Laudator: Frank Rosengart
The BigBrotherAward in the category Politics goes to the
of the 16 German Federal States
for establishing the Joint Licence Fee Service of [Germany’s public broadcasters] ARD, ZDF and Deutschlandradio (Gemeinsamer Beitragsservice von ARD, ZDF und Deutschlandradio) and the ensuing massive collection of personal data of the whole German population.
The former fee collection service, GEZ (Gebühreneinzugszentrale, Fee Collecting Centre) received the BigBrotherAward in 2003 in the Lifetime Achievement category. One proposition in the laudation at the time was that the TV and radio licence fees should be reorganised so as to be collected per household and not per set. In an age when even a digital picture frame can count as a “novel receiving device”, the abolition of a device-based licence fee seemed more than overdue. As of 1 January 2013, the old GEZ has indeed been abolished or rather replaced, and its successor is called Licence Fee Service of ARD, ZDF and Deutschlandradio.
Together with the new name, the institution also wanted to appear in a new light: The name GEZ had been poisoned through their “fee collecting agents”, who very much in a Stasi manner (Staatssicherheit, the former secret police of the German Democratic Republic) made unannounced visits to households, trying to ferret out the number of TV or radio sets in the flat; they even dug their way through dustbins in the hopes of finding discarded TV magazines. The GEZ was one huge data leech who is even said to have bought address data from lotteries in order to identify fee dodgers. A nationwide shadow population register was established, and practically every living soul was registered with the GEZ.
From 2013 on, this was supposed to change. With a hew household-based licence fee, so it was hoped, all this would no longer be necessary. No more data collecting, no more visits to private homes.
But the reality is quite a different story, As before, it is not the households but the fee payers that are in the focus of investigation. The Inter-State Agreement on Media Services (Rundfunkstaatsvertrag) says that as before, every time a person changes address within Germany, data will be transferred from the registration authority to the Licence Fee Service. In this process, not only the necessary data will be shared but just about everything the population registers yield, including former addresses, evidence on social circumstances etc. From 2015 on the Licence Fee Service will even be allowed again to buy data from private sources, such as address mongers, insurance companies, debt collecting agencies, lotteries or the mail redirection addresses stored with Deutsche Post AG.
In addition, a one-off snapshot of every resident of the Federal Republic of Germany is being arranged. All registration data have been “frozen” on 3 March 2013, and will piece-wise be forwarded to the Licence Fee Service within the next two years. After a person’s obligation to pay a licence fee has been successfully established, these data are supposed to be deleted from the databases. But the Inter-State Agreement grants the Licence Fee Service a retention period until the end of 2015.
Further to this, the Licence Fee Service has been allowed to take over the complete database of its predecessor GEZ. So in the end the Licence Fee Service has three times as many records as before: The old inventory from the GEZ, the new registry snapshot of 3 March, and the regular updates on all address changes. And further data can be bought on the free market.
“Simple. For all”, this is the advertising slogan for the new licence fee. One home, one fee. – But it isn’t really as simple as that. If for instance there are several people living in a flat, only one of them needs to pay. And the others? They need to tell the Licence Fee Service the reference number of the respective fee payer in order to avoid having to pay. So the Licence Fee Service not only registers every home, flat and apartment, but also who is living there, and with whom. The Licence Fee Service therefore knows as much about us as the proper authorities – or even more!
The quasi-Stasi fee collecting agents, by the way, will also continue working. They are now called “persons who investigate compliance with the prescriptions of the Inter-State Agreement”, and have been retrained: They now no longer search for secretly operated TV sets, but for new, non-registered apartment doors.
Those seeking information about the work of the Licence Fee Service or trying to file a complaint about them won’t find it easy to follow the data tracks, by the way. For not only the state-level public broadcasters (Landesrundfunkanstalten) but also the Licence Fee Service claim to be in charge of the data. This is unusual because according to the Inter-State Agreement it is the public broadcasters alone who are, in their respective regions, responsible for collecting and checking licence fees.
The authors of the Inter-State Agreement have thought of an especially cunning trick to protect the Licence Fee Service from possible attacks from affected citizens or data protection authorities: They declared the Licence Fee Service to be a “joint institution with no independent legal capacity” (nicht rechtsfähige Gemeinschaftseinrichtung); this means the Licence Fee Service isn’t a separate institution at all, but simply a subdivision of the broadcasting institutions. As a result of this, the broadcasters don’t need to commission the Licence Fee Service to process the data they have. The Licence Fee Service just goes ahead with the processing, for it is after all just a sub-department of all the broadcasters. Sounds harmless, but it is not. Due to this trick we are not looking at what §11 of the German Federal Data Protection Act (Bundesdatenschutzgesetz) calls “commissioned data processing” (Auftragsdatenverarbeitung) but at a case of internal data processing. This sounds like a lot of legalese hair splitting, but it is very important for determining who is in charge.
One might look at this another way: A “joint institution with no legal capacity” doesn’t officially exist at all, and therefore isn’t allowed to process data either. On the other hand, a clearly defined relationship would be necessary to ensure that the Licence Fee Service doesn’t develop a life all of its own, but performs all its data processing under the control of the broadcasters, as prescribed in the Inter-State Agreement. Such a relationship is also needed so that citizens and supervisory authorities can be clear who is their point of contact. For the time being, though, both the Licence Fee Service and the broadcasters claim responsibility for holding and processing the data, and thus create a state of utter confusion.
The administrative court of Berlin is currently deliberating on whether this constellation is actually admissible under the terms of the law.
The BigBrotherAwards jury is expressly committed to the idea that a democratic society needs an independent public broadcasting service that is financed by all citizens alike, no matter if they individually tune in to these public broadcasts or not. Unfortunately, though, our policy makers have missed the chance to introduce a new and truly data-minimising method of raising the necessary funds via the household-based fee.
Our heartfelt congratulations to the BigBrotherAward 2013, dear Minister-Presidents of the German Federal States.