 Okay, unser nächster Talk wird von Ulrich Kerner gehalten, ein Anwalt, der vor allem Ulrich Kerner, ein Lawyer, und auch Unternehmen berät besonders in Fragen des Herzrechts- und Unterwürfelsträger, auch einer der Klageführer, richtig? Komal mit Law an Tucson, und so ist er auch selbst korrigiert, in Zwingen gegen den Heckerparagraph Hecker-Klaus der deutschen Kriminellau, und das ist natürlich besonders wichtig, in der Zeit der Wisselblasen, also der Talk, also der Präsentat für Wisselblasen und Applaus für Ulrich Kerner. Hallo zusammen. Hallo, everybody. Es geht um die Klaus des Data-Sales, und es geht um Publikationen in Journalen, Lawyer-Journalen, und so Prof. Ulrich Stockenberg von der Universität von Bonn war über dieses neue Paragraph über Data-Sales, die illegalen Data-Sales. Das heißt, es gibt clear words über das, was die Legislatur tatsächlich gemacht hat, und wir sehen, wie es tatsächlich funktioniert und wie die Kriminellau-Legislation tatsächlich funktioniert, wie die Kulten sind und was sie erreichen sollen. Wir müssen schauen, was unsere Drisprudenz eigentlich möchte, um zu protekten. Wie die Legislatur, dann schauen wir, was die Legislatur in § 2 und 2d sieht. Dann gehen wir in die Details der Law, der actuale Offense, was in das included. Und so wir schauen den Kritik und dann schauen wir an den Konstitutionen, die gegen das geschaffen haben. Wenn wir von Strafgesetzgebung sprechen, vielleicht zum Einstieg, für meine Gesetzgebung, für meine Gesetzgebung, dann wer glaubt, dass die Legislatur in § 2 ist, dass sie nicht verabschiedet sind. Ich möchte kurz eine Anecke darauf stellen, dass es so ist, dass es normalerweise keine verabschiedeten Argumente gibt. Es war so, dass es eine federale Reform war, zwischen den States über Kompetenzen und auch über die Legislatur. Und zu den States gab es die Legislatur über die Federung der Assembly und die Legislatur gegen die Präsentation. Also waren es Ansteigungsleiter und Ansteigungsleiter in der Association über die Verabschiedung gegen die EU und sie verabschiedeten sie. Aber jetzt sind es zwischen den States und der Federung. Sie haben von Swiss ein Strafgefühl verabschiedet. In Zwitschland gibt es sehr schwierige Probleme, wenn ein Präsentator von einem Kanton in Deutschland verabschiedet ist. Aber die Legislatur hat eine Verabschiedung. Die Legislatur hat eine Verabschiedung. Die Legislatur hat eine Verabschiedung. Sie haben eine Verabschiedung. Sie haben einen Verabschiedung. Die Legislatur hat eine Verabschiedung. bei den Regierenden, und also, wenn du siehst, was eigentlich nach dieser Attacke kam, und was die Regierenden alle wussten und was sie eigentlich nicht gemacht haben, obwohl sie eigentlich ein paar Dinge wissen. Und ja, wenn du es nicht benutzen kannst, dann schiesst du. Und dann, du weißt nicht, dass ich ihn eine Schaum habe, weil er nicht wirklich was erhöht. So, die Regierende ist da, um die legalen Rechts und andere Dinge zu protectieren. Und also, es ist die Stiftung der Regierenden, die Regierende, und ja, die Regierende ist eigentlich das letzte Instrument, das das Regierende später hat, und das soll sie benutzen. So, basically, Negagens in Body-Harm. Das ist wie ein einfaches Beispiel. Wie wenn du, wenn du mit deinem Auto, wenn du nicht ein Chancen payst, und du du have to pay damages, or when you hit a pedestrian. If he has hurt, if I'm negligently hit someone, I'm criminally liable. So, the legislator decided that negligently Damagung von jemandem ist nur libel und der Civil Law für Damage, aber nicht für Imprisonment. Und das ist eine legislative Decision. Und so, es war ein bisschen anders, aber es war für gute Gründe geändert. Und eine gute Foundation für das ist, weil Kriminalität kann nur, kann nur auf ein paar Fälle kommen, weil sonst alles, was wir hier akkuliert haben, ist panischbar, aber auch... Das ist was wir heute sehen. Und da sind viele Gründe für kleine, kleine legalen Gäste und für eine lange Zeit in den deutschen Diskursen. Wir hatten die Prämisse, dass Schutz von legaler Kriminalität immer Gäste gibt. Aber jetzt, week by week, gibt es noch neue Kriminaloffenzen, um die individuelle Sicherheit zu entschliessen. Das ist die Fokus auf individuelle Sicherheit. Und wenn wir schauen, wie das in Deutschland kommt, was unter Threat ist, dann werden viele mehr Menschen by Trafic-Accidents getötet. Und in Europa, du findest hardly anyone who can understand why there is no speed limit in German motorways. If we reduce motorway speeds to 110 km per second, death rates would fall significantly. So the question is why in one area should be tightened ever more, while in another area where the danger is very concrete, the threat is simply ignored. I will now very shortly show you two examples about criminal legislation before and yesterday and now. So here, bodily harm, if you abuse another person or damage their health, you are threatened by punishment for up to five years prison or fine. So the question is what is bodily harm, what is health damage, this has not been delineated by law, but you can kind of gather what you can and cannot do. That is no