Germany's Draft Bill on IT Security

by White & Case LLP
Contact

[co-author: Mathias Bogusch]

On August 19, 2014, the German Federal Ministry of the Interior ("GMI") proposed a new bill to increase the security of IT systems (the "Draft Bill").[1] As contemplated in the White & Case Technology Newsflash of December 2013[2], this initiative stems from the current German Government’s Coalition Agreement[3], which outlined the digital agenda for the next four years.

Main Goals
The Draft Bill includes proposed amendments to several national laws relating to the security of IT systems, with an overarching goal of improving the protection of German citizens, companies and governmental institutions. It is intended to strike a reasonable balance between risk, protection requirements and accountability. The Draft Bill's addressees will be responsible for comprehensively protecting their IT systems against a variety of IT security risks, including cyber threats, cyber attacks, cyber spying and other forms of cyber crime. At the same time, it is envisaged that the powers of the German Federal Office for Information Security ("BSI"), the national security agency in Germany, will be strengthened.

The overall objective of the Draft Bill is to establish Germany as a global leader in the field of IT security. The key elements of the Draft Bill are as follows:

IT Security Requirements

  • Pursuant to the Draft Bill, the German Act on the Federal Office for Information Security ("BSIG")[4] will be amended to broaden its scope to so-called critical infrastructure. Going forward, the BSIG will also apply to certain facilities, systems or parts thereof in the areas of energy, IT and telecommunication, transportation and traffic, health, water, food as well as finance and insurance[5], with details to be defined by way of a regulation to be issued by the GMI after consultation with the interested parties[6].
  • Operators of critical infrastructure will be obligated to ensure the protection of IT systems, components and processes relevant for functioning of such infrastructure by implementing state-of-the-art technical and organizational security measures within a period of two years following the enactment of GMI’s regulation and to report immediately any incident related to the security of such infrastructure to the BSI[7].
  • The Draft Bill also provides for similar amendments to the German Telemedia Act[8] and the German Telecommunications Act[9], requiring commercial internet service providers and telecommunication providers to also have in place appropriate, state-of-the-art technical and organizational measures to prevent unauthorized access to telecommunication and data processing systems[10]. In addition, Internet service providers will be obliged to offer safe authentication procedures to their user[11], while telecommunication providers will be subjected to extended notification obligations in relation to security incidents.

Extended BSI Authorities

  • Pursuant to the Draft Bill, the BSI will become the focal point in Germany for IT security matters[13].
  • As a consequence, the right of the BSI to issue public warnings about IT security risks and data breaches will be expanded[14].
  • In addition, the right of the BSI to assess IT products, systems and services will be broadened. To this end, the BSI will be entitled to use all technical means and request support by third parties (if necessary)[15]. 
  • Furthermore, the BSI will have authority to set standards for IT security within German federal authorities[16].

Conclusion
If the Draft Bill were to be passed in its present form, the requirements for operators of critical infrastructure, as well as for internet service providers and telecommunication providers with regard to IT security would substantially be increased. Equally, the BSI's powers would be expanded and the BSI would have significant influence on the quality, adequacy and legitimacy of the pertinent security measures. While the German Government seems to be determined to push the Draft Bill through the legislative process, the affected industries are raising initial concerns in relation to burdens and costs associated with the initiative. Whatever the outcome, the Draft Bill will form the basis of the German Government’s position for upcoming discussions around the proposal for a directive of the European Parliament and of the Council concerning measures to ensure a high common level of network and information security across the Union[17].

[1] - See Referentenentwurf des Bundesministeriums des Inneren – Entwurf eines Gesetzes zur Erhöhung der Sicherhe informationstechnischer Systeme (IT-Sicherheitsgesetz), available at: http://www.bmi.bund.de/SharedDocs/Downloads/DE/Gesetzestexte/Entwuerfe/Entwurf_IT-Sicherheitsgesetz.pdf?__blob=publicationFile (last accessed: August 2014).
[2] - See http://www.whitecase.com/articles-12162013/ (last accessed: August 2014).
[3] - See Deutschlands Zukunft gestalten – Koalitionsvertrag zwischen CDU, CSU und SPD – 18. Legislaturperiode, available at: https://www.cdu.de/sites/default/files/media/dokumente/koalitionsvertrag.pdf (last accessed: August 2014).
[4] - Gesetz über das Bundesamt für Sicherheit in der Informationstechnik (BSI-Gesetz – BSIG).
[5] - Cf. Draft Bill on new Sec. 2 (10) BSIG.
[6] - Cf. Draft Bill on new Sec. 10 (1) BSIG.
[7] - Cf. Draft Bill on new Sec. 8a (1) and 8b (4) BSIG.
[8] - Cf. Draft Bill on amended Sec. 13 and 15 German Telemedia Act.
[9] - Cf. Draft Bill on new/amended Sec. 100, 109 and 190a German Telecommunications Act.
[10] - Cf. Draft Bill on amended Sec. 13 German Telemedia Act and (amended) Sec. 109 (2) German Telecommunications Act.
[11] - Cf. Draft Bill on amended Sec. 13 German Telemedia Act.
[12] - Cf. Draft Bill on amended Sec. 109 (5) and new Sec. 109 (4) German Telecommunications Act.
[13] - Cf. Draft Bill on new Sec. 8a and 8b BSIG.
[14] - Cf. Draft Bill on amended Sec. 7 BSIG.
[15] - Cf. Draft Bill on new Sec. 7a BSIG.
[16] - Cf. the amendments of the Draft Bill to Sec. 8 BSIG.
[17] - See http://eeas.europa.eu/policies/eu-cyber-security/cybsec_directive_en.pdf (last accessed: August 2014).

Written by:

White & Case LLP
Contact
more
less

White & Case LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.