A look at the legislature that was hastily put in place, and the laws that were amended, to stop the spread of SARS-CoV-2 in Germany. What is happening here from a privacy and civil liberties perspective?

I’m trying really hard to ignore this whole coronavirus panic where I can, but as I was preparing this episode of The Private Citizen – originally on another topic – it occurred to me that we need to talk about the current situation. As I sit here in my flat in Hamburg, there are now several new regulations in effect that are pretty chilling and that I never thought I’d see after the end of the Cold War and the tailing off of the terror scare. I think we need to be aware of what’s going on and be vigilant about the civil liberties and privacy impact of the coronavirus scare.

Sticking to the Topic at Hand

First off, let me say that I’m trying not to go into the woods too much about the actual disease. I have been very interested in virology since the early 2000s and do have insights both from virologists and intensive care doctors I’ve spoken to personally, but that’s not the topic of this podcast. We’re also very early into this thing and have very limited reliable data on the virus and its spread. Therefore, I think it isn’t prudent for me to judge what countermeasures are appropriate or not.

Although I know that my opinions will not be popular – for the simple fact that they go against pretty much anything the mainstream media and people on social networks have been reporting and think about the topic – I still think it is important to speak up. When I see a problem with the way we are behaving as a society, I think it is my duty as a conscientious citizen, and as a journalist, to add my voice to the discussion.

That said, I am not strictly against enacting the measures I will talk about today. It may well be that they are effective and justified in the moment. What I am saying is that we must be vigilant about them, understand what is happening and take care that this situation isn’t abused to settle us with rules, laws and regulations that we will never get rid of again once the crisis has passed.

COVID-19 Regulations in Hamburg

In this episode I will look at the local government’s response to the coronavirus scare in Hamburg, where I am located. The situation may be very different on the ground where you are. I’m very interested in your local situation. Please contact me and let me know about it. It might be worth covering the situation in other countries, particularly the US, in another episode if this whole situation keeps going for a while. I will definitely not turn this podcast into your weekly coronavirus update, though. I feel we have more than enough of that already.

In Hamburg, the city’s senate (the government of the federal state of Hamburg) has passed an Allgemeinverfügung (general edict) to contain the novel coronavirus SARS-CoV-2. This law came into effect on 15 March. Among other things, it stipulates:

  1. All kinds of public and non-public gatherings (independent of the number of people involved), are banned – this excludes private and family gatherings up to 100 people and official government business that relates to governing the city and public health and safety
  2. All kinds of public events, trade shows, sports and entertainment venues are closed
  3. Pubs, bars and restaurants are closed, except for staff canteens under certain circumstances
  4. Theatres, museums, movie theatres, concert venues, youth centres, libraries, swimming pools, spas, gyms and common rooms and canteens of the university must be closed
  5. Additionally, all schools have now been closed at least until the end of March

Section 1 is the most interesting part of this law for our discussion, because it severely restricts Article 8 (Versammlungsfreiheit) of the Grundgesetz (Germany’s equivalent of a constitution). Article 8 says that public gatherings of unarmed citizens are explicitly allowed and is generally seen as an important pillar of teh democratic process. It is seen as crucial for the formation of opinion by the public.

Coronavirus and the IfSG

Aside from these coronavirus-specific regulations, we need to look at the Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen , also known as the Infektionsschutzgesetz (IfSG for short). This is a federal law with the intent to prevent the spread of infectious diseases that came into effect in January 2001.

Naturally, there is no mention of the COVID-19 strain of coronavirus in this law. The closest diseases that are listed as being subject to mandatory reporting by a doctor (§6 ) are hemorrhagic fevers, chickenpox and zoonotic influenza (influenza that has originated in an animal host). A number of other viruses (including MERS-CoV and Zika) are listed as subject to reporting if found by a lab (§7 ). These reports have to include the full name and address of the patient in question as well as copious details on the diagnosis and how the disease was contracted (§9 ). These details are processed and entered into a federal database (§14 ) run by the Robert-Koch-Institut (a federal agency, roughly equivalent to the CDC). The GDPR doesn’t apply to this, as far as I can tell. Whether this data is deleted after some time depends on epidemiological studies being run by the RKI, not a person’s civil rights.

An addendum was added to §6 IfSG by federal edict on 1 February, specifying that SARS-CoV-2 was also covered. This is per §15 IfSG .

§29 IfSG specifies that persons who are infected, were infected or are suspected of being infected with diseases within the scope of this law can be required to be tracked by public health and safety offices. They can be required to subject themselves to diagnostic procedures and have to allow government officials access to their homes. This section explicitly says that the rights to be free from bodily harm, to personal liberty and to privacy within your own home as granted by the Grundgesetz (GG) do not apply.

Quarantine rules are explained in §30 : If you have contracted, or are suspected of having contracted pneumonic plague or a hemorrhagic fever, the government is authorised to quarantine you in a healthcare facility, or if necessary by force in another secure facility. It is stated explicitly that Art. 2 GG (the right to personal liberty) does not apply. For all other diseases covered under the law in question, the section states that the patient (includes people suspected of having the disease) can be isolated in a healthcare facility or “in another appropriate way”. People who aren’t sick but are spreading this disease can only be compelled to be isolated if they are not following the instructions of healthcare personnel and “would harm their surroundings”.

