By Glyn Moody
A legal requirement to add backdoors to encrypted systems for “lawful access” has been discussed for many years. Last month, the EU became the latest to insist that tech companies should just nerd harder to reconcile the contradictory demands of access and security. That’s still just a proposal, albeit a dangerous one, since it comes from the EU Council of Ministers, one of the region’s more powerful bodies. However, a court in Germany has decided it doesn’t need to wait for EU legislation, and has ordered the encrypted Web-email company Tutanota to insert a backdoor into its service (original in German). The order, from a court in Cologne, is surprising, because it contradicts an earlier decision by the court in Hanover, capital of the German state of Lower Saxony, and Tutanota’s home town. The Hanover court based its ruling on a judgment by the Court of Justice of the European Union (CJEU), the EU’s highest court. In 2019, the CJEU said that:
a web-based email service which does not itself provide internet access, such as the Gmail service provided by Google, does not consist wholly or mainly in the conveyance of signals on electronic communications networks and therefore does not constitute an ‘electronic communications service’
Despite this, in the Tutanota case the Cologne court applied a German law for telecoms. Tutanota’s co-founder Matthias Pfau explained to TechCrunch:
“The argumentation is as follows: Although we are no longer a provider of telecommunications services, we would be involved in providing telecommunications services and must therefore still enable telecommunications and traffic data collection,” he told TechCrunch.
“From our point of view — and law German law experts agree with us — this is absurd. Neither does the court state what telecommunications service we are involved in nor do they name the actual provider of the telecommunications service.”
Given that ridiculous logic, it’s no surprise that Tutanota will be appealing to Germany’s Federal Court of Justice. But in the meantime the company must comply with the court order by developing a special surveillance capability. Importantly, it only concerns one account — allegedly involved in an extortion attempt — that seems to be no longer in use. Moreover, as the TechCrunch article explains, the monitoring function will apply to future emails that the account receives. And even then, it will only deliver any unencrypted emails that are present, because Tutanota is not able to decrypt users’ emails that apply end-to-end encryption, which is entirely under the user’s control, not Tutanota’s.
That means the practical effect of this court order is extremely limited: to future unencrypted emails of just one quiescent account. But independently of its real-life usefulness, this order sets a terrible precedent of a court ordering an Internet company to insert what amounts to a backdoor in an account. That’s why it is vital that Tutanota’s appeal prevails — for both the company, and for the EU Internet as a whole.
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