The BigBrotherAward 2020 in the “Authorities & Administration” Category goes to

the Interior Minister of the Federal State of Brandenburg, Michael Stübgen, and his predecessor Karl-Heinz Schröter

for permanently storing vehicle number plates.

In Brandenburg, details on more than 40 million vehicles have been permanently stored for many years in the computer system for automatic number plate recognition, which is called “KESY”.

We only learned this through sheer coincidence. How did that come about?

In February 2019, a young girl from Berlin called Rebecca went missing, and she has not been found to this day. The nationwide reporting on this case brought to light a juicy detail of Brandenburg police practices: Police officers from Berlin reported quite frankly about the automatic checkpoints for vehicle number plates on the A12 motorway, which runs from the capital through Brandenburg towards Poland. There, the car of Rebecca’s brother-in-law, who was initially a suspect in this case, was registered by the KESY number plate recognition system immediately after the time of the crime.

However, the actual investigation only began much later, and data on this car was retrieved from KESY as part of that investigation. The brother-in-law’s car was found in the records. And the police in Berlin presented the fact that the vehicle was registered shortly after the crime as an important finding.

Much to the regret of police colleagues from neighbouring Brandenburg. Because the investigators there were not at all enthusiastic about the talkativeness of their Berlin colleagues. Attentive observers quickly wondered how it is possible that the passage of a car was registered and stored before it was even advertised for search. It soon became clear that the Brandenburg system stores and retains its data on number plates of all vehicles that have passed through in a very extensive way (and possibly for a very long time) without any concrete reason. 40 million data records, from which movement profiles can be deduced, were stored in reserve. A data retention for movement data of cars.

However, this is not permitted:

Paragraph 36a of the Brandenburg Police Act regulates “searches by automatic licence plate recognition for specific occasions”. As the title already says, this should not be a permanent surveillance, but related to “specific occasions” – i.e. only if Police are actually looking for someone who could be found with this method. This is probably how the Federal Constitutional Court read it when it praised the Brandenburg regulation as exemplary in its ruling on automatic number plate recognition1.

But the reality is different, unfortunately.

It has been known for some time that the implementation of the law in Brandenburg is dubious. As early as 2015, the state commissioner for data protection in Brandenburg stated in her annual report that the devices are not operated in “search mode” – as the law mandates – but in “recording mode”. This means that instead of immediately comparing each recognised number plate against a wanted list and then deleting it, in Brandenburg each number plate captured by the device is stored on a central server with time stamp, location and direction of travel. The police have thus been able to create a slowly growing movement profile of vehicles that regularly drive on the A12, e.g. to work and back.

In order to circumvent the limitation of purpose that is stipulated for KESY in the Brandenburg police law, those responsible have come up with a special trick: They made sure that there was always a judicial order against some person that provided justification for such surveillance. In doing so, they used paragraphs of the Code of Criminal Procedure, which by their very nature are only directed against specific suspects – extensive data retention is by no means permitted. Nevertheless, the police in Brandenburg interpreted this as a justification to simply keep all data permanently. Judges dealing with preliminary investigations have therefore issued orders effecting in comprehensive surveillance, probably without questioning how this is actually implemented. Because otherwise they would have had to suspect much earlier that such measures could not be implemented without comprehensive data retention.

The police are apparently not interested in deletion deadlines, so that by the beginning of 2020, some 40 million data records had accumulated. “Surely you can use everything somehow at some point.”

And that was not all: as it turned out, an unfathomable number of government employees also had access to the stored data.

Right from the start, KESY was sold to the public as an indispensable tool in the fight against crime (and terrorism – of course!). The police tried to placate the critics by arguing that the devices only sound the alarm when a car matches an entry on the wanted list.

It is completely incomprehensible why the Brandenburg data protection authority did not pull the emergency brake much earlier, even though it had already noticed in 2015 that the devices were running in recording mode practically all the time.

At least the data protection commissioner did check at all. Surprisingly, however, she then found in her “partial examination under data protection law” of 28 July 2016 that the legal regulation (§ 36a BbgPolG) was sufficiently defined, clear in standards and proportionate, did not suffer from a lack of necessity and “the current implementation practice of preventive identification searches complies with data protection law”. Does it now …

When political pressure from the opposition increased after the extensive data retention became known, the data protection commissioner back-pedaled, issued an objection2 and instructed the police to ensure more data protection. As a consequence, the number of people authorised to access the “live data” was reduced from more than 50 to less than 20, and the old stored data was to be deleted – if it was not still needed.

In any case, the industrious data capture and storage continues.3

The Constitutional Court of Brandenburg is expected to decide how to proceed with KESY and the retention of data for number plates. There, a motorist (Marko Tittel of the German Pirate Party) is suing against the recording mode, while the Interior Minister and current BigBrotherAward winner Michael Stübgen reproaches critics by saying that a change in practice “would only please criminals”.4

You are wrong, dear Mr Stübgen: we would be very pleased if our fundamental rights were respected in Brandenburg, too, and all people who use the A12 motorway from time to time would certainly be pleased as well.

Our congratulations on the BigBrotherAward 2020 go to Brandenburg, to the acting Interior Minister Michael Stübgen and the former Interior Minister Karl-Heinz Schröter.

Further sources:

https://www.main-echo.de/regional/franken-bayern/Warum-sich-ein-Unterfranke-mit-dem-Bundesland-Brandenburg-zofft;art11994,6729037

https://netzpolitik.org/2019/brandenburg-spitzenbeamter-fordert-stopp-der-kennzeichenerfassung-und-wird-versetzt/#III_Anwendung-Brandenburgisches-Polizeigesetz

1 Bundesverfassungsgericht (German Federal Constitutional Court) on automatic number plate registration 1 BvR 2074/05, Rn. 183

2 heise.de, 7 January 2020, by Stefan Krempl: “Datenschützerin beanstandet Kennzeichenfahndung ...”

3 https://www.pnn.de/brandenburg/automatische-kennzeichenerfassung-kesy-soll-noch-nicht-beendet-werden/25457402.html

4 https://www.pnn.de/brandenburg/kennzeichenerfassung-in-brandenburg-innen...

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