Max Planck Institute for Foreign and International Criminal Law

The prevention and prosecution of crime committed in the Internet is difficult because the competence of national security agencies ends at their national borders. For this reason, nation-states cannot effectively counter illegal content on foreign servers. Hence, many countries attempt to insulate their national territory against illegal content in the Internet: if data saved on foreign servers cannot be removed, technical blocking measures should at least prevent citizens from accessing it.
In Germany, too, orders for blocking access to such data have already been issued by agencies responsible for regulating the media. In practice, however, these "blocking orders" were not very effective, and their reception was predominantly negative. For this reason, the Commission for Protection of Minors in the Media (Kommission für Jugendmedienschutz), which is responsible for blocking orders in Germany, commissioned the Max Planck Institute for Foreign and International Criminal Law to provide an expert legal opinion on point.
The objective of the expert opinion and the resulting project was a comprehensive study of the legality of blocking orders in the Internet according to German law. With an eye towards future reforms, the project focused on the relevant infringements of fundamental rights. The systematic examination was based on our own preparatory work and analyses, on an assessment of the case law, and on academic literature in law and technology. Furthermore, the Dresden University of Technology prepared an expert opinion, likewise commissioned by the Commission for Protection of Minors in the Media, on the relevant technical issues.
The study showed that the existing regulations for blocking orders in Germany are inadequate. Already at the legislative level, the fact that multiple agencies may issue blocking orders proves to be detrimental, and the many referrals in the statutory provisions to other provisions lead to enforcement problems. The main problem with blocking orders, however, is that they lead to infringements of fundamental rights. The most important of these include the access provider’s rights to freedom of occupational choice and to property, the content provider’s right to freedom of expression, and the user’s right to freedom of information. Also problematic is the fact that in many cases the implementation of blocking orders also encroaches upon the user’s right to telecommunication privacy through reporting of the requested IP addresses and URLs. This fundamental right protects not only the content but also the proximate circumstances of the communication; most blocking technologies must engage in blanket control of these circumstances in order to prevent access to specific data. The current legal situation does not, however, permit blocking orders that infringe upon telecommunications privacy as protected by Art. 10 of the German Basic Law and § 88 of the Telecommunications Act. At present, this eliminates all of the more sophisticated blocking orders that involve the analysis of IP addresses, port numbers, URLs, or content data. Only the – less effective – manipulations of domain names on the corresponding servers and the elimination of entries on the hit list of search engines are permissible.
Due to these infringements of fundamental rights and interventions in the technical infrastructure of the Internet, it is questionable whether blocking orders in global cyberspace are practicable. If the legislature truly intends to facilitate more effective and transparent national protection against illegal content in the Internet, it will be necessary to engage in a serious discussion of the technical concepts regarding the “territorialization of the Internet” in open societies, of the various legal alternatives, and of the limitations on these alternatives as dictated by the personal liberties of citizens.