Telecommunications Carriers Data Protection Ordinance
TDSV
As of: 12 July 1996
(Federal Law Gazette I p 982)
Federal Ministry of Posts and Telecomrnunications
Table of Contents
Telecommunications Carriers Data Protection Ordinance (TDSV)
§ 1 Purpose and Scope
§ 2 Definitions
§ 3 Admissibility of Data Collection, Processing and Use
§ 4 Contractual Relationships
§ 5 Calls
§ 6 Billing
§ 7 Faults in and Improper Use of Equipment and Services
§ 8 Information on Incoming Calls
§ 9 Calling Line Identification; Call Forwarding
§ 10 Public Directories
§ 11 Directory Information
§ 12 Telegram Service
§ 13 Teleaction and Telemetry Services
§ 14 Store and Forward Systems
§ 15 Entry into Force
Ordinance regulating Data Protection for Telecommunications Carriers
The Federal Government hereby issues the following Ordinance under §10 (1) of the Law concerning the Regulation of Telecommunications and Posts of 14 September 1994 (Federal Law Gazette I pp 2325 and 2371):
§ 1 Purpose and Scope
(1) This Ordinance regulates the protection of the personal data of parties engaging in telecommunications. The following provisions apply to carriers and service providers providing the public with telecommunications services or contributing to such provision. Particulars subject to telecommunications secrecy of the circumstances of an identified or identifiable legal person or partnership, to the extent that such partnership is capable of acquiring rights or undertaking commitments, shall have the same status as personal data.
(2) Unless otherwise provided in this Ordinance or in other special legislation, the provisions of the Federal Data Protection Act shall apply.
§ 2 Definition
For the purposes of this Ordinance the following terms shall have the meanings defined below:
1. Parties engaging in telecorninunications
a) parties to a contract (the customers) relating to telecommunications Services (subpara6), entered into with a carrier or service provider (subpara 2),
b) identified or identifiable natural or legal persons or partnerships, to the extent that such partnerships are capable of acquiring rights or undertaking commitments, using telecommunications services offered by a carrier or service provider;
2. Service providers
Any entity providing telecommunications services on a wholly or partly commercial basis;
3. Information providers
Any entity offering information services on a commercial basis;
4. Calling cards
Cards used to establish calls and to collect personal data;
5. Telecommunications networks
The technical facilities in their entirety (transmission lines, switching equipment and any other equipment that is indispensable to ensure proper operation of the telecmmunications network) which serve the provision of telecommunications services or non-profit-oriented telecommunications purposes;
6. Telecommunications services
The profit-oriented offer of telecommunications, including transmission line offers to all natural or legal persons or partnerships, to the extent that such partnerships are capable of acquiring riyhts or undertaking commitments, and not solely for the members of closed user groups;
7. Carriers
Any entity operating a telecommunications system or contributing to such operation under the provisions of the Telecommunication Installations Act.
§ 3 Admissibility of Data Collection, Processing and Use
(1) The carrier and the service providers may collect for telecommunications purposes the personal data of parties engaging in telecorrmunications. Processing or use shall be permitted only to the extent allowed by this Ordinance or other legislation, or if the data subject has consented under the Federal Data Protection Act.
(2) The provision of telecommunications services may not be made dependent on the supply of personal data not required for the provision of any such service; this shall apply mutatis mutandis to the consent of the data subject to processing or use of the data for other purposes. Also deemed necessary shall be data relating to implementation of a given telecommunications service and collected with the due care required in telecommunications.
(3) Moreover, the carrier or service provider may only process or use for other purposes data collected in connection with the provision of telecommunications services if this is expressly provided for by another legal regulation.
(4)The service provider shall inform data subjects in appropriate manner of the collection, processing and use of personal data. The right to provision of information as set forth in the Federal Data Protection Act shall remain unaffected.
(5) Where any given telecommunications service harbours special risks for network security from unauthorised third-party intervention, the service provider shall inform its customers accordingly.
(6) The communication of personal data to bodies outside the area of application of the Federal Data Protection Act shall be permitted to the extent required for the provision of telecommunications services. Section 17 (4) of the said Act shall apply.
§ 4 Contractual Relationships
(1) The service provider may collect, process and use the personal data of a party engaging in telecoinmunications provided the data are required to establish with that party or to modify a contractual relationship for the provision of telecommunications services, including framing the contents of the same (customer data). Under a contractual relationship between a carrier and a servica provider (§2 subpara 2) the carrier may collect, process arid use the data of a customer of the service provider to the extent required for performance of the contract between carrier and service provider. Unless provided by this Ordinance, customer data may only be communicated to third parties with the consent of the party engaging in telecommunications.
