New Act Distribution Highly Detailed Satellite Data

18 March 2008

Dr Alexander Duisberg, Ulrich Sachs

In November 2007, the German Parliament adopted the Act for the “Protection of the Security of the Federal Republic of Germany Against Endangerment by the Distribution of Highly Detailed Terrestrial Satellite Data” ("Gesetz zum Schutz vor Gefährdung der Sicherheit der Bundesrepublik Deutschland durch das Verbreiten von hochwertigen Erdfernerkundungsdaten") (the "Act").

Highly detailed terrestrial satellite data is already used for many different commercial purposes, for example providing digital map solutions, exploitation of natural resources and agricultural development and exploitation. The Act introduces a requirement to carry out a "Sensitivity Check" prior to using data commercially.

Main purpose of the Act

The main purpose of the Act is to protect German interests with regard to national security and foreign affairs. For example terrestrial satellite data could be used to enforce the impact of weapons systems.

The Act requires operators and processors that generate and handle terrestrial satellite data with high informational value to comply with a variety of provisions.

Although there are potential implications for individuals’ privacy as a result of processing satellite data, the Act does not amend the Federal Data Protection Act. During the legislative process, however, the implementation of provisions to protect individuals’ privacy resulting from the use of satellite data was extensively discussed. However, the parliamentary decision as to whether further protection for individuals' privacy was required was postponed, as the Act only addresses endangerment of national security.

Applicability of the Act

1. The Act only applies to data with high informational value ("High Value Data") where it is generated or processed. The Act does not give an exact definition of High Value Data, instead it allows the Federal Ministry of Economics and Technology to further define the term in an ordinance (to be issued at a later date).

2. The Act applies to individuals and legal entities that generate and distribute terrestrial satellite data ("Satellite Operators") if they are located in Germanyor operate facilities in Germany.

3. The Act also applies to individuals and legal entities that process such High Value Data and distribute it to third parties ("Data Processors") where they are either physically located in Germany or operate facilities in Germany. The Act requires Data Processors to conduct a sensitivity check ("Sensitivity Check") for each High Value Data request. Once the High Value Data has passed the Sensitivity Check, it can then be freely distributed and no further Sensitivity Check will be necessary, this is of particular importance where the Data is to be used for commercial purposes.

Data Processors' specific obligations

If a Sensitivity Check which is conducted by the Data Processors raises any security concerns, the Data Processors must seek approval from the German Federal Office of Economics and Export Control (the "Export Office") before handling the High Value Data request.

The Act does not define the criteria for Sensitivity Checks, or the criteria for handling High Value Data and approvals or refusals of the Export Office. These will be further specified in an ordinance to be issued by the Federal Ministry of Economics and Technology. According to the Act, the relevant criteria to be specified in the ordinance will be a combination of the following:

  • the informational quality of the High Value Data requested;
  • the identity of the individual requesting the High Value Data;
  • the geographical scope of the requested High Value Data; and
  • how up-to-date and accurate the requested High Value Data is.

Satellite Operators' and Data Processors' obligations

The Act also requires both Satellite Operators and Data Processors to take the following steps:

  • obtain general approval for their businesses from the Export Office;
  • grant the Export Office's agents free access to all of their facilities;
  • inform the Export Office regarding changes in their businesses (e.g. appointment of new shareholders/partners);
  • have a security check of individuals who can access their facilities conducted by the Federal Ministry of Economics and Technology
  • store information concerning High Value Data requests for a period of five years;
  • grant the Export Office's agents access to this information; and
  • prioritise any High Value Data requests received from German Government agencies (e.g. in cases such of national emergency).

Satellite Operators' Specific Obligations

Satellite Operators are specifically required to obtain approval from the Federal Ministry of Economics and Technology's for any business takeover by foreign shareholders.

Risks in the case of non-compliance

In the event of non-compliance with the provisions of the Act, Satellite Operators and Data Processors risk an administrative fine of up to €500,000.

Where non-compliance with the Act might endanger the essential security interests of the Federal Republic of Germany or endanger the peaceful coexistence of the people or the foreign affairs of the Federal Republic of Germany, the responsible individual(s) risk a penal sanction, including imprisonment of up to five years.