Criminal Code). The data controllers are required to take measures that are appropriate depending on the nature of the personal data to be protected to ensure that this data can be read in the electronic transmission without authorization, copied, modified or removed. Such a measure is in particular the use of the prior art encryption method. The Federal Office for Information Security recommends encryption to ensure confidentiality, integrity and authenticity of e-mails that do not contain obvious data.
1.4 use of signature pads in the civil offices
We have received complaints from citizens who complain about the increased use of signature pads in the public offices. In particular, it is about the unclear use of signatures as well as their storage and data transfers possible. A signature pad is a device with which a handwritten signature is captured electronically. It should help to avoid media breaks between electronic and papery documents.
Signature pads are used in public offices since November at the request positions to passports and identity cards. The signatures are stored in the ID card register and in the specialized procedure Pass Register Population Administration. A recording of biometric features in the creation of the lettering, such. As the darkness, does not take place. Encrypted transmission of signatures takes place at Bundesdruckerei production of identity cards and passports.
On the signature collection via signature pads can be dispensed with in any of the cases mentioned during the application and delivery process. In the pass Verwaltungsvorschrift (PassVwV) stipulates that a passport application in the space provided on the checklist point (signature field) or an electronic signature pad on by the person applying must be signed. The PassVwV are incidentally also the framework for the passport process. Personal data are in principle been obtained from the with his knowledge to erheben.22 If personal data from the data subject with his knowledge, so he must be informed in an appropriate manner about the purpose of data collection. The voluntary nature of the use of signature pads in the citizens of Berlin offices is therefore to give the person concerned appropriately. This is presently not the case. We have called on the citizens of Berlin offices to ensure that the persons concerned declared the possibility of waiving the submission of signatures on signature pads expressly and z. B. is made clear through figurehead. The signatures are then conventionally to afford (on paper).
1.5 Control of the borough security concepts - Progress Report
2013, we have begun an inspection of the official security concepts in the district offices.
Until end of November 2014. sent to us by the twelve district offices as seven to date and validated IT security concepts, a district office has handed over IT security concepts for two sites in partial deliveries. The quality of the concepts vary greatly. Examples of these are called incomplete or missing networks, missing modeling or lack of basic security checks. Together with some unsystematic representations this results that can not be closed on the state of information security in most concepts. On a positive note, that in some of the concepts the additional protection levels of data protection authenticity, audit ability and transparency were partially taken into account in the assessment of protection requirements, which, however, is the exception.
When creating the future should be noted that authorities specific IT security concepts form the basis of specific procedures ITSicherheitskonzepte. It follows that in the two interfaces must be clearly presented to each other with the resulting dependencies. The procedural and authority-specific IT security concepts must be coordinated with each other.
Due to the sometimes unsatisfactory state of the concepts we will publish a handout, to assist the authorities in the creation of well-structured and clear IT security concepts.
To improve the quality of concepts and their implementation, we strongly support the development of the official IT Security Officer in the context of training for IT security officer in accordance with the examination regulations of the Federal Academy of Public Administration.
1.6 The Berlin Open Data Portal - progress or standstill?
As part of the e-government project "Service City Berlin" has the State of Berlin in September 2011 became the first German state its own Open Data portal as pilot and test project gestartet.23 aim of the portal is, through free access to records of public management to achieve greater transparency for the public and beyond to stimulate the possible further use of data by civil society, private sector, education and research institutions, the media and other third parties. Examples of the continued use of "open data" are in the form of new applications for example. The nursery Suche24 or the Internet application "citizen builds city", 25 which is to make it easier for citizens to take part in construction projects and planning approval process.
According to the published in 2012. Berlin Open Data Strategy, the Open Data portal of Hauptstadt26 was expanded gradually and in June 2013 with a new design to control mode überführt.27 in 2013 large parts since October, as a further step towards the strengthening of the portal official geodata provided free of charge, their respect until then possible only upon payment war.28 Aktuell29 available on the website 895 records from 22 different categories ready to for information retrieval and further processing (eg. as for the development of applications) from the public , enterprises, research institutions and other third parties can be used free of charge.
In the long term, the mirroring of information is planned from the Berlin data offering in other portals in Germany and Europe. This is within the next two to four years erfolgen.30 So are already much of the data from the Berlin Portal also in the nationwide offer GovData.de and find the portal offenedaten.de.
However, so far there is no legal obligation for public bodies to publish data and adjust the Open Data portal of the State of Berlin. We have therefore as early as 2013 submitted a proposal for a legislative amendment, which receives corresponding disclosure requirements in the IFG or the E-Government Act of Berlin.
Both content and technology, the expansion of the Berlin Open Data-offer by the Open Data Working Group was accompanied. In the working group were members of various Berlin authorities, represented in particular in the fields of spatial data, transport, the environment, consumer protection, health and social data and the Statistical Office Berlin-Brandenburg. The Senate Chancellery and the IT Service Center Berlin (ITDZ) were involved in designing the technical environment. In order to safeguard the interests of data protection, also a representative of the Berlin Commissioner for Data Protection and Freedom of Information in the AG has been consistently active. In February 2014, the project group has the final report fertiggestellt.32 remains the further development of the Open Data issues in the state of Berlin to be seen.
2.1 Consequences of the ongoing NSA scandal?
The revelations of former intelligence employee Edward Snowden in Summer 2013 have shown how threatening the privacy and in particular the right to freedom, unobserved communication by the intemperate surveillance practices and the total surveillance claim the American National Security Agency (NSA), as well as other intelligence is.
This has also become clear once again how vulnerable electronic communications on the Internet - it is the retrieval of information from Web pages or in the exchange of e-mails - runs so far. In this circumstance, the Data Protection Authorities already point in years. However, it was largely unknown before the "Summer of Snowden" in 2013, in which enormous proportions and with what financial Aufwand34 security authorities on content and traffic data on the use of telecommunications and Internet services now access.
The now available information in addition also fear that to protect itself measures (z. B. encryption and digital certificates), which hitherto assumed, particularly important applications, such as online banking, may be compromised. So it is feared that US security agencies of applicable national regulations and American digital certificate provider compel issue fake certificates.
The US homeland security scare not even back before attempting to install the underlying at the technical standardization weaknesses in cryptographic methods based components. In this way the level of protection should be lowered so that the secret decryption of the encrypted information by this method is possible.
Moreover, it has become clear that the intelligence is not documented on an apparently substantial supply vulnerabilities for the operating systems of different devices feature world, this supplement regularly by staff and used as needed. Meanwhile, it became known that the Federal Intelligence Service buys software vulnerabilities and the uncertainty of the Internet communications still increased in this way.
The run in the context of the debate on the targeted spying revelations of the DOOGEE X5 mobile phone of the Chancellor has again thrown a spotlight on the poor level of security of mobile networks.
Overall, one must assume that there is not a safe, unobserved communication without the use of special safeguards currently. Politics and business are called upon to take the necessary measures to ensure that protection of privacy in the electronic communications sector is possible. Where this can not be achieved by appropriate changes in the infrastructure, the person concerned must be made instruments for self-protection.
The Conference of Data Protection Commissioners of the Federation and the countries has pointed out in a resolution on the measures necessary to ensure human rights in the electronic communications sector. It urges the Conference the examination and implementation of twelve individual measures. In addition to the application include secure encryption method in the transportation and storage of data and the provision of an easy-to-use encryption infrastructure for everyone and the encryption of connections between organizations involved in the transmission network nodes to protect the metadata of communication in combination with the use of end- to-end encryption to protect content data.
To safeguard the confidentiality of the retrieval of information from Internet offers all Internet services, both public and non-public bodies must offer the possibility of encrypted data to retrieve (using Transport Layer Security - TLS). Only certificates should be used, issued by trusted exhibitors.
The Conference also calls for the development of innovative arrangements for the protection of traffic data, z. B. of methods for traceless or at least metadata poor email communication as well as the expansion and promotion of offers for anonymous communication.
Furthermore, the Conference calls for the testing and implementation of services for communication via controlled routes as short as possible and geographically local routes can the possibility of foreign intelligence services in particular for capturing communications mindern.37 These concepts, however, should not be confused with measures for control of the Internet or Try to foreclose parts thereof. This call for the Data Protection Officer of the Federal and State Governments not exactly.
Finally, the conference is also committed to the sustainable improvement of confidentiality in mobile communications. These include the use of effective encryption methods and the introduction of an authentication of base stations towards mobile devices. In order to be hampered by the use of IMSI catchers inter alia eavesdropping of mobile communication. Such devices are now not only for
Security agencies, but practically available to anyone at a low cost. 38 The knowledge of location data should be limited to the operators of the networks, in which each device should log, and the operator of the "home network" of the person concerned. Currently, localization of mobile devices is possible for each global network operators, regardless of whether a mobile device is logged in its network or not.
Other receivables relate to the limitation of the cloud Computings39 personal data to trusted providers of certified information security, the promotion of trustworthiness of information technology systems through certification, the awareness of users and users of modern technology as well as the adequate financing of information security measures. The working group "Technical and organizational data protection issues" of the Data Protection Conference has formulated a list of requirements which specifies the above-mentioned measures.
While some providers of telecommunication services have made commendable steps to improve data security and the protection of privacy in the electronic communications sector in the meantime. Thus the German Telekom AG has reviewed its mobile network so converted that under its encryption between mobile station and base station to a process for application comes in GSM networks, which are decrypted in contrast to the versions previously used according to the present knowledge not by anyone can. In parallel, some vendors of smart phones (even personal) data improves the protection of data stored on the devices by default use of encryption methods.
Some providers of e-mail services have agreed an encrypted transmission of messages of their clients between the servers of the companies involved. Also z. B. for short message services are increasingly offered apps that allow an effective encryption of transmitted message content. While none of these measures provides complete protection due to the many possible attack vectors. Combined they can but at least complicate privacy violations compared to the previous situation.
However, these initiatives of operators of communications networks and services are not enough by far. In order to implement the above demands, it is especially necessary that the federal government makes the necessary changes if necessary to enforce them and clarifications to the existing legal framework. Here little has happened so far. Whether the attempt of the Federal Ministry of the Interior to be successful, to require when awarding ITDienstleistungsaufträgen by the contractors Eigenerklärungen intended to prevent the flow of information to foreign security agencies ("No-Spy-Decree") is doubtful, especially as the monitoring of compliance with such explanations would be difficult. At least carries the "No-spyware adoption" to the fact that the issue of access of foreign security agencies for the first time also addressed in public procurement.
Overall, the federal government and the legislature to stay but called to assume their responsibility for ensuring human rights in the electronic communications sector more, than is currently the case. In particular, the control of the intelligence services in Germany must be made more effective.
2.2 Developments in cloud computing - the example of Office 365
Cloud Computing42 has in recent years steadily zugenommen.43 More and more companies want to outsource data of their customers or employees in a cloud. The view to reduce IT costs as well as always and at any time to access data, these products makes it attractive for both large and medium-sized enterprises as well as start ups. Increasingly, therefore, take our advice companies on the admissibility of Office 365, a product of the US company Microsoft, to complete. However, schools or recreational facilities contact us, because they were offered free use of Office 365, and you will see a big advantage in the use. To provide guidance for the use of cloud services in general, the working groups technology and media as well as the Working Group on International Traffic of the Conference of Data Protection Commissioners of the Federation and the countries have for this the guidance cloud computing fundamentally revised. In the collection, processing and use of personal data in the context of cloud services all data protection regulations are observed. Special requirements apply especially when the data are transferred to countries outside the European Economic Area. The choice of server location plays a significant role, since this provides, inter alia, the level of data protection to be adopted and be derived from legal requirements. Moreover, is important if the product Office 365 employed by non-public or public bodies, we
Terms of Office 365 by companies
Insofar as the server location is in the US, data transmission must first be authorized by the Federal Data Protection Act. The company has for the transfer of data to Microsoft, such as part of the E-mail application, demonstrate a legal basis or the consent of the customer or employees, as the privileging of order data processing in recipients does not apply in third countries.
Consent is only valid if it is voluntary erfolgt.46 particular in employment relationships rarely accept such voluntary basis of assumed imbalance between workers and companies. However, the transfer of customer data to the cloud on the basis of consent appears impractical for companies. For all new customers and customers these should be included from the outset transparent in the contract. In Altkundinnen and customers, the problem arises that hardly any will agree and then, consequently, the customer data had to be separated.
The transfer may also be permitted to the extent it is necessary to protect the legitimate interests that the data is transmitted in the cloud of Microsoft and legitimate interests of the person concerned not überwiegen.47 Accordingly must the legitimate economic interests of the data transmitter to the interests of those affected on a adequate level of data protection for their personal data to be weighed.