(2) The service provider may process and use the data of its customers (§2 subpara 1 letter a) and of the customers of its service providers to the extent necessary for customer advisory and publicity purposes, own-purpose market research and to shape its telecommunications services to suit the needs of the market, provided the customer has not withheld consent. The service provider shall notify customers of their right to withhold consent in conjunction with information provided under §3 (4) sentence 1.
(3)If the contractual relationship is terminated, the customer data shall be erased by the close of the calendar year following termination of the contract. Erasure may be suspended for a period not exceeding two years if and for such duration as the handling of complaints or other reasons relating to the proper winding up of the contract require such. Furthermore, erasure may be suspended if legal regulations or the prosecution of claims necessitate a longer storage period.
(4) In connection with the establishment of or modification to a contractual relationship and the provision of services, the service provider may require presentation of an official identity card if this is necessary to verify the customer's particulars. Data other than that admissible under para (1) may not be collected.
§ 5 Calls
(1) The carrier may collect and process, to the extent required, the following personal data for the provision of telecommunications services (call data):
1. number of the calling and the called party or identity of the terminal, authorisation code, additionally the card number when calling cards are used, additionally the position when mobile stations are used;
2. the beginning and end of the call, indicated by date and time and, where relevant to the rates chargeable, the volume of data transmitted;
3. the telecommunications service used by the customer;
4. the termination points of fixed connections and the beginning and end of their use, indicated by date and time;
5. any other data required for call set-up and maintenance and for ascertaining the rates.
(2) Stored call data may be processed or used after the termination of a call if required for further call set-up or for other purposes permitted under this Ordinance. Otherwise, data shall be erased upon termination of the call.
(3) Carriers and service providers may also, with tbe consent of the calling party, use call data in a given instance to shape telecommunications services to suit the needs of the market, whereby the called party data shall be depersonalised forthwith.
§ 6 Billing
(1) The carrier may communicate to a service provider call data (§5 (1)) to the extent required by the service provider to bill its customer. Where the service provider has entered into a contract with a third party on collection of the rates, it may communicate to this third party the data cited in para (2)
subparas 2 and 3 to the extent required for collection of the rates. The third party shall undertake contractually to preserve telecommunications secrecy.
(2) The service provider may, for proper telecommunications service billing and for verification of the correctness of the same, collect and process the following personal data subject to the provisions of paras (2) to (9):
1. call data (§5 (1));
2. the address of the customer or recipient of the bill, the type of line (service used), the total number of time units incurred during the accounting period for a regular bill, the volume of data transmitted, the total amount payable;
3. other information required for billing, such as advance payments, payments with date of entry, payments in arrears, reminders, call barring and restoration of service, complaints submitted and handled, extensions of time for payment applied for and granted, payment by instalment and provision of security by the carrier.
of
(3) The service provider shall, after termination of the call, establish forthwith from the call data according to §5 (1) subparas 1 to 3 and 5 that which is required for charging; any data not required shall be erased forthwith. Call data, shortened by the last three digits of the destination address, may be stored for purposes of verifying rates charged - subject to para (4) - for a period not exceeding 80 days after dispatch of the bill. With regard to fixed connections, calculation of the storage period is based on the date of dispatch of the final bill. Where, prior to expiry of the time-limit cited in sentence 2, the customer has disputed the amount billed, call data may be stored until such time as the dispute has been definitively settled. Bills may be disputed within a period of 80 days following dispatch of the same.
(4) At the customers request, call data shall be
1. stored in full, or
2. erased completely at the latest by such time as the bill is dispatched.
Where call data according to para (3) sentence 2 have been shortened or erased according to subpara 2, the service provider is thus released from its obligation to subinit these data as proof that the bill is correct.
(5) Save lines in respect of which the customer is liable to pay for certain incoming calls, call data may not be evaluated in terms of called party number without the consent of the customer liable for payment; para (7) sentences 2 to 4 shall apply accordingly. §§7 and 8 shall remain unaffected. Evaluation of call data in terms of called party number shall only be permitted to the extent required to establish, frame the contents of or inodify a contractual relationship; calling party data may only be used with the calling party`s consent and called party data shall be depersonalised forthwith.
(6) The carrier may store and communicate call data to the extent required for its billing with other carriers or with its service providers or for other carriers' billing with their customers.
