Navigating the Legal Maze: Unraveling the Intricacies of Cell Phone Tracking Laws & Regulations
- What should I pay attention to in my private life?
- Authorities and cell phone tracking
Practically, the cell phone tracking today no limits. What was once reserved for the police is now also possible for purely private purposes. But also our authorities1 proceed with the Handyortung ever more loosely and take already small occasions, in order to accomplish a Handyortung or by purposeful mass localizations data to collect. The fact that this is not always in accordance with the law has been clarified in the past in various investigative hearings. Internationally, cell phone surveillance, including mail surveillance, is part of everyday life. No conversations, no e-mails that are not automatically intercepted. But we citizens keep asking ourselves how far we are allowed to go in the private sphere and, above all, how far the authorities are allowed to intervene in our privacy with cell phone tracking.
We have taken this as an opportunity to take a closer look at the individual legal provisions. Basically, anything is possible. Limits have not existed for a long time. Only the existing laws set limits. However, many actions are often in a gray area. A more comprehensive regulation will probably only emerge in the next few years. What is striking is that there are clear and distinct limits for use in the private sector, while the authorities can practically act arbitrarily.
What should I pay attention to in my private life?
New legal requirements for tracking, based on § 98 TKG
If a subscriber wishes to have another third party located, he or she requires express and separate consent in writing. A simple e-mail is not sufficient for this purpose. If cell phone tracking is performed in such cases, the affected party must be informed of this in each individual case. A text message to the person concerned is completely sufficient for this purpose. Previously, it was possible to object to the additional text message, but with the new regulation in 2012, an objection is no longer possible. This is to prevent the risk of abuse. However, the text message is not required if the call is a "self-located" call in which the subscriber has had his or her own cell phone tracked.
What happens if I have had a location tracked without permission?
In this case, a fine may be imposed according to Section 149 (1) (No. 17a/17b TKG)2. The amount is determined by the court differently from case to case. Therefore, if you cannot provide written consent, a fine procedure will be carried out.
In principle, it is therefore a secret location and surveillance is punishable. The situation is different if the cell phone was previously stolen. In this case, you may of course have a localization carried out at any time, provided that you have agreed on a corresponding service in advance. For example, you may only have your partner's cell phone located if she has given her prior consent. This is different for underage children. Here, only the consent of all legal guardians is required. Nevertheless, the child should be informed about the activation.
Authorities and cell phone tracking
The interior ministers of the individual federal states are demanding ever more and higher powers. Especially after the tracking and analysis paid off3 at the 2012 European Football Championship in the host countries. Interestingly, a federal state does not have to immediately comply with the current regulations. Here it can come in the individual to a limited toleration. The federal state can proceed thus for months with the localization according to its own discretion. In addition, each federal state has its own regulations. For example, a few months ago, the tracking of cell phones with license plate recognition was rigorously carried out in Potsdam.
There is also the possibility of permanent tracking, which individual authorities like to carry out in the case of missing persons. The so-called IMSI-Catchen. In the German state of Lower Saxony, even cell phone tracking is outsourced to an external service provider; here, control over the queries actually made and the purposes for which they are used is almost impossible. It recently became known through an inquiry in the Lower Saxony state parliament that it is not even possible to obtain precise information about the queries that have been made to date. Control has thus been completely lost. The extent to which the private service provider even has access to this sensitive data is not known to date.
Movement profiles and the Basic Law
In practical terms, tracking and the movement profiles created from it involve interference with the secrecy of telecommunications guaranteed for us (Article 10 of the Basic Law). But the legal basis as such has still not been clearly clarified. Although many responsible parties are already calling for a clear legal regulation, this will probably be a long time coming. The demands are simply too contradictory. While some demand a responsible approach, others would like to enforce a rather generous interpretation of the legal possibilities.
Consent is not necessary for tracking!
Basically, and almost all regulations in the different federal states are identical, the police and other authorized authorities may locate cell phones without consent. The police may thus locate any cell phone. As a rule, however, police sources say that this is only used in certain situations. For example, if a participant is suspected of having committed a crime or is missing. To be more precise, if a (suspected) criminal is to be identified or if it serves to avert danger. Nevertheless, the last point in particular is to be interpreted very broadly and creates room for very individual interpretations.
Judicial decision was yesterday
In addition, a so-called "Richterlicher Beschluss" is not required in either case. However, there are different regulations or further provisions depending on the federal state. Officially, however, police and customs are not allowed to create movement profiles. However, the truth sometimes looks different.
This means that the risk of misuse is still very high. Since the tracking is often done by means of a silent SMS (invisible to the recipient), the persons concerned are thus left in the dark and in many cases are also not informed, unless there is a further criminal prosecution. Persons who were thus innocently included remain forever in the dark.
The legal situation regarding cell phone tracking is clear and only allows the tracking of one's own smartphone as well as the tracking of persons who agree to it. The use of new tracking technology may therefore only be applied to persons who have granted a legal basis for authorization. If there is no such authorization and mobile tracking is still used, this may constitute an illegal act and lead to criminal prosecution. Tracking without permission may result in a fine, the amount of which varies.
When locating mobile devices, the located cell phone must also be informed by a text message, usually by SMS. However, the prerequisite for tracking remains the basic consent in accordance with § 98 TKG. Tracking without consent may only be carried out by the police; of course, this only applies in emergency situations or if there is a high suspicion of danger.
In the case of employee tracking, tracking without consent is also not permitted and is illegal. The employer must also ensure that all employee tracking is for operational purposes only.
Disclaimer: This article does not constitute legal advice. In case of doubt, you should always seek legal advice before using cell phone tracking.