Unless sensitive Daten48 should be given to the cloud, the balance of interests will end depending on the individual case in favor or against the data transmitter. For this assessment criteria need to be developed, such as. For example, the imposition of a penalty that would have to pay for legal violations of cloud providers, or the establishment of the greatest possible transparency for those affected.
Problematic use of Office 365 but when sensitive data is transmitted. It can never be ruled out that employees send their sick note via email or customers pass sensitive information to the company. Then a balancing of interests will lead to a transfer of data to the cloud is not allowed. In addition, however, that a data transfer to a third country such as the USA in the data receiver an adequate level of data protection prevail muss.49 The company as a customer of Microsoft possibility a so-called. EU standard contract agree that the European Commission as providing adequate safeguards in terms of protection of those concerned are recognized.
Microsoft has let examine its standard contract by the Art. 29 Data Protection Working Party. This has found that the Treaty text to EU standard contractual clauses for the order data processing entsprechen.50 However presented the Art. 29 Working Party also clear that it remains the relevant supervisory authority reserved to check the technical and organizational measures. A final technical examination of the product Office 365 is still pending, so that at present no statement on the technical and organizational security can be taken. In Working Group Technology of Data Protection Authorities, the Bavarian State Office for Data Protection Inspectorate has offered to appoint an external expert to audit the product.
Regardless of the location of the server but the problem arises of the reliability of Microsoft as a contractor of the cloud service. According to German data protection law, the contractor is solely on the customer's instructions as Auftraggeber.51 The American security laws may force American companies such as Microsoft, however, to transmit the data to US authorities and to undertake this, the customer does not mitzuteilen.52 the forced surrender It is therefore doubtful whether one can regard as suitable US contractor ever.
Insofar as the server location, as Microsoft appeals a part of European clients, located in Dublin or Amsterdam, a transmission first appears less problematic. However, we were explained in an interview with Microsoft, that there may be for the purpose of maintenance to queries from third countries (such as India, USA). In addition, a US court ruled in April that Microsoft the contents of e-mail accounts on their own must then hand over to US authorities, who are those outside the United States (eg. As in Europe) are stored. Microsoft has appealed against that judgment. A final decision on this is still pending.
Terms of Office 365 by public bodies
In addition to the Berlin-based company, we also get requests from public bodies. In particular, the question of the permitted use for schools and other educational institutions is important because Microsoft provides them the product free of charge.
The disclosure of data to Microsoft as a contractor requires even in public places as a data transmitter is a justificatory provision or consent when the server location in the US befindet.54 Here the same practical problems with regard to consent ask how in the use of non-public Set so that only a legal basis in the Berlin Data Protection Act came into consideration. However, such missing.
It is noteworthy that after the Berlin Data Protection Act no data transfer to third countries is provided in the context of order processing. During a maintenance outside the European Union is being considered in Berlin Data Protection Act, 55 lacks an adequate notice of the order data processing. 56 From this it is deduced that a disclosure to bodies in third countries as part of order data processing for public bodies in Berlin is not permitted. Because of the role model of public sites for a privacy-compliant usage of services, this is also to be welcomed.
Unless a contractual assurance exists that the data store only in Ireland, although it needs to transfer data no justification provisions within the meaning of the Berlin Data Protection Act. However, do not rule out Microsoft, that there is access from the United States for maintenance purposes. In addition, there is the general problem of the suitability of Microsoft as a contractor here. It has not yet ruled out that US companies are obliged to return the contents of the cloud by American authorities.
2.3 Joint counterterrorism centers
After 11 September 2001 different inter-agency cooperation platforms were installed, pursue the objective of ensuring closer cooperation between the security authorities in various fields. The Joint Counter-Terrorism Centre (GTAZ) in Berlin-Treptow deals content with the fight against Islamist terrorism, the shared Extremism and Counter-Terrorism Centre (GETZ) in Cologne with the fields right and left extremism / -terrorismus, foreigners Extremism / -terrorismus and espionage including proliferation of weapons-grade material. In both centers all state OPCs and -kriminalämter, the BKA, the Federal Office for the Protection of the Constitution, the Federal Intelligence Service, the Military Counterintelligence Service, the Federal Police, the Federal Attorney General, the Customs Criminal Office and the Federal Office for Migration and Refugees are represented. In addition GETZ the Federal Office of Economics and Export Control is still involved. At the meetings, representatives of Europol are invited STARTING and thematically.
Both in GTAZ and in GETZ there is evaluation and analysis centers of intelligence agencies (NIAS) and the police authorities (PIAS), where exchange, the relevant authorities of the federal and state regularly each within their network. Moreover, the authorities of police and constitutional protection of federal and state governments as well as from the other authorities involved composite across in various working groups to meetings come together to learn about issues.
The establishment of GTAZ and GETZ is not based on legal organization rules or regulatory arrangements. The Conference of Interior Ministers and the Interior Ministry were in the establishment of joint centers on the assumption that due to the lack of visibility and legal status of these institutions, no new bodies have been set. The joint centers should be based on their exchange of information solely on the existing data transmission requirements of the relevant specific laws of the acting authorities. On the establishment of an independent legal basis for the establishment of these platforms has been omitted.
Therefore, the still ongoing review of data collection and -übermittlungsvorgängen the Berlin constitution protection authority and the police chief in GTAZ and GETZ designed for us already not easy because the protocols partially have no standardized form. In several cases, was not apparent to us which officials have participated in the meetings. Data collection and -übermittlungen by Berlin authorities and their legitimacy can not or hardly be understood that way. In some cases, it was unclear when the recorded facts, whether and which personal data were actually exchanged in the working group meetings between the players, although the facts recorded descriptions suggesting a personal information exchange.
Depending on which group is affected in GTAZ or GETZ, the protocols to the Federal Office for the Protection of the Constitution, the respective state constitution protection agencies, the State Criminal Police Offices, the Federal Intelligence Service, the Federal Attorney General, the Federal Police, the Customs Criminal Office, the Military Counterintelligence Service, the Federal Office for Migration and Refugees are and optionally sent to Europol. Partial remains questionable whether representatives of those authorities who participated in the meetings and each logged a forward all information in the logs is necessary.
Anyway, with the Berlin authorities, the logs for the purposes of data protection control will be stored up to two years, regardless of whether they are actually needed for the concrete work of the Authority. Although the data is kept in the off state and are subject to a ban on misappropriation, this procedure is to assess critically due to the potential for abuse and the informational Trennungsgebotes57.
Our audit whether the information exchange of the Berlin authorities with other intelligence or police authorities of the federal and state governments in GTAZ and GETZ exceeds the limits of the informational separation principle, continues.
While the police and security authorities the prevention, prevention and prosecution of offenses and the defense of other threats to public safety and order is the responsibility, regularly have to present evidence of a crime or a suspicion of danger for those who observe and report intelligence about fundamental hazards that can destabilize the polity as a whole. On this essential difference are the different modes of action of these authorities
- Namely open with the police authorities and concealed in the intelligence services
- And the design of the data collection and processing powers in particular
- Namely narrowly and precisely because of the associated sanctions with the police authorities or without sharply detailed design of the means to be employed, or areas of activity in the intelligence services
- Zurückzuführen.58 an exchange of information between intelligence services and police, therefore, is only permitted with outstanding public interests.
In GTAZ and GETZ reporting on the matters raised issues often takes place without a prior specific request of the participating authorities. In order for the other authorities can to a certain extent "offered" personal data to pick out when they need to do the job. For such a "Hawking" the data protection rules have been conceived but not in the subject-specific laws. There are serious constitutional doubts as to whether such an approach without sufficiently certain legal regulation is lawful, since it leads to a significant intensification of exchanges of information with simultaneous erosion of the separation principle.
The current data transfer rules also provide through its formulation
not in any case ensure that a data exchange only with outstanding
Public interests between police and intelligence services takes place. Such a limitation is given by the jurisprudence of the Constitutional Court from the informational separation principle. In contrast, for example, can exist on a broad interpretation of the Trade Laws also a reporting obligation when only offenses of general crime (z. B. Theft or damage of property) are affected, even if they aufweisen.59 only a very distant relationship with the state protection offenses Limiting the transmission of Data only in the presence of serious crimes is not provided by the text of the law. To what extent have raised submitted against this background, the Berlin authorities such personal data in constitutionally problematic way or in GTAZ or GETZ, is based on the available protocols in the context of our assessment of cases clear up even closer.
Regardless, we have according to the specifications of the Federal Constitutional Court on a regular basis to review the anti-terror file.
2.4 Protection of mandate secrecy in investigations against MPs
Lawyers and notaries are as professional secret support to secrecy verpflichtet.60 The secrecy is to protect the privacy of the clients or from any other interested parties, and includes all the facts that have been entrusted to the debtor in performing their duties or familiar in other ways. Additional questions were raised when it is determined to MPs who are also carriers of professional secrets.
In June, a search of his law office was due to a court order in a criminal investigation against the former Senator for Justice and Consumer Protection, and today's Deputies Michael Brown, who is also working as a lawyer and notary, instead. Here, the investigating authorities confiscated mandate documents. About the investigation has been widely reported in the media. Mr. Brown turned to the Data Protection Act review the matter to us.
Primarily, the question on the scope and limits of the duty of confidentiality of a professional secret carrier who wishes to publicly put to the accusations made against him to fight back.
Notwithstanding the high status of the confidentiality of secrecy are in some cases against overweight interests that permit disclosure of secrets. Such disclosure rights are not specifically regulated by law, but can be derived from the idea of justifying Notstands61 and the right to protect our own legitimate Interessen62 in exceptional cases and by courts for certain groups of cases, such as for judicial enforcement of fee claims, for defense against claims for compensation and been to their own defense in criminal proceedings berufsund recognized.
In line with this case-law, a lawyer or notary to be authorized in unjustified public attacks against him in exceptional cases for disclosure of mandate secrets also to the general public, when the threat of disadvantages for him weigh very heavy, he has no other options to overcome these drawbacks and the mandate secrets are of minor importance in comparison with this.
Notaries have moreover in case of doubt about the scope of the confidentiality obligation, the opportunity to bring about a decision by the supervisory authority which may exempt from any criminal, civil service and legal consequences.
Another question concerned the practical implementation of searches and seizures in law firms or in professional secrecy.
The Head Attorney General and the Chief of Police told us that there is no separate financial statement for this purpose. The Head Attorney General held so far, the legal Regelungen64 and related Ausführungsvorschriften65 for sufficiently concrete. The police chief said it is currently located is a general statement about the business search, seizure and securing as well as the treatment of evidence objects in revision. It will made to the relevant legal provisions, including on the criminal proceedings Beschlagnahmeverbot66.
In addition, it is recommended to take concrete regulations on technical and organizational measures which must be observed when carrying out a search and / or seizure and thereby recognize the specific features of the status of official or professional secrecy carriers bill. Conceivable about special sealer or documentation requirements.
As far as a search operation in the premises of an office community of lawyers takes place, is also particularly important to ensure that no documents of secret carriers are confiscated, against which the investigative measure is not addressed. In that regard, the members of such office space even for the protection of the individual mandate ratios in the duty each lawyer based kept separate files with mandate details in locked cabinets to which only authorized access, and to keep separate diaries. The same applies to medical Praxisgemeinschaften.67
In connection with the implementation of an investigation against a deputy who is professional secrecy carriers simultaneously, also the question of the scope of data transmission powers of the investigating authorities to provide the House of Representatives.
Because of the Rules of Procedure of the Chamber of Deputies (GO Abghs) laid down the general approval of the Chamber of Deputies to carry out investigation for crimes against one of its members - apart from the not applicable here Ausnahmen68 - the prosecutor's office initially only obliged prior to the initiation of the investigation to the President of the Chamber of Deputies immediate notification is made to machen.69 Any further information on the subject of the investigation the prosecutor's office must therefore at this time not yet communicate unasked. To this end, they would only be entitled to request the President of the Chamber of Deputies, but only to the extent that allows the president to examine whether a derogation is met, which is not subject to the general approval of the Chamber of Deputies. Since the general approval of the Chamber of Deputies to carry out investigation for crimes against MPs in principle excludes the enforcement of an arranged search or seizure, 70 is the public prosecutor, however, prior to the execution of the search warrant required to obtain an authorization from the Chamber of Deputies and the right in this context, more Information to convey investigation to the President of the Chamber of Deputies. Such approval has not eingeholt.71 The Senator of Justice and Consumer Protection issued the following statement in relation to the Chamber of Deputies that in the meantime operations in the prosecutor's office, educating prosecutors and corresponding working papers have been improved due to this incident, so that an oversight of immunity in a single question not repeat könne.72 We will verify the implementation of these new requirements.