(7) Upon written request, a customer may be informed of data stored under para (3) sentence 2 and para (4) until such time as the bill is dispatched relating to those calls for the payment of which they are liable (itemised call statement). In the case of residential lines, the disclosure of such information shall be permitted only if the customer has declared in writing that they have informed all co-users of the residential line, and will inform future co-users forthwith, that the call data underpinning the statement have been disclosed to them. In the case of business lines in undertakings and public authorities, the disclosure of such information shall be permitted only if the customer has declared in writing that the employees have been informed, and new employees will be informed forthwith, and that the works council or the personnel representation has been involved in accordance with the statutory requirements or that such participation is not necessary. If public-law religious societies have issued their own staff representation regulations for their domain, sentence 3 shall apply provided that the respective staff representation replaces the works council or the personnel representation. Furthermore, a customer may be informed of data stored under para (3) sentence 2 and para (4) after dispatch of the bill if they have disputed the amount payable.
(8) The itemised call statement according to para (7) may not let calls be identified to or from persons, public authorities or organisations who or which themselves or whose employees are subject to special secrecy obligations if the lines in question are predominantly used to provide anonymous counselling in church or social matters and the customer of these lines has submitted a request to this effect, stating the reasons on which such request is based. Besides the groups cited in §203 (1) subparas 4 and 4a of the Penal Code this applies in particular to the Samaritans and to healthcare helpimes.
(9) When calling cards (§2 subpara 4) are used the card shall carry clear indication of the possible disclosure or call data stored. Where such indication is not possible for technical reasons or could not reasonably be expected of the card issuer, the customer must have made a declaration according to para (7) sentence 2 or3.
§ 7 Faults in and Improper Use of Equipment and Services
(1) To the extent necessary in a given instance
1. the carrier may collect, process and use the customer data (§4) and call data (§5) of customers and other parties engaging in telecommunications in order to detect, locate and eliminate faults and errors in telecommunications systems;
2. the carrier and the service provider may collect, process and use the customer data (§4) and call data (§5) required to detect and put a stop to the surreptitious use of services and other unlawful use of public telecommunications networks and facilities as well as ot telecommunications services, when there are grounds to suppose such, such grounds to be recorded in writing.
(2) To the extent required to prevent and detect The improper use of public telecommunications networks, the carrier and the service provider may process and use the call data collected there such that, from the total database of all billing periods of one month, tbe data relating to those network connections for which there are grounds to suppose that punishable misuse of telecommunications systems or the improper use of telecommunications services has been made, may be matched. Data relating to all other calls shall be erased forthwith.
(3) The Federal Ministry of Posts and Telecommunications and the relevant data protection control authority shall be notified forthwith of any implementation of a measure according to para (2) sentence 1 along with an account of the facts of the case. The data subject shall be informed thereof, as soon as this is possible without the purpose of the implemented measure being compromised.
(4) In the cases cited in para (1) subpara 2 message content may, in a given instance, be collected, processed and used by the carrier to the extent that this is indispensable to clarify arid put a stop to the acts specified therein and there is no other reasonable or proportionate means whereby the stated objectives could be achieved. Para (3) shall apply accordingly.
§ 8 Information on Incoming Calls
(1) Any customer arguing conclusively in a procedure for documentation that they are the object of malicious or nuisance calls shall, upon written request, be given information -relating also to more than one network - by the carrier on the lines on which the calls originated. The call numbers, the names and addresses of the parties to whom these numbers have been assigned and the date and time of the beginning of the calls and call attempts (called number detail) may be collected and stored and disclosed to the applicant. Disclosure may only be made when the applicant has narrowed down the calls beforehand in respect of date and time, if misuse of the monitoring facility cannot be ruled out in any other way.
(2) The customer of the line on which the identified calls originated shall be informed that information has been given thereon. An exemption may be made if the applicant can argue conclusively in writing that such disclosure could bring him significant disadvantages and that these disadvantages, when compared with the interests, warranting protection, of the calling party, appear considerably more serious. Where a customer on whose line the alleged malicious or nuisance calls originated receives notice in another way of the disclosure of information, they shall be informed, upon request, of such disclosure of information.
(3) The Federal Ministry of Posts and Telecommunications and the relevant data protection control authority shall be notified forthwith of measures taken to ensure paras (1) and (2).
§ 6 Calling Line Identification; Call Forwarding
(1) Where the service provider offers Calling Line Identification Presentation, it shall give the calling party the option of choosing, free of charge, between
1. general (per line) restriction of the indication of its number, or
2. case-by-case (per call) restriction of the indication of its number, provided this is technically feasible, or
3. Calling Line Identification for each call made.
Upon application, there shall be provided free of charge terminals without the Calling Line Identification feature. Terminals according to sentence 2 shall be marked as such in the public directories according to §10 (1), at the customer`s request. Where, in the cases specitied in sentence 2, marking according to sentence 3 has been effected, Calling Line Identification to a terminal thus marked shall only be possible when the markiny does not appear in a new edition of the public directory.
(2) Where the customer has withheld consent to entry in the public directory according to §10 (3), Calling Line Identification shall not be made unless the customer expressly wishes such identification.