longer possible with modern laws. This is a kind of mean example, this paragraph 83 of the law about stock dealing. In every second row there is a reference to some other point in the same law. This is about emitting certificates and various EU regulations telling the reader that if you violate those, you will be punishable as well. So it is simply impossible if you don't know this beforehand to just sit down, read and then be able to summarize what kind of threats there are, what kind of crimes there are. And the reason why I chose this, this is the only example known to me where fake news actually is a crime and that is in the area of dealing with stocks. Okay, now criminal law is there to take legal goods and of those there are individual ones such as life, health, property. Of course, there is also the state and its institutions. We also have a protection from the law for information. I'll skip a page now. Those are states and professional secrets, private secrets, intellectual property is affected as well. There are several crimes, several offenses, patent law, trademark law, intellectual property. The patent law I have, there is just an example. And then there is personal data in the data protection law. And in paragraph 3, section 1 of the data protection law, there is a definition of what personal data actually is and that these are individual items of information about the personal details, personal effects of an individual person or someone that can be identified. So, this is a protection. It's quite well defined what kind of content is being protected. And we also have protections regarding well, it's kind of a form of kind of protection. These are offenses in terms of IT law, three paragraphs in the penal code, one of them the so-called hacker paragraph. These are crimes that do not relate to the content of the information, but they are further restricted. You have to have certain access measures that are being circumvented. Right. And that slowly leads us to paragraph 202D in the criminal code, just to briefly give you an overview of computer and information criminal law. This was ultimately introduced always to implement EU-Direktives. Now, the new offense of data fencing, dealing with telecommunications, telequation for retention data, is independent of any EU legislation. This came through a draft that was introduced by the Federal State of Hesse. This was a so-called discontinuity. There were new elections, so it was reintroduced. And what we have today is based on a draft of the federal government. The reasoning for that legislation was fairly diffused. It talked about huge gaps in protection from criminal law or by criminal law. It was about dealing with identity from the internet or on the internet. That was to be put under punishment, stealing identities or copying them, things like that. That's all forbidden to use them. For example, credit card data. That also is an offense. Using and passing it on through the often coded dark net. So, there was a sense that there were sensitive gaps in criminal law protection. The first draft talked about, in particular talked about culprits that had political aims, by the way. Now, what exactly is in the new rules? Let's just briefly look at the offense. At first, I would like to talk about paragraph 3. That contains regulations about when the first paragraph, the actual deed, is not punchable. So, we have to skip to section 2. It says paragraph 1 does not apply to actions that are only related to fulfill professional duties, in particular, if the state would buy tax CDs, one. And those professional actions that in paragraph 53, section 1, sentence 1 of the criminal court procedural, are mentioned. And those are number 5 people that are involved in producing or distributing printed works, radio, broadcasts, spreading information, opinions in a professional role. In other words, in this criminal offense, we have a privilege for the media. And we will soon see how this privilege for the media is in no way enough to have a satisfactory result of this malfunction of the legislation that we are seeing. So, what is the actual object of the criminal deed? This was in the previous slide briefly all non-tangible, stored data that is not generally accessible without any further restriction. So, credit card numbers are involved. But if it's noted on a piece of paper, that is not covered by this law because that is tangible. Another precondition is that the data must have been obtained through an illegal act. That can be, for example, person A loses a USB-Stick, person B sees that, takes it and sees that there is data on it. So, and by taking that USB-Stick, the person kind of steals the data. So, this is the precondition for data fencing. So, if someone would find data and look at it and find it interesting and think, well, that has to be published, everyone is affected, then that is actually in that illegal area. So, the fact is that the actual deed is if you obtain this data and then distribute it or pass it on to someone else to enrich oneself or a third party or to damage someone else. So, that