The application for such a permit (and thus for waiver of immunity of deputies) is a statement of facts and a description of the legal situation to verbinden.73 The description of the alleged act should contain, which are seen in the legal elements of the offense, the facts specify the time and place of its commission; the penal provisions shall be designated, which come as injured into consideration.
The prosecutor must, however, transmit only information that is necessary for the House to decide on the request for waiver of immunity. For this, the prosecutor has to examine in particular an individual basis which personal information shall be communicated to Parliament for its evaluation of the matter. In cases of doubt, a restrictive approach when the data transmission is recommended, since the Parliament at any time has the possibility to request for its decision on the request for additional information from the prosecutor's office, as far as it will lead to the necessity for its decision.
In assessing the need for a disclosure of information should be also taken into account in cases such as this especially true that certain personal data have been collected and processed subject to lawyer-client relationship in the context of confidentiality and should therefore be treated very confidentially.
2.5 Online learning platforms
Our knowledge-based society is characterized by a progressive digitalization, differentiation and networking of information and communication structures. The safe handling of electronic media has become one of the central cultural techniques. Against this background, the development of skills acquired, select medial mediated information to understand, use and communicate continuously in importance.
According to new findings take the widespread perception, children and young people would not zu74 solely through their growing up in a world of new technologies to society automatically competent users of digital media. The promotion of relevant key skills in children and adolescents is therefore increasingly seen as part of the school educational mission. Of the potential of identity and personal development, social and cultural participation and involvement of social life starting, the teaching of media literacy, including the privacy rights of users should be regarded as a key requirement in schools.
The results of current JIM study 2014 show that the school day is not yet meet these requirements. 75 During the 12- to 19-year-old students - by its own account - at home, on average, 51 minutes per day doing on the computer or on the Internet something for school, 76 provide two-thirds of the students that digital media and learning programs in the classroom ( z. B. for online research, the creation of texts, presentations) hardly or not at all used kommen.77
Therefore, Education, Cultural Affairs and Education administrations promote under the name "e-learning" or "eEducation" increasingly projects that deal with the introduction of "virtual classrooms". Here to use so-called. "Learning management system (LMS)". This should - facilitate learning anytime, anywhere, in different ways, alone or in communicative exchange, thereby redefining the role of students and teachers - using modern information and communication technologies.
In the LMS or "online learning platforms" is operated on servers complex software systems. They support the instructional and teaching operation, complement the classroom instruction and provide web-based learning opportunities and tools for communication, team work, problem solving and learning checks. To relieve the teaching activities can on the decks partly responsibilities of school administration -. Eg electronic grade book, absence management, timetable changes and substitution regulations - be done.
Teachers, students sign up with a personalized account on the online learning platform. Your usage is usually stored. Is being held for. Example, which user has accessed at what time on which side. As far as the learning platform is used for problem solving and learning control in the classroom, also performance of pupils are recognized. Sector-specific rules for the collection, storage and further processing of personal data does not exist. The general data protection regulations of the Berlin School Law and the Berlin Data Protection Act.
After that schools may only process the personal data of the students that are necessary to fulfill their assigned school-related tasks required sind.78 However, many online platforms register considerably more user data than for school performance of tasks. So z. B. is usually recorded, when, how often and at what times a student, or a student who worked on the online platform at certain tasks. These data must not be seen by the teachers. The procedures should be adjusted accordingly.
The Privacy legally responsible for the use of the online learning platform Stelle79 is the respective school. As a "Mistress of the data" it has to largely determine the nature, scope and use of the data processing. In this respect, on-line learning platforms differ positively from Internet communities like "Google+" or "Facebook", which are subject in any way the control of the school. The school has to determine which data for the use of the online learning platform requires mandatory and which data is collected only optional. When master data is usually required: Name and address of school data system of user accounts, Information about subcontracting roles and permissions, and an email address for sending notifications. For more information, the user can enter yourself in the user profile on a voluntary basis. The so-called. Log data that are stored on the server may be used only for monitoring the functioning and security of the systems and to elucidate an unlawful use of the learning platform. The same should be defined concretely in a binding order users. Pupils, students and their parents must be informed in an appropriate manner about the use of a learning platform. Insofar as the use of specific modules is carried out only with the consent, they are expressly indicate their voluntary nature and the existing right of withdrawal.
The use of online learning platforms is also only permitted under certain technical and organizational framework. Use of the online platform requires a password-protected access. For the user or user role differentiated concepts (eg. As administrator, course creator, teachers) have to be developed and set up. In accordance with the concept of roles are assigned differentiated access rights to the participants. There are binding specifications for logging of data access, data export, data deletion and the interfaces with or separation from other systems to meet. In particular, must remain on the other hand isolated on online learning platforms the eventual processing of school administration data (eg. As personal data of teachers) on the one hand, and data on teaching content.
2.6 Access to information in the supervision - a preliminary examination of its own motion
The pirate faction in the House of Representatives asked the Senate for some time as part of annual minor interpellations handling of the public authorities of the Land Berlin with IFG. In response to the Small Anfrage80 recently asked it was said that the accumulation of applications in the districts on information provided by the respective Building and Housing Inspectorate and the environmental and would go back Conservation Office. However, the number of questions in the districts of requests under the IFG ranged from 49 at the district office of Tempelhof Schöneberg over 521 at the District office Charlottenburg-Wilmersdorf to 2726 at the District Office Pankow. Given these different case numbers, the researchers assumed that the districts for file inspections at the construction and housing inspectorates and the environmental and conservation agencies apply different standards based.
We took the answer to the written question is therefore an opportunity to us to inquire at the district offices, in how many cases and on what relevant legal basis in 2013. Access to the file in the Bauaktenarchiv, the easement register and has been granted in the files of the environmental and nature conservation office. The responses of the district offices showed that we had set at the building control office at the right place:
Although several district offices sent reply, but answered our questions regarding the supervision offices content either not at all or only shared with mere numbers of cases, without naming the respective underlying legal basis.
Regarding the Bauaktenarchivs various legal bases have been mentioned to us. Thus, although some districts recognized that access to the file by parties not involved after the IFG and the inspection of files directed by operators regulated by the Administrative Procedure Act Berlin81. In addition, however, the Administrative Procedure Act of Bundes82 and building regulations Berlin83 were listed as the sole legal basis. It was overlooked that for the building inspection offices is not the Administrative Procedure Act of the Federation, but the Administrative Procedure Act of the State of Berlin is applicable, 84 and the building code Berlin does not contain any legal basis for inspections in construction documents.
With regard to the easement directory the answers were even more amazing. So we named only two districts that purpose alone relevant IFG.85 also been here several times referred to the Administrative Procedure Act of the Federal Building Code and the Berlin. Several districts also indicated that appropriate file inspections would not be counted or not at all were the subject of little request.
Since our fears were even exceeded, we decided to check the handling of files insights into construction documents as well as the public easement register on site.
This was the first examination of its own motion that we made after the Freedom of Information Act. To this end, we selected the District office Charlottenburg-Wilmersdorf, which had in its reply referred to the appropriate legal basis for inspections in the Bauaktenarchiv and the easement register and otherwise represented the legal position applicable. However, resulted in the on-site inspection that the district office had indeed accurately reproduced the legal situation in the response, but this was not used as a basis in the borough office.
First, we were presented by the two total existing operations to file inspections after IFG only one operation, since there was the further procedure in the opposition body. After this process obviously was initially unclear whether the file could not be granted in ongoing operations at all after the IFG, the applicant various appointments were made without this was to indicate a possible consequence fees. After access to this file for a fee of 10.02 € is based on the expression of electronic components and approval process set, the following has been established: The scope in terms of expenditure is to be set low, and with 40%, the difficulty average and also with 40 to be set% to put the economic benefits on average and with 10%, and the importance for the parties and the economic circumstances of the applicant in each case an average and to be set at 5%. Although the actual fee assessment contained an indication of the correct subheading, 86 exhausted itself in the ground, however, on the naming of the legal basis.
Out of the four submitted proposals to the file in and filing of information contained in the public easement register showed that in three cases, for a negative certificate a fee of 17 € after Baugebührenordnung87 and in a case for sending a copy of the easement sheet a charge of 29 € was imposed after the Baugebührenordnung88. In the submitted construction documents themselves not applied for or granted file inspections under the IFG, the UIG or the Administrative Procedure Act Berlin were recorded or documented. Finally, were in Bauaktenarchiv fees figurehead of two external copying service, in the example for the Reproduction A3 black and white fee of € 0.30 were reported for each photocopy.
As a result, we had to therefore hold that the use of the district office with access to information request regarding the construction documents and the easement register not largely corresponds to the current legal situation:
Legal basis for inspections in construction documents for the proceedings, the Administrative Procedure Act Berlin, Non Participating the IFG, which concerned shall be consulted beforehand in the latter case. Neither after the Administrative Procedure Act Berlin even after the IFG, it depends on a as well as any interest of the applicant in the file so that the file must never be denied because no legitimate interest of the applicant is evident. File insights of proceedings are free of charge, 89 for file inspections of non-participants are charges by the administration of fees Berlin to erheben.90 It should be noted that only the actually incurred administrative expenses should be based and the financial circumstances of the applicant must be taken into account at best for its benefit. 91 The level of fees must be understandable reasons. In addition, the fees for the Reproduction Only after the administration fee schedule set. 92 As far as this external copy service are turned on, the charges must not higher ausfallen.93 Furthermore, the public authority for the use of external service providers must complete copy corresponding order data processing contracts, satisfying the requirements of the Berlin Datenschutzgesetzes94.
We had the building authorities of the districts in May - pointed by a Rundschreiben95 to this legal situation - even before the audit in Charlottenburg-Wilmersdorf. However, the District office Charlottenburg-Wilmersdorf not consider this circular for practical because the consultation of interested parties, and any needed redactions prior access to the file by parties not involved requires too much effort and is staffed not afford.
Legal basis for access to the file in and filing of information contained in the public easement register has been since 2005 alone, the IFG, so the one hand, every person make an application kann96 (and not only authorized persons) and on the other hand, the fees incurred for this are to be charged only after the administrative fee schedule ( and not after the Baugebührenordnung) .97 On the one hand, therefore, allowed for the negative certificate that no easement is registered, no fees charged werden.98 Secondly, the fees only at the administration costs incurred and to the respective required copies o. Ä. to measure and may not therefore set a flat rate of 29 € per plot werden.99 therefore is by no means to be expected at attraction of appropriate legal basis by an increase in fees for easement information, but with a very significant reduction.
Finally, it is irrelevant whether the applicant based his request on a specific legal basis, since the public body anyway to examine all the relevant legal bases and for the applicant
- Both in terms of the scope and the possible fees episode
- Has selected the best deals, such as the toll-free access to documents in the environmental information on the spot after the UIG.
In no case the public authority may deny the applicability of the IFG, arguing that thereby arises an increased amount of time is no personnel to afford. On the one hand is part of the proper performance of tasks of public authority and the processing of access to information request under the IFG, the resulting administrative burden for this is offset by the fees to be charged. Secondly, the legitimate concerns of interested parties in the confidentiality of their personal data must not be undermined by the fact that they are not consulted or not pure expediency are involved.
3 justice and home affairs
3.1 ASOG amendment - constitutionally questionable
The Chamber of Deputies is currently discussing a bill amending the general safety and Ordnungsgesetzes.101,102 This should allow the event-driven automatic license plate manhunt by police and data transmission by the police to intelligence agencies to investigate or combat international terrorism and the violence related right-wing extremism.
In advance of the legislative process, we have taken with respect to the Senate Department for Justice and Consumer Protection on the ministerial draft position. Our recommendations, however, were largely ignored, which is why we have confirmed in the parliamentary debate.
First, it is necessary to evaluate the use of automatic number plate investigation concerning their suitability, necessity and impact, because it represents a substantial interference with the right to informational self-determination for its large spreading width, the dismay of many onlookers and the covert execution. As envisaged in the draft law annual reporting obligation of Senats103 can not replace such an evaluation. Although they used the parliamentary scrutiny of the action, however, is not a comprehensive scientific monitoring of the introduction of automatic number plate search and here in particular no independent verification of the actual suitability of the action for the intended purpose and their effects.
Not resolved yet is also the constitutional admissibility of automatic number plate search. Against such arrangements in the police laws of the Länder Baden-Württemberg, Bavaria and Hesse constitutional complaints have been brought before the Federal Constitutional Court, the result of which remains to be seen.
We also criticize the proposed scheme for data transmission between the Berlin police and the Nachrichtendiensten.104 Due to the informational Trennungsprinzips105 data may essentially not be replaced. Exceptionally comes to operational performance of tasks, an exchange in consideration when this serves outstanding public interests and sufficiently concrete and qualified intervention thresholds are made on the basis of standard clear legal regulations and the intervention thresholds for obtaining the data are not undermined.