(3) Where call forwarding on a per-call basis is offered, the service provider shall grant the customer to whose number the call is to be forwarded the possibility of preventing this happening.
(4) When a call is forwarded (para (3)), it shall be ensured that the calling party is informed of this fact, provided this is technically feasible.
(5) In the case of equipment answering or dealing with emergency calls on 110, 112 and~i24l24, carriers shall ensure that calling Line Identification is not restricted either on a call-by-call basis or generally.
§ 10 Public Directories
(1) The service provider may compile and publish public directories of its customers in printed or electronic form.
(2) There may be entered in the directory the customers name and address. At the customer's request, co-users may also be entered, subject to their agreement.
(3) There shall be omitted free of charge, completely or in part, an entry in electronic directories or a general entry in printed public directories, at the customer`s request. Each entry shall be marked accordingly. The service provider shall, with one of the next telecommunications bills, draw the customer's attention to their right to withhold consent.
§ 11 Directory Information
(1) The service provider may, in a given instance, provide information on call numbers within the meaning of §10 through information offices or have such information provided by third parties (directory information service). The transfer to third parties of the provision of directory information shall only be permitted if the service provider has obliged the third party to process and use the data solely for information purposes and to comply with the restrictions of §10 and of paras (2) and (3).
(2) There may not be given directory information in cases where the party concerned has withheld consent to entry in the directory, provided such party has declared nothing to the contrary.
(3) There may be provided information on data published under §10 additional to the call number where the customer has consented to provision of such additional personal data. The customer shall be advised of this option by means of an answercard enclosed with one of their next telecommunications bills. Consent is deemed as given when a declaration to the contrary has not been made within a period of four weeks.
(4) Such declaration shall be noted forthwith in the service provider`s directories. It shall also be heeded by other service providers and by all inforination providers from such time as it is noted in the service provider's public directory.
(5) Directory information on names and other personal data of customers in relation to whom solely the call number is known shall not be permitted.
§ 12 Telegram Service
(1) Data and documents relating to the operational handling and delivery of telegrams may be stored to the extent necessary to validate proper provision ot the telegram service under the customer' s contract. The data and documents shall be erased after a period of six months at the latest.
(2) Data and documents relating to the content of telegrams may only be stored beyond the date of delivery if the carrier is answerable for transmission faults under the customer 's contract. Data and documents relating to inland telegrams shall be erased after a period of three months at the latest; data and documents relating to international telegrams shall be erased after a period of six months at the latest.
(3) The time-limits for erasure shall commence running on the first day of the month following that in which the telegram was tendered. Erasure may be suspended where the prosecution of claims or international agreements necessitate a longer storage period.
§ 13 Teleaction and Telemetry Services
(1) The service provider may only process teleaction or telemetry data constituting personal data for as long as and to the extent: necessary to transmit data agreed between user and provider of the teleaction or telemetry service. Responsibility for ensuring that each individual retrieval is admissible shall rest with the provider of the teleaction or telemetry service under the applicable legal regulations. The service provider shall only investigate admissibility of the retrievals if there is reason to do so.
(2) There may only be stored for communication to utilities teleaction or telemetry data used to establish consumption to the extent required to bill for the commodity consumed; such data shall be communicated to the utility after four workdays at the latest and subsequently erased by the carrier.
§ 14 Store and Forward Systems
(1) The carrier may process message content, notably the customer`s voice, sound, text and graphics messages, in connection with services based on these and whose implementation requires intermediate storage, subject to the following conditions:
1. Processing takes place solely in the carrier's telecommunications systems unless message content is rerouted at the customer's request or by customer input in other carriers' telecommunications systems.
2. Content, scope and type of processing are determined solely by customer input.
3. The customer has sole right to determine who may input and access message content (party having right of access).
4. The carrier may inform the customer that the recipient has accessed the message.
5. The carrier may only erase message content as provided for in the customer's contract.
(2) The carrier shall take the necessary technical and organisational measures to rule out transmission errors and the unauthorised disclosure of message content within the carrier or to third parties. Measures shall only be required if the time and effort expended is reasonable in relation to the purpose of protection sought. Measures shall be adjusted to the prevailing state of the art if this is necessary to achieve the purpose of protection sought.
§ 15 Entry into Force
This Ordinance shall enter into force on the day following its promulgation. On that same date the Ordinance regulating data protection for services provided by Deutsche Bundespost TELEKOM of 24 June 1991 (Federal Law Gazette I p 1390) and the Ordinance regulating data protection for enterprises providing telecommunications services of 18 December 1991 (Federal Law Gazette I p 2337) shall expire.
The Bundesrat has given its consent.
