GFF files constitutional complaint against superfluous and dangerous transmission of census test run reporting data
On January 13, 2019, the Federal Government contrived to create a centralized data file of all people in Germany as part of a test run for the 2021 census. Never before have such extensive data records been made accessible in a central database. Such an extensive collection of “reporting” data is not necessary in order to carry out a test run. Moreover, it is dangerous.
On February 7, GFF, together with the Census Working Group, announced it would file a constitutional complaint against the mass transmission of reporting data (i.e., personal information reported by individual citizens in response to government inquiry) as part of a test run for the 2021 census. The complaint follows the refusal of the Federal Constitutional Court to halt the test in response to an emergency appeal by GFF.
The emergency appeal and the constitutional complaint are both directed against the Amending Act to the Census Preparation Act 2021.
This law, which was passed by the Bundestag in a fast-track procedure, provides for a large-scale test run for the 2021 census in which the reporting data of all citizens is to be made available to the Federal Statistical Office within four weeks of January 13, 2019. This test run is intended to validate the method of transmission and the quality of the data. It is completely unnecessary, however, in the extremely broad form envisaged. In fact, the test run creates through the back door an unprecedentedly extensive database of all citizens.
As part of the test run, an entire catalogue of data, some of it extremely sensitive, for example information such as name, gender identity, marital status or religious affiliation, was transmitted within the space of four weeks following January 13, 2019. The data were not anonymized or pseudonymized. With the help of so-called order characteristics, relationships between individual persons can be inferred and deduced. These data were transmitted by the registration offices to the statistical offices of the Länder and can be called up centrally by the Federal Statistical Office.
Violation of data protection fundamental right
The GFF regards this procedure as a violation of the “fundamental right to data protection”, otherwise stated, the right to informational self-determination. This right was established by the Federal Constitutional Court in its 1983 census judgment. The court set clear limits for the state with respect to the collection and utilization of the data of its citizens.
In particular, data should be anonymized to the extent possible. This would have been perfectly sufficient for purposes of the current test. Instead of transmitting the actual reported data of up to 82 million people, the authorities could have used fictitious data to test the transmission of a large volume of data. Moreover, a small sample have from the real data would have sufficed to test the quality of the data.
The reported data collected by the State may only be used for absolutely necessary purposes, including to conduct censuses. The test run envisaged clearly exceeds this limit. The purpose of testing software for the 2021 census is disproportionate to the risk of personal data being misused by third parties. An emergency application was necessary to avert this risk to the data of over 82 million citizens.
Need for action misjudged
The Federal Constitutional Court rejected GFF’s urgent application at the beginning of February and thus failed to recognize the urgent need for action to ensure the protection of the data. The Court conceded that the requirement to anonymize real data that is transmitted and stored lacks clarification in the law. Nevertheless, after weighing the consequences, the Federal Constitutional Court refused to halt the test run.
The reasoning of the Court: Irreparable harm to citizens occurs only when the data is retrieved, not by the storage of the data. Nor, according to the Court, is there any risk of data misuse, since the law sufficiently specifies the purposes for which the data may be used. In addition, the Court found that suspending the test run would jeopardize the smooth running of the 2021 census itself.
GFF takes a different view. Even the storage of sensitive, non-anonymized data of all German citizens on a central server represents a considerable and irreversible risk of harm. In addition, the law does indeed offer scope for abuse. Because of the unspecific wording of the law, for example, there could be a variety of uses for the data over the long term, and it is unclear who has access to what data for what purposes.
The Federal Constitutional Court also overlooked the data protection principles of data minimization and data decentralization.
In spite of its ruling, the Federal Constitutional Court also declared that a constitutional complaint was not manifestly outside its purview or unfounded. We see this as a call to continue to fight against this unconstitutional regulation and to fight for data security.
GFF against government data collection
GFF defends fundamental human rights, in particular against state interference. Not only would the planned central database be a potential target for hacker attacks, there is the further danger that, in addition to the Federal Statistical Office, other authorities may want to claim an interest in gaining access to this data. This step towards a surveillance state must therefore be prevented from the outset.
- You can find the motion written by attorney Benjamin Derin here (in German).
Here you will find our current press release (in German).
Further press releases:
- GFF files urgent application to the Federal Constitutional Court against superfluous and dangerous transmission of reporting data for census test run (10.01.2019) (in German)
Here you will find the press review (in German).