After the planned procedure for data transmission between police and intelligence services is also not currently be ruled out that data transfers take place to contact those of a terrorism-related to the main character not wissen.107 The Federal Constitutional Court has pointed out in its decision on the counter-terrorism database law, however, that information about contact persons at all, only by may be interested in if they convey information about the force as terrorismusnah protagonist können.108 this respect, the proposed regulation is currently too broad and should be determined with reference to the requirements of the Federal Constitutional Court.
3.2 Amendment to the Federal Registration Act
In 2015, the state reporting laws are superseded by the Federal Registration Act (BMG), which was exposed in the legislative process significant data protection review, which took into account 109 in parts. Now saw the federal government needs further revision with the introduction of the new reporting law and laid before the planned entry into force of the Federal Registration Act a bill to its Novellierung110.
During a public hearing in the Committee on Internal Affairs of the German Bundestag of the Berlin Commissioner for Data Protection and Freedom of Information had the opportunity to comment on the bill. Another positive was provided for in the draft law extending the right to self-disclosure to the person concerned via automated reporting information by means of data carriers as well as improving data protection control option by the extent of the logging duty in all types of automated registration information.
However, the suggestion of the Bundesrat was to criticize, all personal data of members of public law religious societies and of their family members for a cross-check to a nationwide uniform date in the new § 42 mentioned BMG automates the religious societies to convey. This is justified by facilitating the launch of already in use in the state reporting technical standards in religious societies.
It contradicts the principles of data minimization and necessity, only to transmit from utilitarian considerations flat rate personal data that already exist in the data receiving unit. The Berlin commissioner has therefore advised to check whether a technical transfer of data already stored in the religious societies data can be carried out in the proposed new standards within the responsible body. The timeliness of the data members would not be affected due to the existing regular transmission powers.
By contrast, were the concerns of the Federal Council in terms of transmission of data of individuals who are employed by a religious community, to share the employer. Such a data transmission can occur to a significant deterioration of the interests of those concerned, because these may be liable to disciplinary consequences because of the notification of their employer over the leadership of a civil partnership, or a divorce or remarriage. This is true even if you as a tendency farms far right to ask questions in respect of candidates gives the religious societies or employees are subject to employment or labor law notification obligations within the Church. The reporting law it should be left to the parties concerned, if and when they send information about their marital status and their religious employer if appropriate, want to give up tax benefits in order to escape the risk of labor law sanctions.
The Bundestag took in adopting the amendment to the proposal of the Bundesrat BMG to a single reporting data synchronization, but at the same time certain that data from registration authorities in public law religious societies must not be sent to labor law purposes. The churches have pledged that they will not use the data for such purposes.
3.3 Citywide Event Database
In the spring, the Committee for Digital Management, Data Protection and Freedom of Information employs in the Chamber of Deputies according to media reports, the police file "Citywide Event Database (VDB)". In this context, we were asked to review the file management and information practices of the police against the person concerned. We then carried out a review of the file to the police.
In the VDB data is stored to events that required the police after their vote to fulfill their tasks. In addition to releases of any event the applicant to issue, type and location of an event the file contains among other things, police history reports that contain z. B. Information on the number of participants to events during the event and police regulations.
Currently, personal data will be stored for three years in the VDB. The duration is especially justified by the high practical relevance of the database for police assessment and preparation of events. Personal data may be stored, however, only as long as necessary for police work actually required ist.111 Conceivable present about much shorter time limits for the storage of personal data, which are relevant only once due to the issue of events. You may find certain events take place also so common that it is sufficient to know the behavior of each applicant and the participants in the last one or two years in order to evaluate the event history policed properly. One could also imagine a differentiation of the storage period by Declarant and subscriber data.
We have advised the police to carry out an evaluation of the frequency of use of the personal data stored in the VDB and thereafter to create a detailed extinguishing concept.
Another subject of the audit was the way of communication of information from the VDB to the affected applicants of events. The police limits the information currently in the rule on the submitted by the applicant itself of any personal data and justified this by saying that further information about the event and would not be stored on the person of the applicant. This is inadmissible.
The police must be obtained from an interested party on request, information on the data stored about his person without that are categorized according to the purpose of the storage or the origin of the data darf.112 is crucial that an actual relation between information and person besteht.113 All an event data stored in the VDB stand in a specific relationship with the applicant and are therefore disclose its factual circumstances. It does not matter whether the data is considered by the police from this point.
Only insofar as a consideration in individual cases reveals that the legitimate interests of the person concerned must resign by the public interest in maintaining the confidentiality or a predominant interest in confidentiality by third parties, there is no obligation to provide information from the VDB.
3.4 dormitory for asylum seekers: monitoring at every step?
Once we were made aware of asylum seekers on shortcomings in the data processing in a dorm Neukölln, we have carried out an examination on site.
We have found that the statements of the home residents are scanned by the security service of the home when leaving or entering the site. The costs arising from checking in and out movement of data and information, whether the resident or the resident on a given day at all or was not in the house will be saved. This information requires the private operator for settlement against the State of Berlin. Billing is per day and per inhabitant or inhabitants. At the time of the audit, however, was ten years understandable and visible through the home line, on what day and at what time which resident and residents who have left the dorm and when they are returned.
Such a comprehensive data capture and storage is not necessary and therefore inadmissible for the aforementioned accounting purposes. For the calculated to the day, it is acceptable if the motion data captured at first, but be checked to the same day, which residents are present and which are not. Only this circumstance the presence or absence on the day can then be saved as evidence of the services invoiced until the bill has been paid by the State of Berlin. The precise movement data must be erased, however daily.
In addition, pre- and surname, date, time and destination room number was by all visitors of the dormitory requested, saved and deleted only irregularly. The collection and storage of visitor data must be assessed within the permissible exercise of the operator is entitled to house law. Here, both the claim of asylum seekers to receive visitors, as well as trouble-free operation of the dormitory must be reconciled. The operator of the dormitory has a legitimate interest in knowing who is entering the home terrain and leaves again. It's knowing a comprehensible particular for security reasons, but also in financial terms need the operator how many External reside on the home terrain. To this end, the names of the visitors and the target room numbers may be requested. Once the visit is leaving the dormitory, the data must be deleted, however.
Moreover, the examination showed that there are a total of 33 video cameras in the corridors of the building and sporadically in the courtyard area on the grounds. Living rooms and common areas are not monitored. The in the past found in the dormitory property damage, assaults and thefts justify the CCTV in the corridors of the building and the courtyard on the premises. Because since the installation of video surveillance the incidents, however, are significantly decreased and a perpetual, permanent monitoring without specific purposes is not allowed, we have the operator advised to continue to monitor the situation in the detection areas of the cameras accurately and to document the incidents or to the police. If over a period of approximately one year no more incidents are detected, the original purpose monitoring would no longer be available and the cameras would have to be shut down.
We have given the operator to remedy any identified deficiencies in a timely manner. The implementation of these guidelines, we will check.
3.5 The police job in the BVG security control center
As part of a package of measures for more security in public transport (PT), the Senate, the Berlin Transport Authority (BVG) and the police agreed to establish a permanent police jobs in the security control center of the BVG. Since December 2011, this work will be occupied in three shifts with a police officer for 24 hours.
Meanwhile, an agreement between the SNB and the police has been concluded, which regulates the use of video surveillance systems of the BVG for police purposes. Thereafter, the police officer may conduct a rise dependent and independent video surveillance occasion from his work in the framework of police task fulfillment.
The camera images of all metro stations are in the BVG - displayed on a large video wall in a rolling process - earlier security control center. Having taken note of a recent crime to a subway station, police officer receives BVG staff immediately an event-dependent activation of the live video sequence of the subway station in question. Until the completion of the police action at the site this live video can be seen to support the emergency responders. Immediately thereafter, the video transmission for the police officer is terminated. Storage of the sequence is provided by the police does not take place. The Free and shutdown of the video sequence on the monitor at the police job is carried out exclusively by the BVG staff. Another reason for an event-dependent use of video surveillance systems of the BVG by the police as is the coordination and control of police forces in special operations and large-scale situations such. Demonstrations. Depending on the occasion, the use is for preventive or repressive purposes in accordance with the provisions of the General Security and Planning Act, the Versammlungsgesetzes116 or Strafprozessordnung.117
In the occasion independent video surveillance of police officers has unrestricted access to the live images of selected metro stations, which are regarded as crime-loaded gravity stations and wurden.118 included in the crime situation report of the police in this way the police can recognize suspicious behavior of potential offenders early and immediately emergency services to the affected Metro Station send. The crime situation image is based on crime statistics regularly updated and adapted to the corresponding crime trends. The occasion independent video surveillance by the police must be carried out exclusively at the metro stations listed in the crime situation report. A data storage by the police is also not effected.
3.6 video surveillance in public institutions in the country Berlin
The steady expansion of the CCTV we have regularly discussed in the past. Focus of our reporting was often the data protection review of video surveillance, which is carried out by the party responsible for the non-public areas (eg. As tradesmen, property management companies, private individuals). The insufficient knowledge about the extent to which video surveillance systems used in the public institutions of the State of Berlin, has led us in this respect to launch a survey. Excluded was the video surveillance in public schools, which we had already presented 2012 Design.
In order to gain reliable information on the extent to which, for what purpose and under what technical and organizational conditions make the responsible public authorities CCTV systems, we have developed a questionnaire. The DPOs have passed this questionnaire to the past in its fields of competence public authorities.
The feedback showed that video cameras be used by the Berlin administration in general are very cautious and reduced to a few priority areas. The number of cameras is always depending on the building size. Many cameras only serve as "extended eye", ie which have no record or memory function. This live observation is preferably operated in entrance areas of public buildings (town halls). It serves the porter staff merely as support for monitoring poorly-see areas (z. B. entrances, back entrances, courtyards).
Positive is the fact that in some cases record video cameras with memory function only outside the normal opening times image data. They serve the purpose of vandalism, break-ins or break-in attempts to document and to assist law enforcement. Typically, records are made inside buildings during opening times mainly in the field of automatic pay stations and vestibules.
In our analysis of the feedback only a few cases are noticed, where the responsible authorities have installed a disproportionately large number of video cameras that store image data for several weeks without reasonable cause or watching areas in which people are present over a longer period (eg. B . waiting areas).
3.7 Limited deletion Moratorium Protection of the Constitution
Due to the ongoing elucidation of the NSU and NSA complexes by courts and committees of inquiry of the Berlin Constitutional Protection asked for consent for the continued storage of personal data that could potentially have a reference purpose.
The NSA Bundestag committee of inquiry has not asked the Berlin constitutional protection to the transmission of data. The exchange of information with foreign services also takes place only via the Federal Office for the Protection of the Constitution. A gain in knowledge was therefore not to be expected, while to delete personal data will be canceled, contrary to the legal sollten.120 this, we have not been authorized.
Unlike, however, the situation in the NSU complex represented: It is not entirely excluded that the criminal case against Beate Zschäpe the courts may have to rely on information from the Berlin constitutional protection. To enable a full clarification of the rule of law deeply harrowing NSU Crimes, we would not complain about a continuing storage, if Parliament were to decide a limited erase moratorium. However, the adoption of a single case, the law would be preferable.
3.8 Electronic doping in chess
The German Chess Federation e. V. has presented the players of the 2. Bundesliga this year an agreement for signature, at which they should sanctioning offenses, particularly in the case of using inappropriate technical aids subdue. Of the players an explanation was demanded, with which they agree, even without initial suspicion with reviewing their electronic devices. This statement we have reviewed.
For background it should be noted that the chess sport is increasingly confronted with the fact that can be manipulated by means of modern means of communication, such. As Elephone Trunk smartphones, chess games through the use of computerized chess programs. The German Chess Federation e. V. has developed the appropriate player agreement to this so-called. To stop E-Doping, an understandable and legitimate concern for us. However, the player agreement turned out in testing that they are not to the legal requirements for consent is sufficient, in particular was too vague. In reviewing technical equipment for the presence impermissible aids a variety of personal data is noted necessarily. We have noted the Committee a precise definition requires that people have access to what specific content and how to deal with the information obtained. Since the unauthorized use of chess programs or apps in retrospect can technically not always understand, we have the German Chess Federation e. V. suggested to consider a total ban of Beisichführens technical devices during a tournament. He has signaled us to implement our proposal.
3.9 Investigation on Facebook
The police has begun this year to use a Facebook fan page as a platform for public searches for law enforcement purposes. To this end, they published on Facebook anonymised investigation notes, which can then be accessed in the form of a personal police own page. The police hopes that this greater success in the investigation of crimes. At the same time however, interfering with it in a significant manner with the right to informational self-determination of those affected a.