is a very broad criminal offense. The Reichskot already decided that, no, sorry, I forgot. So, this is a very subjective act. It's an overreaching offense in terms of legal science and in the area of personal wealth. If I would sell on a USB-Stick, that was worth 10 Euro and someone would then find a family recipe for an Apple Cake on that. So, basically would buy that recipe, then that would be a criminal offense. So, that very briefly is the explanation of what is being put under criminal jurisdiction here and we'll have to now look at criticisms of this new law. There was a lot of criticism on the way the legislation was handled, on the actual legal good that was being protected, the link to the offense of fencing, on the insufficient restriction of the actual criminal act and the lack of protection for those who should enjoy special privileges here, including lawyers, for example. People that deal with information or get in touch with information on a regular basis where criticizing problems in society is involved. Also things that are checked by a specialist, have to be checked by a specialist or people that are specialists for checking whether they are published or not. So, that's the core of the criminal act, whistleblowing and publishing previously unknown but urgently necessary information for the public that is being impeded by this new law. So, I'll go through the different items. There was negative criticism as the law was being drafted, the German Association of Lawyers on 21 May 2015. This law that I'm talking about here was passed together with telecommunications data retention and the first thing that was conspicuous was that there was a hidden place kind of combination with this new paragraph. The German Association for Lawyers continued saying that this new criminal act would also hit journalists in their everyday work if they would have access to data from authorities, administrations and such. They would in principle make themselves punishable. As far as the process of legislation itself was concerned, I just explained how the expert hearing concerning the question of criminal enforcement, law enforcement, the expert hearing was simply cancelled and that was criticized. The Association for German Lawyers criticized that at this stage of the legislative process, the state doesn't seem to want to involve experts. There was no request for comments, although this was a very sensible area of the law that was being worked on here. Dann habe ich vorhin ein bisschen Ausführungen gemacht, um einstiegen zu bekommen. Then I started by talking about the goods that are being protected by criminal law. So we have criminal laws that actually try to protect data, but without looking at the content actually. And there's a formal data secret, more or less that normally the legal jurisdiction actually doesn't know. So if I cite this professor that I mentioned in the beginning, Stockheimer, this supposed legal right that they want to protect is actually only present in criminal law. This is kind of a weird creature, which is supposed to exist in the pen of the content and tries to define information as something as the real that has to be protected. So this is kind of a questionable legal right, as we call it before legal good, that's not known in this jurisdiction really. And then it's maybe more like a dogmatic or legal formalistic critique that it was talked about data fencing, because that's normally only used for actually tangible goods. And actually I want to get this back if it was stolen from me. If it was like, if it's like passed on or sold again by fences. So it gets harder for me to get it back. But however, if data are copied, then I still have them. I can still use them in the way I did before. But they might not be exclusive to me, but if someone sells them on, it doesn't really mean that it's harder for me to get them back, because I can't really get them back. And I actually don't lose them normally. So this actually doesn't apply. Then the definition of what this criminal deed in the paragraph actually defines is way too broad. And this legal offense is way too broad, but also quite weirdly defined, because normally these offenses are much more narrowly defined, and that's actually also called for by the experts. So that, for example, the offender should maybe subvert protection measures, specific protection measures and so on. And here it's like very broad. So very important for me and for all journalists and all people that are actually glad if things get put in the spotlight that go wrong, they especially criticize that in paragraph 3 where journalists and other persons that have to keep secrets because of their job are not actually exempted from the legally defined offense. Aber was ist mit den vielen Bloggern, was ist mit Journalisten oder Medien? Especally like bloggers, journalists that work part-time or like in their free-time, because they want to work for justice, because they are engaged in their community. They are not protected by these exceptions. Es sind auch nicht zwangsläufig zumindest Handlungen