This section also includes exemptions from the GG article on the privacy of mail – which some digital privacy rights in Germany are based on. Opening of the patient’s mail (in their presence) has to be justified by trying to prevent infections. Mail from courts, the government, priests and lawyers is explicitly exempted from this provision. As before, the rights to be free from bodily harm and to personal liberty do not apply here.

Violation of this law is punishable by up to five years in prison (§74 ).

Travel Restrictions

At the moment, things are getting more and more restrictive every day. Now, our bordering federal state of Schleswig-Holstein has closed its borders for tourists . They’ve also closed all stores that aren’t selling necessities like food or drugs. They’ve labelled it an “extraordinary emergency situation”.

Other federal states are also talking about closing their borders. It’s probably just a matter of time before I can’t leave the city anymore.

Conclusions

In summary, it has always been the case in Germany, that if you contract one of a number of infectious diseases (or if you are suspected of such) that you can and will be tracked by the government. Where very dangerous diseases are concerned, the government can force you to be quarantined and a number of restrictions to your civil liberties apply. COVID-19 / SARS-CoV-2 has been added to this list of infectious diseases, which was previously the case with MERS and zoonotic influenza.

What is completely new are federal-state-level edicts that require the closure of significant parts of public life and severely restrict the constitutional right to gather in public. These travel restrictions are also completely unprecedented in the history of the country.

What worries me about this is not so much the measures in itself. They might be justified by the scale of the outbreak. Although that is very hard to tell because of the blatant fearmongering in the media and the overreaction of large parts of the public caused by this. And it might be hard to tell if these measures were justified for quite a while to come.

What worries me is that nobody seems to even question if all of this is justified. Or if people are questioning it publicly, they are being drowned out by a massive outpouring of the mainstream opinion to the contrary. When civil liberties are being curtailed, there should always be a discussion about why and how and if it should happen. Instead, most of the public seems to have been immediately on board with this and naysayers are being mercilessly shouted down on social media. That doesn’t seem to be a healthy reaction to me. It doesn’t seem to be a healthy climate for a democracy (no pun intended).

I feel like we need to watch this situation carefully. In the best case scenario we have compromised some civil liberties to slow down the spread of a disease. But what if this disease isn’t by far as dangerous as the mainstream consensus would have you believe? Or if the measures won’t work anyway because they are based on wrong data and wrong predictions? What does this willingness to compromise civil liberties out of fear mean for the future?

Because one thing is clear: Once we give up liberties, or establish a precedent for the government to take them away, we can never roll that back.

Feedback

Bazzawill took up my suggestion to the listeners to write and tell me about the different kinds of people who listen to the show. He says he’s a high school teacher, teaching IT, maths and science. He’s been using episodes of the podcast for discussion topics in his IT class.

I had a good discussion about Clearview AI with my year eights and I think I might discuss geofence dragnets next lesson. I have been trying to gauge how this generation feels about privacy. Most will parrot back what they expect me to hear, but some where honest and told me of their public Instagram accounts, longing to be the next social media influencer. I have decided not to judge but to give information and some of my thoughts (such as that even if an account is public, still be mindful what you hand over to other networks, what was that great German word again?). I know I would not necessarily listen to my teachers, but if I can make students think who knows…

Fadi says about episode 6 on geofence warrants:

Of course, what triggered this subject was this piece of news related to Google. And there would probably be similar stuff about Apple or Facebook. But what I feel is missing is the issue with mobile operators. Even without a GPS, all mobile phones communicate with cell towers, and these towers have known locations. You can actually estimate a phone location from this triangulation. This information is available to mobile operators, and is actually being used in other less democratically minded countries.

One additional point to clarify, of course you need the association between an individual and a SIM card for this to work. In some countries you need to present a valid ID when purchasing a SIM card, so the association is there from the start. But even when this is not required, it’s still possible to infer this association by other means. And the same question about legality, arises here, but what is important is that this information exists, and regardless if it’s used by a warrant or sold, it’s still there as a side effect of the technology we use.

So, I’m sorry for sounding pessimistic, but this reality. And the only thing that we can do is to be aware of it, and of it’s possible consequences, and start to be more conscious of the data we are generating. Exercise more Datensparsamkeit! I’m also working from home today. Our company is testing this, as the Czech government is taking the COVID-19 matter seriously. So, stay safe! Stay free!

If you also have thoughts on the things discussed here, please feel free to contact me.

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Thanks and Credits

I like to credit everyone who’s helped with any aspect of this production and thus became a part of the show.

Aside from the people who have provided feedback and research and are credited as such above, I’m thankful to Raúl Cabezalí, who composed and recorded the show’s theme, a song called Acoustic Routes. I am also thankful to Bytemark, who are providing the hosting for this episode’s audio file.

But above all, I’d like to thank the following people, who have supported this episode through Patreon or PayPal and thus keep this show on the air: Niall Donegan, Michael Mullan-Jensen, Jonathan M. Hethey, Georges Walther, Dave, Kai Siers, Matt Jelliman, Fadi Mansour, Joe Poser, Rasheed Alhimianee, Mark Holland, Steve Hoos, Butterbeans, Shelby Cruver, Dave Umrysh, Vytautas Sadauskas, RikyM, drivezero and terile.