Re: [tor-relays] Registration of a Tor node at the German Bundesnetzagentur

[Moritz Bartl <moritz@xxxxxxxxxxxxxx>]

On 06.01.2013 20:20, tor-admin wrote:
>> Access Providers are bound to the Telekommunikationsgesetz:
>> http://www.gesetze-im-internet.de/tkg_2004/
> Reading the law it is still unclear to me if a Tor node operator is a 
> "Diensteanbieter" (service provider) as defined by the 
> Telekommunikationsgesetz. 

Law is always a bit "unclear" and every judge might see it differently.
Still, most lawyers seem to it similar to what I read:

TKG §3 provides with the definitions.
(6) "service provider" (within the scope of the TKG) is someone who
provides telecommunication services.
(24) "telecommunication services" (within the scope of the TKG) is a
service 'usually provided for a fee' (? IMHO useless part) that *in
whole or predominantly* consists of forwarding signals over
telecommunication networks.

One could become philosophical here and say that that applies to any
online service whatsoever, as in the end everything is just signal noise
on telecommunication networks.
The key interpretation is that a 'telecommunication service' is a
service that directly CONSISTS OF forwarding signals over (owned,
physical) networks. Otherwise, the whole division between TMG and TKG
would not exist. If you look at the rest of the TKG, that becomes (in my
opinion) very clear as those deal with frequencies, physical operations
of networks, phone numbers etc.

In that, it well applies to Freifunk, but does NOT apply to other
services, including Tor. For all those, the German law has TMG
(including the pesky "Impressumspflicht").

> If yes the law is pretty clear in § 6 that such a
> service has to be registered at the Bundesnetzagentur if it is done 
> commercially. 

The second part of your sentence here is fundamentally wrong.

In general, when German law uses the term "geschäftsmässig", most people
wrongly think it translates into "commercially". It does not and instead
as a rule of thumb translates to "anyone", even if you are not making a
single cent out of what you provide.

Applied to TKG, the above §3(24) speaks of services 'usually provided
for a fee', but of course also applies to those few providing these kind
of services for free. In my opinion, stating the obvious ("in
capitalism, most stuff costs money") does not help much.

-- 
Moritz Bartl
https://www.torservers.net/
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