GFF and its partners challenge anti-whistleblowing provision on handling „stolen“ data by Nora Markard.
From the post:
With an alliance of civil rights organizations and journalists, GFF is challenging the new Criminal Code provision on handling „stolen“ data. Passed by the grand coalition in 2015, this provision (s. 202d of the Criminal Code) criminalizes handling leaked data without providing for an adequate protection of the press. It thereby threatens an important part of the work of investigative journalists as well as their informants and supporting experts.
The facial challenge brought by GFF and its partners (PDF, in German) claims that the provision violates the freedom of the press and broadcasters, the equality clause, professional freedom and the clarity principle.
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The new provision criminalizes handling data which someone else had obtained illegally; the sentence is up to three years in prison or a fine (translation by Sebastian Golla):
(1) Whoever procures for himself or for another, supplies another, disseminates or makes otherwise available data (s. 202a(2)) that is not publicly accessible and that another has acquired through an unlawful act, with the intent of enriching himself or another or of harming another, shall be liable to imprisonment not exceeding three years or a fine.
In the legislator’s intention, the provision addresses the trade in stolen credit card and user data. Due to careless drafting, however, it also covers the procurement, transfer and dissemination of electronic data which were obtained by journalists from whistleblowers.
Working with information such as that revealed to the public by Edward Snowden in violation of US secrecy laws would therefore be illegal under German law.
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Governments are secretive creatures by nature and the German government is no exception to that rule.
Nora’s post is heavy on links to news coverage and those opposing this “accidental” sweeping up of whistleblowers.
Whatever the result under the particulars of German law, the better result would be a finding that publication, such as posting to Wikileaks or the dark web, breaks any chain of civil or criminal liability.
Once data has been posted to a public site, any re-publication of that data is protected as free speech.
It is easy enough to distinguish use of credit card data because that is a species of fraud and not an example of free (insert public) speech.
Re-publication creates a “bright-line,” one visible even to enthusiastic prosecutors and encourages leakers to leak for all and not the few.
Several recent leaks come to mind that were dribbled out for the benefit of the few.