Published on the internet search data are searchable worldwide and due to the potential re-use by a vast number of people practically impossible to delete yet. In social networks like Facebook, there is also the danger that take place via the currently regularly not disconnectable comment function conjecture and insults that sometimes can have massive consequences not only for those directly concerned a public investigation as suspects or witnesses, but also to completely uninvolved persons. The police are trying to limit this risk through an editorial care of their fan page on Facebook.
Another problem with the use of social networks for public manhunt is that currently compliance with the provisions of the German Telemedia Act (TMG) for the use of data processing, in particular the rules for Reichweitenmessung121 and justice is at the major service providers such as Facebook to anonymous or pseudonymous use, 122 can not be guaranteed because at least Facebook fühlt.123 not bound as US companies at the TMG Police endeavors in this regard to guide the communication with users as possible outside of social networks, and also stores the set on facebook contents of the fan page on exclusively own servers.
The Conference of Data Protection Commissioners of the Federation and the Länder, the criticisms of the public wanted social network in a resolution zusammengefasst.124 In the event that law enforcement agencies yet the implementation of such measures is to be allowed, the conference calls in addition to appropriate technical and organizational measures the concretisation the specifications of Strafprozessordnung125 and their implementation rules in this area taking into account the specific hazards of the public wanted social network. In particular, the principle of proportionality is to be strictly observed.
Currently, the Minister of Justice conference debating amending criminal procedural rules for the implementation Öffentlichkeitsfahndung.126 We have taken this in relation to the Senate Department for Justice and Consumer Protection reaffirms our position and criticism of the use of such measures.
3:10 Information rights of prisoners
2013, we reviewed the implementation of very ambitious Justizvollzugsdatenschutzgesetzes127 and had deficiencies in the prescribed information to the prisoners on existing disclosure obligations and powers of professional secrecy feststellen.128 now there are positive about the observance of the rights of those affected by the data processing of the JVA prisoners to report.
We have reviewed the correctional recommended to inform the prisoners during recording on their information rights, including the right of inspection in their prisoner's personal file. Given the revision of the information rights of the prisoners, who looked at the legislature constitutionally as commanded, 129 we did not consider it to permit the exercise of those rights would be useful to the prisoners here on aufzuklären.130 according Legally provided such a comprehensive briefing of the prisoners so far.
Our recommendation was followed. In future, the prisoners in the form of the recording protocol are expressly advised of their rights to information, and the corresponding text of the law will be handed out. For a quick implementation of our proposal made in charge of Justice and Consumer Protection newly inserted by the Senate Privacy Coordinator for the Berlin prisons and the social services of the judiciary.
4 Youth and Social Affairs
4.1 Video recordings in Kitas
From the daily press, we have learned that in some day-care centers for some time filmed the behavior of children and their educators in daycare everyday with video cameras and doing extensive material is evaluated. The recordings are made in the context of the Federal Ministry funded for Family, Senior Citizens, Women and Youth and conducted by the German Youth Institute nationwide project to promote languages.
The consent of parents and the educational professionals who have created for all participating institutions the German Youth Institute, do not meet the data protection requirements. The documentation of the actions of children and educational personnel using video recordings touched their personal rights in particular. The statements used are too vague. In particular, it is not manageable for parents, which places should be provided, the resulting material. Whether the assurances the material used for training purposes and lectures will not be published on the Internet, can actually meet, is questionable. Also, there are doubts that can always be assured in the practice that only those children are filmed, for which consent has been granted.
Particularly problematic is the obtaining of informed consent by the educational professionals. The narrow requirements of Bundesdatenschutzgesetzes131 for data processing in the employment relationship are not met. Given the dependency ratio of employees to their employer consents can not in principle be voluntary and therefore not effective.
We have asked the daycare institutions involved to stop filming and delete the material. The Senate Department for Education, Youth and Science, which had also been previously not included as Kita supervision in the process, we have duly informed and involved, the Federal Commissioner for Data Protection and Freedom of Information. Because of the project funded by the Federal Ministry of numerous child care centers nationwide are involved, this has also caused a legal examination. Pending the completion of the audit, we have declared ourselves in agreement with a blocking of the existing recordings.
4.2 Transfer of income data in maintenance curatorship
Again and again we input, which is usually responsible for maintenance fathers complain that the youth welfare offices to pass in the calculation of maintenance for minor children shared income data to the child's mother.
Does the Youth Welfare Office declared under the so-called. Maintenance guardianship, usually at the request of the child's mother, the child's rights in relation to the maintenance debtor child's father, it takes a different role than in the provision of educational assistance. The Youth Welfare Office transfers the duties of assistance each of its officers or Angestellten.132 The counsel makes a minor child existing in relation to the maintenance debtor civil Auskunftsanspruch133 contends. The maintenance debtor parent is obliged to provide an income and asset information, to the extent necessary to establish a maintenance claim or an obligation to pay maintenance. This obligation applies in relation to the minor child or the child's mother as the legal representative. By the youth welfare office makes these claims, it will also act as guardian of the child. This special role of the Youth Office also carry the data protection rules into account. The assistance may collect and use, to the extent necessary to perform its duties social data. Since the assistance and the child's mother are on equal footing, it is necessary that the child's mother is informed about the status of the recovery of maintenance. Specifically, this means that it is necessary to enforce maintenance claims that the entertaining legally relevant data is made available to the requesting parent. Only such a representation is possible in the interests of the child.
Note also that the Youth Welfare Office is responsible for only a cursory examination compulsory, so can not be expected that the Youth Welfare Office undertakes blackening of detailed information before sending. The maintenance debtor should already when submitting the documents ensured only submit the relevant documents or make entertaining redactions. We believe that problems can be avoided in practice then.
4.3 Youth Social Work Agency - caring counseling instead of "caring siege"
To facilitate entry into working life for young people, should be set up in Berlin as in the Free and Hanseatic City of Hamburg a youth vocational Agency (JBA). The employment agency, job center, youth welfare offices and the vocational schools are doing "customer friendly under one roof" offer their services. For the construction process of the JBA, the project was "to implement youth employment agency in Berlin!" On June 12th, 2014 started. We have closely followed the project, in particular, we have played a major role in the working group "Privacy and Security".
The high youth unemployment rate in Berlin is to be reduced by young people to facilitate the switch from school to work. In this phase, the young people are many different institutions available, namely the Employment Agency, the job centers, the youth welfare offices and the vocational schools. In future, these institutions are "customer friendly under one roof" offer their services. The JBA Berlin but will have no legal personality. This means:
1. Each institution persists independently each for themselves.
2. Each institution is responsible for personnel, material and financial resources.
3. Each institution has its own legal relationship with the young people.
The JBA Berlin is therefore not a new organization but a pure working alliance between the institutions involved.
The project "Youth Social Work Agency" is headed by the Senate Administration for Education, Youth and Science. The main project objective is to formulate a cooperation agreement for the Alliance parties. This regulates the cooperation and therefore the data processing activities. In particular, the following aspects must be observed:
• All pupils of general and vocational schools are to take career-oriented services of the Employment Agency in and participate in a professional consultation from grade level. 9 However, such an obligation does not exist.
• For the Employment Agency may contact the young people,
is previously informed consent of young people or their legal guardians is required. With this consent, you agree that the school the required data submitted to the Agency, so that they can advise, mediate and promote.
• For the fulfillment of tasks of the individual institution, it may be necessary that the data of the young people need to be replaced. The data may only be replaced when the Sozialgesetzbuch135 permits or consent is obtained.
• For students who remain after counseling without a connection option is only taken by the Employment Agency again contact if they have given this consent.
• For the school organization, school development planning as well as the monitoring and enforcement of education and compulsory education automated Schülerdatei136 to be created. These may be used only for the statutory purposes and not related to the JBA Berlin for tasks.
The First Mayor of the Free and Hanseatic City of Hamburg is linked to the local youth employment agencies - have spoken of a target "caring siege" 137 young people - perhaps jokingly. Although it is sometimes difficult for the authorities involved in bringing to the youth the statutory rates for vocational guidance and counseling, they must always respect the self-determination of young people. Instead of "caring siege" should be the goal of caring advice and support.
4.4 Transmission of social data to the police at the accounting fraud suspect
For the payment of benefits under the Social Code Book XII (SGB XII), the social welfare offices use the IT-specialist software OPEN / PROSOZ. The Senate Department for Health and Social Services has access to the data stored in social OPEN / PROSOZ and passed the social data of several hundred recipients of social benefits to the state police. These social data it was the specific social welfare office, the file number and date of birth of the respective beneficiary. The background was a list held by state police investigation for accounting fraud by two care services. Among the victims of the suspected care services include welfare recipients or the social welfare offices, the cost bearing. In order to approach the affected social services and continue the investigation there can, the state police had approached with a request for information to the Senate Department for Health and Social Affairs.
Access to the data stored in OPEN / PROSOZ data by the Senate Department for Health and Social Affairs and the subsequent data transmission to the State Office of Criminal as unlawful.
Both the stored in OPEN / PROSOZ as well as the information provided to the State Criminal Investigation Department data is social data. This is specific information about personal or factual circumstances of an identified or identifiable natural person (data subject), the werden.138 charged by a social security authority with regard to its responsibilities under the Social Security Code, processed or used
Unlike the Senate Department says the affected beneficiaries on the basis of records submitted to the State Criminal Investigation Department are determined. Use the relayed information concerned social welfare office, the file number and date of birth of each beneficiary whose identity can be established without a disproportionate effort. Further, as the case underlying displays, the Senate Department for Health and Social Affairs itself establish the personal reference by a (albeit illegal) access to the data stored in OPEN / PROSOZ.
The Senate Administration has accessed in knowledge of their own lack of competence on the data and thereby exceeded its assigned area of responsibility aware. Also in the subsequent data transmission to the Senate was announced that the State Office of Criminal each request for information to this originally responsible social service authorities, so the district's social services, should have been addressed.
The procedure of the Senate Department for Health and Social Affairs was beanstandet.139 addition, we have the Senate for future requests of the State Office of Criminal Investigation, and presents, complete order data processing agreements with the social services a solution. The social services would instruct the Senate Department for Health and Social Services so, OPEN / PROSOZ data to filter whether there is benefit recipients in the respective social welfare office, who are cared for, which is under suspicion of fraud Nursing. For a successful search, the Senate would only inform the social services, the file number of the managed by the Nursing benefit recipients.
The Senate Administration has implemented our recommendations.
After we had delivered an opinion in 2010 on a first draft of the revised version of the law on aid and protection measures with mental illnesses (PsychKG), the Senate Department for Health and Social Services sent us in July 2014 after four years a revised bill. Also in this design composed with regard to some provisions continue to privacy concerns. So was, inter alia, provided that by regulating the powers of employees of the social psychiatric service permitted in the fundamental right to inviolability of the home could have intervened. In addition, a system for the production of the documents in the records department housed individuals should be created which are not differentiated between the different accommodation types.
Even more rules for disclosure of data to third parties, for visual and audible monitoring of incoming and outgoing communication as well as to the duration of storage of data encountered privacy concerns.
Meanwhile, the Senate has sent us a revised bill again, in which fortunately the amendments we are proposing have been considered mainly.
5.2 Implementation of cancer screening and-Register Act
Which entered into force on 9 April 2013 cancer screening and -registergesetz obliges countries to establish clinical cancer registry. The necessary for the establishment and operation of clinical cancer registries including provisions of data protection provisions remain the relevant national legislation reserved.
In the meantime, the State of Berlin has taken the decision to set up together with the state of Brandenburg, a common clinical cancer registry. For this purpose under the direction of the Senate Department for Health and Social Affairs is a working group was set up involving the health insurance, the physicians' association, the Hospital Association and the Medical Association. Representatives of the Land Brandenburg, the Medical Association of Brandenburg and the Tumor Center Berlin e. V. are consulted.
We have made the Senator of Health pointed out that the following aspects in the implementation deserve special attention:
Those affected must be given in the register is an effective right to object to the storage of their data. The experience, for example with the nationwide Childhood Cancer Registry show that the inclusion of self-determination of those affected the necessary degree of completion of the acquisition is not jeopardized.
The registers is a variety of tasks assigned to that require a stepped base data. This should be met with an outline in a nearby supply area and in a clinical register area, as it is planned by a number of countries on the basis of existing structures. As in epidemiological, so also satisfy the clinical register area pseudonymous data for performance of tasks.
Data on cancer patients, which are provided with their names should be stored only in facilities that are involved in cancer treatment. This data is stored on the promotion of direct patient-related cooperation in the treatment of cancer and asked the attending providers available. They are best placed where they will come primarily for use, namely the powerful Berlin tumor centers that already operate now clinical cancer registry.
