Higher legal hurdles for cellphone tracking in Germany

Christoph Enaux

GSM technology allows its users to determine the geographical position of the user of a mobile handset with a precision of between a few hundred yards and just a couple of yards. Individualised services using these location data of a GSM cell phone can be very useful, e.g., in assisting you to find the next restaurant of your choice, a fancy bar or a particular shop in a new town. Location-based services, however, can also be a high risk to privacy and data protection, in particular if somebody else tracks a cell phone without the user knowing it.

Under German telecommunications law, location data “collected or used in a telecommunications network” (i.e., cell tower data or Wi-Fi data) can only be processed and used for value added services if they are made anonymous or if this is done with the consent of the users or subscribers. Such consent generally can also be provided electronically, e.g. by a short text message.
In order to overcome the risk that a short text message sent by a third party — be it a jealous partner, your boss or a business contact — from another person’s phone activates a tracking service without the user knowing it, an amendment to the German Telecommunications Act recently entered into force which provides for particular consent requirements for the use of mobile phone location data by third parties: If location data will be used by another customer or third parties not providing the value added service, the user’s consent has to be in explicit written form (i.e., not by a text message), and the customer must be informed after every five instances of location tracking that such tracking has taken place.
This new amendment will impose much higher hurdles on tracking services which have recently been offered in Germany.

Funnily enough, however, the tracking service which mostly raised the lawmakers’ attention and was the reason for the new amendment to the Telecommunications Act is a pure fun application and does not track the location of your loved ones at all…

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