Fachgebiet Öffentliches Recht (Department of Public Law; Abbreviation “FÖR“) is devoted to teaching and researching Cyberlaw from a German perspective. Cyberlaw as we understand it is the law allocating chances and risks, rights and obligations in cyberspace. We follow the Humboldt idea of “unity of teaching and research” (“Einheit von Forschung und Lehre”) and are proud to report that more than hundred students each semester (bachelor and master students of Computer Science (Informatik), Business Adminstration with Computer Science (Wirtschaftsinformatik) and Business Administration and Engineering (Wirtschaftsingenieurwesen)) support the department attending our lectures and completing examinations in Cyberlaw I and Cyberlaw II . These followers and this audience enable the department to pursue its first motto: privacy (wird in neuem Tab geöffnet), security and legality by design.
For a law department teaching students with high intellectual capabilities and potential in information technology and economics, who do not aspire to a traditional law career (such as attorney, lawyer, judge), this consideration and implication of law consciousness is a priority. This interdisciplinary discourse between the department team with traditional law expertise and colleagues and students with information science and business administration competences is no one-way street, e.g. as early as in 2005 a student of Business Administration and Engineering published a student research paper on RFID Law (wird in neuem Tab geöffnet) (Radio Frequency Identification). The department chair, Viola Schmid, soon followed up with a contribution to C. Heinrich, “RFID and Beyond” (2006) with the title “Mastering the legal challenges (wird in neuem Tab geöffnet) ”. RFID law in 2005 is only one example of the pioneer ambition the department team pursues. As early as in 2006 Dr. Ruth Schadel published her doctoral thesis on “Security breach notification law (wird in neuem Tab geöffnet)” and again in 2010 the department laid groundwork for another endeavor for cyberspace: the law of cryptography with the doctoral thesis of Dr. Julia Gerhards. Summa summarum: the team of the department chooses core challenges of IT-governance (such as RFID, such as security breach notification, such as cryptography) in order to offer contributions for the development and establishment of a (legal) infrastructure for the cyberspace. As you see above: the motto is: “The ancient image of the Okeanos that links everything corresponds to the role of the Inernet today.“ (R. Michaels, RabelsZ 2005, 529) The department of Public Law has chosen the metaphor of a ship to navigate this ocean.
The department is aware that it is a question of “kybernetiké téchne” – the adventure of finding out where there should be law and where there should be no law. The department chair absconded from the traditional perspective of traditional law. As early as in 2003 she published an article with the title “Cyberlaw – eine neue Diszplin im Recht?” (in: R. Hendler / P. Marburger / M. Reinhardt, / M. Schröder, Jahrbuch des Umwelt- und Technikrechts 2003, Erich Schmidt Verlag, 2003, S. 449-480) establishing the provocative thesis that Cyberlaw is part of Public Law, but there is Public Law not being Cyberlaw, and Cyberlaw not being Public Law. This perspective explains why the department publishes not only relating to governance aspects in the cyberspace such as
- “acoustic residental surveillance” („akustische Wohnraumüberwachung“)
- “preventive telephone wiretapping” („polizeirechtliche Telekommunikationsüberwachung“)
- “dragnet investigation” („Rasterfahndung“)
- “automatic number plate recognition” („Kennzeichenscanning“)
- “online search of computers” („Online-Durchsuchung“)
- “traffic data retention” („Vorratsdatenspeicherung“)
- “renegade aircrafts” („Renegade Flugzeuge“)
- “Online-Demo”
- “Cyberbullying”
but also to scenarios governed by Civil and Competition Law such as
- „Phishing“
- „Subscription traps“ („Abo-Fallen“)
- „Competitor surveillance“ („Mitbewerbersurveillance„)
- “Secondary liability„ („Störerhaftung“).