In the provision of data of the cancer registry for treating physicians to the particular sensitivity of the information collected must take into account. They give a comprehensive picture of the health of the affected people with cancer. This goes to the point that is recognizable with which life expectancy those affected have expected.
The safety requirements are consequently extremely high. Moreover must be a reliable verification that a person who retrieves these data actually treats or those affected and the data required.
An Assistance here is a set of requirements for the transmission of cancer registry data, which was adopted by the Conference of Data Protection Commissioners of the federal and state governments on our initiative.
5.3 recast guidance Hospital Information Systems
In March, the Conference of Data Protection Commissioners of the Federation and the Länder adopted the second version of the developed under the auspices of our guidance (OH) Hospital Information Systems (HIS).
This explain the Data Protection Officer to the data processing in the hospital applicable law and give practical advice on how hospitals can meet the statutory requirements and expectations in the operation of KIS.
The first version had taken a lively discussion on both sides of the operator and the manufacturer of KIS hervorgerufen.141 The Data Protection Supervisor has the diverse comments with interest. They decided to create a new version of the guide, which maintains the aggregate in the first draft requirements in some new formulation and expanded to include the newly gained knowledge. The competent working group entered into an intensive exchange with the German Hospital Federation, to take into account additional considerations when updating the text can.
The now present second version clarifies some legal requirements, take greater account of the width of the country's legal regulations on data protection in the hospital, emphasizes the freedom that present themselves to hospitals in shaping their hospital IT, and clarifies the link between legal and technical requirements , In addition, it contains new information about design of cooperation between hospitals and medical care centers in the same ownership.
5.4 Schweigepflichten in communities of practice
We have the requirements of medical confidentiality tested in a community of practice, which is connected a legally independent study center.
In communities of practice (PG) close together several legally distinct practices to jointly use resources such as rooms and computer technology, as well as staff. The treatment of the patient takes over continues to be a single practice. However, a patient may choose to consult in the absence of doctors practice a medical staff of another practice.
Between the staff of the practices involved, the confidentiality shall be respected. Only in representative case, the data may be disclosed. Common personnel can not be prevented from working for several surgeries and view data. It stands under the management powers of the treating physicians in each individual case.
This must also be technically in practice management system (PVS) reflect, insofar as this is shared. If this is the case, access permissions need to be set which reflect the limits of confidentiality in PVS. Moreover, it must be possible to reconstruct the number of hits in order to examine disclosures on their admissibility can.
In the tested by us PG such separation was not consummated. Passwords were shared. There, access to the data of all patients was always possible. We have the shareholders of PG prompted to set up individual user accounts with a private password and coordinated access rights for all employees.
A general access to all patient data was also open to the personnel of the study center. To make matters worse, that only part of the shareholders of PG were also shareholders of the study center, so that the nonparticipating physicians respect of the staff of the Study Centre state no authority. Furthermore, we found that documents were stored in practice Community Study Center who had nothing to do with the studies conducted there.
We have group practice and study center prompted to make a separation of data and systems. Communications between Praxisgemeinschaft and study center must be comprehensible, especially for the not involved in the study center physicians, as long as their patients are affected. At our request, the discovered PG documents from the study center were brought back into the PG.
5.5 Transfer of patient data to the Labor GmbH without legal basis
By order of the Chamber of Deputies from 2010 the laboratory Berlin-Charité Vivantes GmbH was founded as a subsidiary of the Charité University Hospital Berlin and Vivantes Netzwerk für Gesundheit GmbH. Since the beginning of business on 1 January 2011 the recording laboratory tests of patients of Vivantes Network for Health GmbH and Charité Universitätsmedizin Berlin by the new Labor GmbH are carried out. We have examined whether in the merger of the laboratory areas of Vivantes and Charité the protection of patient data were taken into account.
Along with the technology and the data of the persons treated previously at the two hospitals were handed over to the new laboratory company. These data transmission behind the backs of patients represents a breach of medical confidentiality and data protection.
We have asked the Labor GmbH to control the retransmission of illegally acquired and stored data to the Vivantes Network for Health GmbH or the Charité Universitätsmedizin Berlin in written agreements with the Regulation, and to perform. The Labor GmbH will fulfill this requirement. We have also asked to restore a lawful state of both the Charité Universitätsmedizin Berlin and the Vivantes Network for Health GmbH for the speedy withdrawal of old data.
5.6 Inadequate IT procedures in public health offices
Tests at the health departments of the districts Steglitz-Zehlendorf and Friedrichshain-Kreuzberg led to complaints.
In the years 2012 and 2013, we examined the method of counseling center for people with disabilities, cancer and AIDS patients of the Public Health Department Steglitz Zehlendorf and the Child and Youth Health service of the Health Department Friedrichshain-Kreuzberg.142 In the former health department led the irregular extension of a process means that sensitive data was stored without adequate confidentiality and verifiability of dealing with them. In the second method was introduced with similar deficiencies without data protection consideration.
The complaint at the district office Steglitz-Zehlendorf was unavoidable because the district office refused to return to a legally compliant operation of the process. It was in this case an efficient transaction processing and the prevention of this investment needed on the rights of the client and the security of their data. In this match, that had been planned conceptually neither for the present process nor the district office as a whole security measures, although this planning of the Data Protection Act and regulations prescribed wird.143 The opinion on the complaint is still pending.
The complaint in the district of Friedrichshain-Kreuzberg, however, led to the setting of the irregular system introduced. A follow-up procedure was announced. However, so far we have no meaningful documentation on this method were given notice.
5.7 Internet-based aftercare
We have repeatedly advised vendors that collect health data over the Internet for their services. A field of application is interviewing patients to determine the long-term effect of treatment.
If doctors want to assess the quality of their treatment, they are facing a problem when the patient introduced to them in the course not again. How can they know whether their treatment was successful? Does the patient have changed the doctor or feel they are healed? What quality of life has reached the patient after completion of treatment? And what about six months or two years later? In many cases, do not answer the respondents when they are written. Can reminder e-mails and questionnaires to help on the Internet?
The treated doctors are obliged to remain silent about the insights they have gained in the treatment. Do these findings do not reveal, not even the fact that they use a medium that is commonly used, but is not protected against information third: the e-mail.
Already in the return address of an email can put a sensitive information about a patient, eg. As if the shipping doctor has specialized in a particular disease such as cancer. Perhaps the patient is to be even more reminiscent of a particular therapy and reference is made explicitly to it in the email. From the form of therapy, the disease to be treated can be read, information which has certainly not intended for publication in the world, the patient.
So unencrypted emails to communicate with their health care provider of the patient are fundamentally unsuitable. An exception may apply if necessary when a reminder e-mail is sent from a commissioned neutral service provider and kept as neutral in that it reveals nothing about the receiver. This may be as an invitation to take a leaflet to hand back or attend an agreed address.
Web services are suited perfectly for the detection also of health data, however, subject to three conditions: First, the name of the patient should not be detected. This is the formerly treated physicians already known. An agreed in treating pseudonym sufficient. Secondly, should be able to identify the patients clearly that they have come to the correct website. This involves a so-called. Certificate with Extended Validation for the Web server and optionally a confirmation code, the only real website can issue in response to the input of the valid password by the patient. Part of the third party to the next encryption of data transfer a number of technical security measures for the receiving server. To this end, the Federal Office for Information Security keeps prepared detailed recommendations.
6 Employee Data Protection
6.1 Access control of employees
Anonymous, we received an indication that the access control system of a company was also used to conduct and performance assessments, which even in one case led to the dismissal of an employee. In the context of a tax audit and the control system was reviewed. The access control card depicts the connection between access control system and time & attendance system. According to the company it was necessary to save the access control with the date, time and person to check in case of loss of an admission card can, if and when the card since losing illegitimate was used. Despite frequent card loss, the access control data have never been used for this purpose.
The company confirmed the process for termination of workers and justified this by saying the supervisors of workers have gained the impression that the contents of the flexitime sheet and their actual attendance differed blatantly. Then he had the access control data of employees can print out and compared with the data in the flexitime sheets. In the further course of the matter, it was found that the workers had actually deceived about their true attendence. The person concerned has been spoken either before this measure was still informing them about it afterwards. Also, the council and the Data Protection Supervisor were not involved.
The procedure of the company constituted a privacy violation. Personal data of employees may be collected, processed or used for the purpose of employment relationship, if this is necessary for the implementation or termination of the employment relationship ist.144 Since the control data access system is the existence of the card abuse by a third party in Loss of the card according to the company have never been used, they are collected and stored in the access control system for the determination of a card abuse was not necessary and therefore illegal. There is therefore an obligation to delete this Daten.145 Use of the data stored in the control system personnel data represented an illegal change of purpose, since they are not led by a third party, but a behavioral and performance assessment of employees to establish a card abuse.
We initiated an administrative fine proceedings against the company, which then prepared to pay the fine agreed and provided for a privacy-friendly design of the access control system.
6.2 Premature collection of applicant data
A petitioner sent us a twelve-candidate questionnaire clinic with a total of 116 questions about health, disabilities, hobbies and family circumstances. The questionnaire had to be completed before the first interview.
The collection and processing of data is allowed if this ist.146 necessary to establish the employment relationship Only those questions are asked, at the truthful answer the employer has a legitimate interest to be protected, because of its need to withdraw the interests of the applicants , It also depends on in which application stage is the candidate or the candidate.
In the application procedure itself can only access the first questions are admissible, which are necessary for the decision as to whether the persons concerned are at all suitable to enter into the closer selection.
An answering questions of a personal nature that have nothing to do with the activity carried out, such as hobbies, a membership in the association or family circumstances, the employer has a legitimate interest at any time. Such questions are therefore inadmissible.
In particular, data on the health, disease or any disabilities a special Schutz.147 The employer relating to these data only a demand for information if they are a prerequisite for the establishment, exercise or defense of legal claims sind.148 After General Equal Treatment Act requests are subject to health restrictions allowed when an actual impact on the activity or have this impossible machen.149 no circumstances the employer may raise detached disease data from the post to be filled.
This we informed the company that followed our opinion. The personnel questionnaire is no longer used in this form. Candidates questionnaires were restructured and contained a total of fewer questions.
6.3 E-Recruiting - the job portal of the Berlin administration
The job portal Interamt.de will be replaced in most settings authorities with a new job portal that meets the specific needs of the recruitment of civil service for the State of Berlin.
By fully IT-supported and media-consistent business processes the workload on both sides of the candidates as well as for the employees of the adjustment authorities to be greatly reduced. Thus provides the IT-supported application and adjustment system the applicants not only to research a desired location within the Berlin administration, but also the opportunity to submit an application online. With little effort the application documents can be transmitted. An essential part of the new process is the IT-supported aptitude diagnostics. This makes it possible that candidates can perform aptitude test procedures online. The launch started on November 5. In this first wave to be obtained in most district offices and some Senate administrations mainly junior staff.
Through a presentation of the project at a meeting of IT coordination committee we became aware in May on the method. Below the ambitious project was efficiently by the DPO of the adjustment authorities and accompanies us. The first very restricted documents have been quickly adapted to our needs, so that the project could be started on schedule. Particular attention was paid mainly to the set up measures to protect personal data as well as the fine-grained privileges. However rework are still necessary - especially in the preparation of other concepts. The process will continue to actively monitor and check on compliance with the data protection measures.
6.4 e-mail accounts with Toll Collect
The partner of Toll Collect GmbH, Daimler AG and the German Telekom AG, planned an extensive transfer of business documents to Toll Collect GmbH in its domain. This affects were also the e-mail accounts of 85 employees of the Toll Collect GmbH. This is a company that was commissioned by the Federal Ministry of Transport to develop the system for taking the truck toll on German motorways to operate and settle the fees. The emails were needed as part of a compensation claim by the Federal due to shareholders.
The problem of the transfer of e-mail accounts was also because the employees private use was permitted. Thus, it is forbidden to inspect the e-mail accounts. The employer shall observe the secrecy of telecommunications.
The transfer of business documents should be done in three stages. First, the affected employees should be informed and given them a 14-day period for viewing the e-mails according to private or sensitive content. The so-adjusted accounts should then be communicated in a second step to the trustee. They should be secured as evidence and cached. Ultimately, the database should be searched by screening for keywords. The remaining filters in personalized documents should then be given to the shareholders.
In a counseling session with the partners we set out that the transfer of personal data to a trustee is permitted only if this is necessary and there is no evidence that the legitimate interests of the employees concerned überwiegen.151 Already the necessity was not given, so a transmission to the trustee would have been unlawful. Rather, the Toll Collect GmbH should the trustee an order data processing contract abschließen.152 This ensures that the Toll Collect GmbH even "Mistress of the data" remains and will remain the decisions about the handling of the personal information with her.