geschützt, also nicht necessarily actions protected that are present in the, like before the actual publications, if it doesn't actually result in a publication. And so if you look at the persons that keep secrets as part of their job, then in 184b of the criminal law there's a similar offense defined in a very uncomfortable era here because it's like the sexual criminal law about child pornography and so on. And of course if you own it, then you're criminally liable. But of course if you're a lawyer, you have to be able to take a look at this without actually making yourself criminally liable. And so recently there was a case where a lawyer passed this to an expert for a consultation. And for this passing on to the expert to get this consultation, this lawyer was actually convicted. Also mentioned in this other paragraph because it's not actually mentioned there and it's not clear whether someone lawyer does actually still falls under this or not. It's not really clear. So there is actually the risk of criminal persecution for lawyers or journalists and media persons or other persons that come in contact with leaked information and that's just not acceptable. It's not acceptable because the revelation of these informations is actually very important today, much more important than ever before. If we think about it, Edward Snowden wouldn't have done his revelation, his steps towards revealing the information, then our world would be a different one today. And we could also look towards the Luxemburg Leaks or Luxemburg made it possible for companies to don't pay any company taxes maybe only 1%, in which was a huge loss for all European taxpayers and all other European countries. And so in principle at least the other countries could have done a lot of good with that, which is also their job normally. In diesem Zuge 2 Personen dieses Jahr zu Haftstrafen, und actually 2 Personen in this case were convicted in this case because we were leaking this information and this is really not acceptable in a democratic jurisdiction and not only for us but also for the generation of our children. For that reason the deadline that expired on the 18th of December 2016, that was a Sunday, so it actually was moved to the next Monday, so that deadline was used to hand in several complaints at the Constitutional Court. I myself have been one of the complainants, have handed in a complaint because I think that in a way that valid Constitutional law I have been restricted in my professional duties. I know that the only complaint that has been handed in there is at least one more of which we will hear a lot, I think. Just wait two or three more weeks. I think I can't say any more about that. So this will be hopefully negotiated at the Federal Constitutional Court. Not all complaints will be accepted, as we know, but there was one that referred to this Hacker Paragraph, that was not accepted, but at least the Constitutional Court said that the Criminal Act defined in the new law would have to be interpreted in a restrictive way. That is something. So, two complaints, let's wait what the court will say. And I am glad that the importance of this issue is recognized in the public. Also concerning passing information that is normally held controlled. And I hope that people will see that this is a real threat to press freedom and for professional freedom. Thank you very much. Okay, I have time for perhaps one question. Okay, we have no questions. Sometimes you just have to do politics in order to write code. So, thanks a lot for the complaint. And we hope that there will be a good outcome from this. Thank you. There is a question in the audience. Okay. From the Internet. Why does the USB-Stick that is not being returned without intention to enrich oneself? Why does that fulfill the Criminal Act of fencing? Okay, well, I did say that not returning the USB-Stick, a non-returned storage medium, that so far that holds data that so far was not publicly accessible is actually a precursor to the actual criminal deed. We'll have to look at the definition again. It says, there is a reference to 202a, which is a legal definition of data. So data that is not generally accessible and that someone else has obtained through an illegal act. That was my example. The found USB-Stick, I see that someone has lost it. I take it and I find data on it that is not generally accessible. And it could be that someone says, every morning at eight, I look out of the window and take a note of what the sky looks like. Cloudy, clear, whatever. So that would be data that is not generally accessible. Others may do the same thing. And those data are also not generally accessible. Now, these data would be obtained through an illegal act. So if someone lost it, someone else finds it and doesn't return it. So that in a way is the precursor, the precondition to continue in this legal argument. So if I now say, I have very clear notes about the weather, how it was yesterday. So you can, why don't you buy this from me for five euros? Then we are fully in the definition. All right, the internet is grateful. All right.