The ubiquitous and pervasive digitalization (you may call it Ubiquitous Computing, “Connected Worlds (wird in neuem Tab geöffnet)” or (FÖR terminology) “Computer-assisted Living”) of our lives, our products, and our services poses, from a global perspective, nearly identical questions for every country in this world. The information technology is invented, produced and marketeered worldwide – and consequently African, Asian, Australian, South and North American and European cultures are confronted with similar challenges: how do you respond to the potential of new information technologies such as “Google Street View”, social networks, e-governance and the internet?, e.g. filtering and blocking the internet – the famous title “Access denied”.
Hence the department is aware that its technology law perspective reflects different cultural, social and political notions of different countries: there is no common understanding between China and Germany on how to filter and block the internet; there is no common understanding between Germany and the USA concerning the suppression of hate speech. But not only the suppression of illicit and illegal speech on the internet demands a global perspective – moreover the globalization of markets demands, e. g., research for the international organization and exchange of data (e. g., logistics pose the question of international RFID and bar-code systems). The department is devoted to comparative technology law (the information technology law of each country reflecting its cultural, social and political substance). Summa summarum: the department starts from a German perspective in analyzing the scenarios and invites contribution and criticism from the international public in order to
- reflect on German Cyberlaw and
- keep a critical eye on its ambition to offer a German and European-based law model for global cyberspace.
The perspective of the department is global (“RFID Legislation in a Global Perspective”, in: W. Hansen / F. Gillert, RFID for the Optimization of Business Processes, John Wiley & Sons, 2008, S. 209-219); the general competence of the department is German and European. Therefore we are eager to come in contact with representatives of other (legal) cultures and we explicitly regret that we only formulate this offer in English. With this focus, we do not want to express disrespect for other languages such as Arabic, Chinese, French, Russian or Spanish.
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1. Legal Sovereignty The department recognizes that a number of governance questions are connected with the digitalization. The department is principally neither technophobic nor technophile. The department recognizes and respects that there will be always be
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2. Pars pro toto Ubiquitous and pervasive digitalization poses unsolvable questions on (IT)-governance for every department in capacity, competence and quality. For these reasons, the department limits itself to the selection of paradigmatic scenarios, (e.g.)
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3. Legal Open Source Since its foundation (2002), the department follows a consistent legal open source policy. Results of research are made available freely to the audience online. The department has also developed an independent format – the so-called CyLaw-Reports (in 2010 approx. 800 pages are on the internet). With the publication strategy, the department is pursuing two goals:
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4. “As little law as possible, as much law as necessary.” Fundamentally, the department does not recognize any difference in meaning in this statement than with “As much law as necessary, as little law as possible.“ Scientifically, this is about establishing „decision determining law“ (FÖR terminology) – in other words, a legal minimum standard, that does not allow other philosophical, sociological, political and economical decision. |
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5. Global perspective Even though the department primarily covers European and German legal compentencies, it is not limited to a continental view, but goes beyond these boundaries and sees itself cross-continentally as a global perspective. |
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6. Legal realism The department is not interested in paper laws, but rather in the effective and efficient implementation of mandatory legal standards. Therefore, the department is based upon the so-called „T-E-E-Formula“:
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Prof. Dr. Viola Schmid, LL.M. (Harvard) is a constitutional law scholar with a venia legendi in Public, European and Energy Law. Furthermore, she posesses successful experience as a business lawyer. Since the beginning of her scientific activity, the legal treatment of infrastructures has been the focus of her interests. Already the disseration on constitutional protection of the family (which also contains specifications on Luhmann’s system theory, as well as on Gehlen’s institutional theory) was pleasantly received (P. Häberle, AöR 1991, 654; Allgemeines Ministerialblatt 12 / 1991; W. Pintens, Rechtskundig Weekblad Nr. 15 / 1989; G.Roellecke, DÖV 1990, 985). Another focus is the publication of a book on marketing energy saving in 1997. Since 2002 and the calling to the department for Public Law, she dedicates herself to teaching and researching the law of infrastructures that become necessary due to digitalization. The comments on the legal requisites of e-justice must be highlighted (V. Schmid, in: H. Sodan / J. Ziekow (Hrsg.), Kommentar zur Verwaltungsgerichtsordnung, Nomos Verlagsgesellschaft, 4. Auflage, 2014, 271 pages).