6.5 phone lists on the Internet
For the unemployed, it is often difficult to call the official in charge or the person responsible at the job center directly, many job centers only refer to a central point. To solve this problem, the Pirate Party has set internal innos D6000 phone lists of nearly 130 job centers to the Internet at the federal level. Published name, organizational unit, room number, telephone and competence (in particular allocation by letter), the number of hours and the working week days were in part-time employees not specified. To protect workers, the party made sure that the job center lists are not indexed by search engines. The internal phone lists came only a small proportion of requests for Freedom of Information, the majority of the lists had received the party of "activists" and "activists". As these are reached to the data, the party was not known. They assumed that the publication of employment data was unobjectionable because of the Freedom of Information Act. Against the publication of the lists a number of complaints have been received by us.
The Job Center for Freedom of Information Act in force of the Federal (IFG) 153 does not provide for restrictions on use, informed consent or prior approval requirements with regard to the use of official information. The Pirate Party must therefore, telephone lists of job centers that she had received the requests under the IFG, also publish on the Internet.
As far as the DOOGEE X5 phone lists but not from such information additions to job centers, but by "activists" and "activists" come, the publication, however, can not be justified by the IFG. For the right to free use of the information is mandatory in order to legitimate access to information at the Job Center. The lawfulness of the data processing independently of the IFG is already therefore doubtful because the Pirate Party has no knowledge of how the "activists" and "activists" have been legally shown and follow the Erhebungsvorschriften154 in the possession of the Job Centre data. When detectable rightful data acquisition by the Pirate Party, the publication may legitimately sein.155 In weighing the legitimate interests of the Pirate Party in a publication of the data with the legitimate interests of the person concerned, the Court of Bundesverwaltungsgerichts156 it should be noted that the publication of certain employee data (name, title, business telephone number, business e-mail address) regards as lawful. However, to note here is that the law on the publication by third parties can not be completely transferred. Because only the department can ensure that the data is always up to date and - if necessary - those remain excluded from vulnerable job center workers from the publication.
The Pirate Party has the personal data on the exact working hours now deleted. She has promised in future to publish only data which it has lawfully obtained by the IFG. We recommend that you update the databases every six months.
On data protection within a Gewerkschaft157 is important to note that it is almost exclusively to special types of personal data when the data being processed, 158 since they can directly or indirectly involved, trade union membership. Due to a series of special rules for such so-called. Sensitive data subject to this a particularly high level of protection. At organizations that process predominantly sensitive data, increased demands to be made on the appropriate technical and organizational measures. Against this background, we examined the end of 2013 to ensure data protection in the United Services Union ver.di This organizational and structural deficiencies have been identified, of which have not all been fixed.
The staffing of privacy organization is insufficient. So in addition to the data protection officer just another executive post in the field of data protection is provided. However, it is not possible for two employees to its headquarters in Berlin to oversee the handling of the personal information of more than two million members and thousands of employees in a variety of offices nationwide and resolve grievances quickly. We have over the federal board, therefore the recommendation by staff to increase the field of data protection and in particular to work towards decentralization. So should be appointed as data protection partner in all country districts at least one person. These regional contact to assist the data protection officer at headquarters, by teaching him about current privacy-related projects or issues early and stand at questions on the spot advice and informational support.
With respect to the members of data processing we complained about a nationwide read access to the members database for all employees who are entrusted with the care members. The aim of this broad access rights is to be able to offer members regardless of their originally responsible offices throughout Germany a comprehensive service. The legitimate service concept is exempt from the obligation to take appropriate measures to ensure compliance with data protection sicherzustellen.159 an appropriate measure in order to prevent abusive database retrieval, is the logging of all calls made read calls and regular spot checks by the data protection officer. As in other areas, eg. As the banking sector, we have called for such a solution from the leaders.
For technical and organizational point of view the consultation of members is not without problems in preparing the tax return by volunteer workers. Although this union-owned computers are provided, but the use of private computers can not be excluded. This raises questions such. As for the protection of private equipment and a privacy deletion of data after performing the task that previously could not be fully answered. The union has pledged to the risks of a possible use of private terminals for official purposes (Bring Your Own Device - BYOD) to analyze 160 and to undergo a review. Come as a union-owned computers mobile devices are used, we recommend that you encrypt the memory, since a loss of these devices during transport can not be excluded. Only the entry of a password to access mobile devices and software applications may not provide adequate protection for the confidentiality of stored data.
The communication by e-mail with and within the trade union carried out previously unencrypted. Our recommendation to introduce an end-to-end encryption, has been taken up in the current security concept. Already now it is possible to deposit when communicating with members or external confidential documents in an encrypted area. After picking up or expiration of a defined time period, the documents stored there are automatically deleted.
7 Urban Development and Tourism
7.1 Excessive data collection with potential tenants - no apartment without "data Striptease"?
Once again we have reached inputs from prospective tenants, who reported that landlords raise exceptionally large amount of data from home seekers. We have followed these instructions and found out that these allegations were justified in many cases.
Owner may only collect the data that is required for the selection of a suitable tenant sind.161 This includes data on the economic performance of the prospective tenant, because landlords have a legitimate interest in ability to pay contractors. Not allowed, however, is the collection of data that are not relevant to the tenancy. This includes information about marriage prospects, pregnancies, children wishes, party, Mietervereins- or trade union membership, personal preferences, hobbies, illness or disability.
Equally important is the time of data collection. In principle, data may only be collected on the economic situation when in fact promote the prospects after the house tour to a particular apartment. Unlawful it is, however, to raise before the tour date comprehensive data on the economic situation of all tenants on stock if it is still unclear whether the person really wants to apply for the apartment. Before Appointment information may for identification, the accessibility to housing needs, to domestic animals and, if necessary, data are collected from the Wohnberechtigungsschein. In one case, a housing company wanted just then assigned dates for a house tour, if the applicants could submit in advance a corresponding credit reports. Now that we have introduced a Anordnungsverfahren162, the company has adjusted its practice accordingly.
In other cases, which were known to us, we have noted the respective owner this legal situation. This has been sufficient in most cases that these have their data collection limited. But it is to suggest that the number of unreported cases of those who collect too much data, is considerably higher. Many home seekers enter for fear else to get an apartment, their data on their own price and do not complain to us. However, there is also the possibility of improper questions from the owner to answer incorrectly, without this constituting an Event of Default.
The Düsseldorf District has developed a guidance that the legal requirements konkretisiert.163 This guidance is to assist landlords to comply with the legal obligations. In addition, we have in common with the Berlin tenants association e. V. a brochure on data protection and privacy in the tenancy erstellt.164 This brochure is aimed at tenants and will provide guidance on privacy rights in tenancy.
7.2 misappropriation Ban Act - Data collection on the Internet?
End of 2013. misappropriation Prohibition law is the so-called. Came into force. A misappropriation within the meaning of this Act is available for. Instance, if housing is repeated rented as a holiday. This is to ensure that in the more central districts remains enough affordable housing for people living here permanently. In implementing the law, the question which data collection powers available to districts in identifying purpose foreign-occupied dwellings available. In particular was questionable whether in the search for apartments on the internet, personal data may be collected.
The law grants to the districts of a far-reaching powers. § 5 entitles the competent authorities z. B. for entry into private homes and for the collection of personal data. This personal data must always be first but requested from the victims themselves. Only if this is not possible, data may be collected by third parties (principle of direct survey). A legal basis for the internet search is not enshrined in this Act. This is also not necessary since the illegal use of an apartment is a misdemeanor. This can be made to the investigative powers of the misdemeanor law that permit collection of personal data on the Internet.
This requires, however, that an initial suspicion of a misdemeanor is. This threshold is set by law is very low. An initial suspicion exists already if sufficient factual indications of an offense are present. He is given z. B. if at the Authority notes of citizens received or offered on the Internet in a particular neighborhood considerably more apartments than were approved. A retention of personal data of all offered apartments on stock - regardless of whether the suspicion of an administrative offense is - however, is inadmissible. The reason is that not covered all the flats offered on the Internet by the prohibition. So z. B. is a home exchange or a one (sub) rent permitted under certain conditions.
7.3 Photographs of private houses through the district office
We have received indications that an employee of the District Office in a particular neighborhood center anfertigte photographs of building facades. The residents were asked beforehand neither permission nor informed about this measure. They only learned of it when they had the photographer randomly observed and interviewed in its activities.
On our demand told us the district office that the photographs had been made for official purposes of the Urban Development Office. For this purpose, it was generally stated as purpose the inventory for the supplement urbanistic concepts and development plans in the district. After we had announced an audit visit, we were told that the photographs in question had been deleted.
Data collection by the district office was challenged. While the Urban Development Office may collect personally identifiable information when there is a legal basis for it. Such legal bases are included in the city planning data processing law, for example. It shows all the data are described in detail, which may process the Urban Development Office for the performance of its duties. Photographs of private houses are not mentioned there, and reveal much more about the personal life design of residents than the dimensions given here and other details. In addition, this law stipulates that those concerned shall be informed of the data collection.
The requirements of other legal bases were not given here. It is true that the Berlin Data Protection Act requires that certain manifest data may be processed if legitimate interests of the person concerned does not affect werden.168 However, such data may in principle be raised only with regard to the people affected, it should be noted that the information can be refused .169 In addition, the data collection for the legitimate performance of official duties must require sein.170 that the photographs were not necessary for the fulfillment of the tasks of the Urban Development Office, was also evident that the photographs were deleted after the announcement of our audit visit immediately.
On the complaint through the District Office has stated, still cling to his conception. It is legally permissible, that the Planning Department could create photos City of private houses, even without the residents informed. 7.4 Protection of privacy on the hotel toilet
From a newspaper report, we learned that in a newly opened hotel in Berlin through the floor to ceiling panoramic windows on the 10th floor offers not only a beautiful view of the adjacent zoological garden and especially the monkey house; the Zoobesucherinnen and visitors had the report says an unobstructed view into the lying in 10th floor of the hotel bar, the restaurant and the present there sanitation.
We then conducted an on-site inspection of the hotel. We could not find that measures were taken by the hotel to protect the privacy of the hotel visitors in the sanitary sector. On to the ground throughout glazed windows about a meter high adhesive films were attached, which brought a frosted glass effect with it. This has ensured that the grounds of the Zoo can be seen from just one person's head because of the steep angle of view in the field of glued privacy film that uses the toilet. The premises in itself can not be seen by zoo visitors than toilets.
7.5 Improper disposal of visa applications
We have been informed that, documents of applicants are not handled correctly in a travel center that issues on behalf of foreign consulates visas for non-EU countries. So many documents were found in a public dumpster the Travel Centre, which were only roughly torn partly by hand and revealed personal data such. As pictures, names, health insurance and travel routes from people who had applied for visas.
The Bundesdatenschutzgesetz171 obliged responsible authorities to take the necessary technical and organizational measures in order to achieve the data protection compliant and safe collection, processing and use. Unnecessary documents or documents with person-content must be destroyed so that their recovery from the current state of the art can be regarded as excluded.
We called on the travel center, a comprehensive examination of whether adequate precautions have been taken at all its plants in order to ensure an appropriate legal requirements destruction of documentary of personal documents. As a technical measure is particularly important to ensure that all persons entrusted with the collection, processing and use of data shredder employees are available, destroy the documents according to the requirements of DIN 66399th In organizational terms, shared with us the travel center that an internal written work instruction exists which expressly requires all employees to destroy documents written exclusively by means of shredding. This applies specifically for unneeded documents, errors / bad copies, notes and minutes of meetings. The management assured us that this work instruction, z. B. is communicated by circular e-mails or personal speeches, to employees at regular intervals and in an appropriate manner. The incident was used as an opportunity to all employees again and additional emphasis on strict compliance with the legal regulations and the relevant case internal company instructions and introduce random inspections at regular intervals, which should prevent future incidents of this kind.
8 Research, Education and Culture
8.1.1 investigation of drug testing in the GDR - not without Notice
The elucidation of drug tests conducted by international pharmaceutical companies in the GDR met with great public interest. A research project of the Institute for the History of Medicine at the Charité has set itself the workup of clinical drug research 1961-1989 aim to December 2015 respectively. Showing u. A. Patient records analyzed.
The Research Institute of the Charité hospital may acquire for the internal research patient data Charité verarbeiten.172 also without consent Although in principle there is a confidentiality interest of patients to their treatment data. However, there is a considerably overriding legitimate public interest in the work-up of the drug tests.
But concerned must be able to obtain knowledge of the data processing. After a review of the current address data of all affected by the file analysis patients is unacceptable due to the passage of time and the large number of eligible files. The project must instead be accompanied by an adequate publicity. It must be possible to object to the use of the own patient data. Specific contacts and procedures for the implementation of conflict must be fixed.
For the research, we proposed a two stage process. Certain employees of the Institute of History of Medicine should first review the question after the research concept coming medical records in general for their suitability. If there is a fitness because about certain keywords appear, the Act should be made anonymous. Then they will be handed over for the depth, individual case-related research to another employee of the Institute.
8.1.2 Home visits of the Youth Office in families
At Freie Universität Berlin a project sponsored by the federal ministry responsible research project on the importance of home visits in the context of the protection contract with child endangerment ("Habek") is currently being carried out. There are also files are analyzed at youth welfare offices.
Social data that have been entrusted to a staff member or an employee of a carrier of public youth welfare for the purpose of personal and educational aid, subject to special Schutz.173 without consent should they not be made available to third parties in principle. Before analyzing acts of youth welfare offices by researchers must therefore in principle be carried out an anonymous, so conclusions on the specific individual case are excluded.
Within the research project, a guide has been developed for this operation. The anonymisation is done by the respective clerk or the clerk of the Youth Office itself. Information about the Youth Welfare Office and the concrete Day and Month are blackened. Information such as names and places to be replaced. For the anonymization process auxiliary lists are provided so as to be replaced by uniform name pseudonyms and the correlations are not lost for the Forschungsar-beit. The guide contains the indication that after completion of processing the list with the original name must be destroyed.
Cases of child welfare hazards which have specific characteristics, however, must be excluded from the research. Even with the remainder provided anonymization process to draw conclusions about the specific facts are not excluded in these cases. For about sensational cases are often reported in the press. Criteria for exclusion from the investigation are set out binding. The researchers have confirmed, this should also be included in the Guide to the Youth Welfare Office employees.
Are the requirements of the guidelines implemented by the youth welfare offices, after destruction of the list there is a lack of Accountability. From this point, all other relevant provisions in principle be assumed that anonymity of the information in compliance. From a privacy perspective, this approach is to be welcomed.
8.2.1 Outsourcing of library management
Berlin universities have approached us with the question of whether the library management on a "software as a service" service of a provider outside the European Union can be changed. Using the software to be processed, inter alia, data from the library using as well as master data, rental histories and fees facts. To use the service, which provides the software and cared for and thereby come into contact with the data of the library-using, a legal basis must be.
As a rule, "Software as a Service" services are carried out as commissioned data processing. However, the Berlin Data Protection Act does not provide possibility to data processing carried out by contractors outside the Member States of the European Union. Provided only that order data processing carried out in another State, or a Member State of the European Union werden.174 The outsourcing of data processing to a provider outside the European Union are not admissible.
At most pure maintenance of data processing systems by bodies outside the European Union can permissible sein.176 maintenance are time-limited measures to ensure the availability and integrity of the hardware and software of data processing systems which are subject to strict purpose limitation. Maintenance includes installation, maintenance, inspection and correction of the software as well as the inspection, repair and replacement of hardware.
Data processing systems shall be designed so that at their maintenance can not be accessed personal data as possible. If the system design this is not ensured, it must be ensured by technical and organizational measures, that access is limited to the personal data absolutely necessary for the maintenance. The written rules for maintenance must in particular provide that only designated personnel performing the maintenance and with any means of temporary service access can be enabled and controlled by the responsible body.
8.2.2 No insight into the audit file?
A petitioner in October 2012 at the Senate Department for Education, Youth and Science the right to inspect his examination file to the First State Exam Magisterium, which he had filed in October 2010 requested. The consultation was organized by the Senate Administration having regard to the First Teacher Examination Regulations (1 LPO) or the timing rejected.
In the 1st LPO stipulates that the candidate has the right to inspect the examination file at the examination office within one year of publication of the results of a partial examination and the overall result of the test. We have the Senate Department for Education, Youth and Science noted that the scheme can not be seen necessarily mean that after one year since the announcement of the examination results a consultation is to be excluded. In particular, the 1st LPO can through the Berlin Data Protection Act (BlnDSG) perpetual guaranteed right to inspect files not beschränken.178 background is that according to the Constitution of Berlin (VVB) content, purpose and scope of a regulation authorizing müssen.179 be determined in the law this means that the legislature must determine which questions should be governed by the ordinance. However, the 1st LPO underlying statutory authorization in the Teacher Education Act (LBiG) contains no authorization to restrict access to the file rights.
The petitioner has appealed to our argument in the administrative procedure. Subsequently, the Senate has granted the insight. Here, the Senate Administration has initially emphasized to provide the insight without acknowledging any liability. The process was finally declared as completed. Following the Senate Department informed us that the accuracy of her originally represented legal opinion was doubtful indeed.
8.3.1 language support Regulation
The Senate Department for Education, Youth and Science has presented us a draft Sprachförderverordnung181. The Regulation lays down the procedure of language skills assessment and the pre-school language support after Schulgesetz.182 By binding preschool language promotion is "non-Kita-children" are made possible with language needs to acquire the information necessary for the successful school participation German language skills. Privacy Legal Matters in particular the procedure for the determination of affected children.
The education authority of the district receives the financial data of the affected children to ask their parents to be carried out the language skills assessment for their child. Since this only comes to the "Non-Kita-children", a reconciliation of the Office of Education reported children done to those children who are already attending a day care center. As a Kindertageseinrichtung visiting children are registered in the IT Fachverfahren183 berlin widely employed in youth welfare, an adjustment is made using the enclosed data. In this way, the data of those children are only filtered out, still do not attend day care center. We have indicated to the Senate argued that although they provide the special IT process for the youth services available, the sovereignty of recognized there social data of the children and their families, however, rests solely with the youth welfare office of the respective district office. The Senate is working on behalf of the districts that continue to remain responsible for the data of the "Kita-children". Also as part of the pre-school language support, it is necessary to take account of the county jurisdiction over the data stored in ISBJ process. A comparison of the data of the children has to be made between the district's Office of Education and the district's Youth Welfare Office. Technically, the balance on the central IT processes is performed. We have suggested to bring this in the text of the Regulation. However, the Senate did not follow our suggestion. With the meantime entered into force language support Regulation, a formulation has been chosen, which is misleading in reference to a corresponding provision in Schulgesetz184.
8.3.2 surrender of language learning diary in schools
The language learning diary we are involved ever since the introduction in of 2006. Recently we reported on the concern of the Education Senator, a disclosure of learning documentation as part of the language learning diary to the elementary schools to ermöglichen.185 between the Senate Department for Education, Youth and Science, and our authority, a process was agreed that the now on the basis of consent parents sharing the learning documentation allowed to the primary schools.
We have always made it clear that we can not support the first favored by the Senate process a contradiction opportunity for the parents prior to the dissemination of the learning documentation. Rather, it requires an explicit consent of the parents. Fortunately, the Senate has thus developed a corresponding method which encounters no privacy concerns more.
The school year 2014/15 for the first time practiced method can be summarized as follows: The parents will be submitted shortly before the transition into primary school by the day care center, a consent form, which they informed about the educational benefits of passing the learning documentation and in which they are asked to to give their consent to the transmission to the primary school. Is the future primary school the child is not yet known, the learning documentation is first placed closed to the relevant education authority. Parents also will be given the opportunity to consent to withdraw at a specified time of the day care center. At the start of the 2nd half of the school year, the first class, the school reaches the documents back to the parents.
8.3.3 student photos on the school website - for ever and ever?
One student had signed an informed consent form during his schooldays opposite the school. This he agreed to that group photos of excursions / projects in which he is ready to (co-) may be published on the school website. After leaving school, he revoked his consent and demanded that the photos in which he is ready to (co-), are removed from the school website and permanently deleted from all storage media. The school refused on the grounds that the Einwilligung186 had been given effect after the Data Protection Law and can not be revoked without good cause. In addition, the students had mostly not displaying its full form and so can not be seen.
For photos in which people are ready, it is basically personal data within the meaning of Datenschutzrechts.187 This applies regardless of whether it is an individual or group image. It is irrelevant whether the person depicted in full figure, only partially (z. B. Rear View) or in conjunction with other information (eg. B. Name in the image caption) is displayed. What matters is whether the person in the photo by another viewer as precisely this and no other person (re) can be detected. Even if the person in the photo only partial regions (z. B. blurry contours) are displayed, they can be detected when the viewer can be deduced from the context that it can only be a certain group of people (eg . B. if available in the caption: "excursion to Schwerin from 21.12.2012, participants: 13th year, Leistungskurs Political World Customer"). The personal reference can possibly be produced without great expenditure of time when modern search engines and image recognition software are used. Only when the risk that the person depicted can be identified, is so low that it seems almost irrelevant, missing the decisive personal reference. Each school has to the question of whether a student photo reveals the students clearly consider for each photo.
When the school received such photos given to third parties, it processes personal data of the student. Such data transmission occurs when outsiders the photos, which are hosted on the server of the school, retrieve, so they can make the photos on its screen visible.
The school must personally identifiable information from students but only processed if this is necessary for fulfilling their schoolwork or there is a consent of the student.
It is for the fulfillment of the schoolwork, however, not necessary that the school their website with photos, to report more "alive" on excursions. Therefore, the publication of the photos is only allowed as long as the student has consented herein. If he has given consent, he may revoke it for the future. This can be done even without cause. Because here, it does not -. Such as in a printed textbook - it indicates that the photos have already been published in the past and therefore already "in the world" are. It is crucial that the school may no longer willing to keep on the server the photos for future releases.
The former student had from the date of revocation, a claim that the school those photos deletes from the homepage and from any storage media, on which he could be recognized by other people.
8.4.1 Amendment to the Federal Archives Act
In 2011 we have a need for amendment of the Provincial Archives Act contends gemacht.189 Changed legal, social and technical aspects make a recasting of the data protection provisions of the law required. It is gratifying that the Senate Chancellery - Cultural Affairs - has now worked out a bill.
We were involved in the design stage and have already been able to bring amendments in advance of the legislative process. It is to be welcomed for the content, that the bill to harmonize regulations with the Berlin Freedom of Information Act (IFG) provides to the currently existing contradiction between the archive and the freedom of information law with regard to the freely accessible after IFG acts of administration, after submission must be kept at the archive due to the legal archive embargoes currently secret, to be able to resolve. The receptacle provided a possibility to shorten the deadlines for protecting persons of contemporary history, thus facilitating research we assess positively. Since a reduction of the terms of protection only comes into consideration if the legitimate interests of those concerned are duly taken into account in deciding and thus weigh up the conflicting fundamental rights to freedom of information and privacy of personal data takes place, the data protection concerns are adequately accounted for. With regard to the use of sensitive documents which are subject to Schweigepflicht190 such. As patient records, 191 harmonization with the Federal Archives Act was made. It is now ensured that the use may be restricted or denied, even after expiry of the confidentiality obligation, to the extent necessary to safeguard legitimate specific concerns of interested parties. We recommend that the legislators continue to make in the face of scientific interest in the research with patient records an adjustment of the State Hospital Act to create a corresponding obligation to offer the (also privately organized) hospitals.
8.4.2 Volunteering Library employees and RFID technology
For several years, we report on the widespread introduction
RFID technology in public Bibliotheken.193 Using this technique, also the illegal Berlin-wide access of employees in volunteer-run libraries on the user data in a computer network of the network of public libraries of Berlin (VÖBB) should be excluded. Accounting operations should be carried out in these libraries exclusively using SelfCheck systems.
Since this year is on the run by volunteers Thomas Dehler library in Schöneberg the SelfCheck machine including debit cards function. The access of employees to the loan booking system has been excluded in the meantime in this library. There can be no library cards issued or renewed there though, but the users and users can do this in any other library in Berlin. Previous cash payments be replaced by EC-card payments. Moreover, the lending and return of media is still possible as usual using the SelfCheck machines. For the library-using only minor restrictions are acceptable. The employees can concentrate instead on administrative activities on the substantive advice and support of the using. Also in co purely volunteer-run Kurt Tucholsky library in Pankow194 is now the EC-card function. By the end of 2014, the conversion to a privacy-compliant situation should occur.
Possible solutions to maintain the volunteer-run libraries worden.195 his time intensively discussed considering its educational significance between all stakeholders As a result, associated with the introduction of RFID technology technical solution from VÖBB was favored and implemented. In the public, but also in the districts, this solution is evidently asked occasionally questioned. Under the current legal situation, a Berlin-wide access of volunteers to the data of the using is not permitted and therefore auszuschließen.196 In what way the legal requirements to be implemented, the parties decide.
