Tracking and Controlling Your Child’s Mobile Phone Activities

I just came across a post on (a rather good IT news site – in German only, sadly) about bemilo, a service in the UK that (I quote)

“puts [parents] in full control of [their] child’s mobile service”;

“puts [parents] in the driving seat, 24 hours a day”;

“[gives parents] FULL control [w]ho [their] children can contact and who can contact them, time of das [their] children can use their phone, WHEN they can browse the web”;

“[enables parents to] [r]eview all calls & SMS messages at any time, block bullies at the flick of a switch, control mobile spend with no fuss [emphasis added].”

Do watch the intro on the website. It’s rather, well, unique, besides the fact that it the little toy man in the intro looks suspiciously similar to a typical LEGO design.

The service is obviously most interesting from a psychological perspective. But as a lawyer, I am, of course, not interested in the dark corners of the mind but exclusively in the how such a service would do in Germany from a legal point of view. Let’s just say that I’d rather not offer it in Germany, and I’d rather not use it as a parent, either.

First, there are the obvious privacy issues.

Whereas the collection, processing and use of personal data of children by their parents will in most cases fall outside the scope of the Germany Data Protection Act, parents do not own their children and cannot control their lives in each and every detail. Section 1626 (2) of the German Civil Code reads (and yes, we Germans regulate everything!):

“In the care and upbringing of the child, the parents take account of the growing ability and the growing need of the child for independent responsible action. […].”

Section 1631 (2) of the German Civil Code reads:

“Children have a right to non-violent upbringing. Physical punishments, psychological injuries and other degrading measures are inadmissible.”

Now, how much more degrading does it get for your 16-year-old than reading his/her SMS? Good thing, no one writes SMS anymore.

More obviously, though, the parent-child relationship provides no general justification to track phone calls and read SMS when looking at the person on the other side of the line. Put yourself in your child’s friend’s position or picture yourself as that friend’s mother or father. Would you be fine with having your or your child’s phone call tracked and SMS read by the parents of your or your child’s friends? Hardly, right? It is certainly an intrusion – and a secret one, at that – into the private realm of the other person – and a rather clear privacy violation unless you have a very good and specific reason to do so. And I am not even speaking about the fact that the data is apparently hosted and continuously made available by, and therefore known to, bemilo.

Second, certain aspects of bemilo’s services would likely violate at least section 96 of the German Telecommunications Act, and quite possibly also section 88 of the German Telecommunications Act that postulates that the content of the (tele)communication is to be kept in secrecy (think reading SMS).

Third, some aspects of the service would merit some criminal law considerations, as well. Section 202a (1) of the German Criminal Code, in badly translated from, reads as follows:

“Whosoever unlawfully obtains data for himself or another that were not intended for him and were especially protected against unauthorised access, if he has circumvented the protection, shall be liable to imprisonment of not more than three years or a fine.”

Section202 c (1) of the German Criminal Code reads something like this:

“Whosoever prepares the commission of an offence under section 202a or section 202b by producing, acquiring for himself or another, selling, supplying to another, disseminating or making otherwise accessible

1. passwords or other security codes enabling access to data (section 202a (2)), or

2. software for the purpose of the commission of such an offence,

shall be liable to imprisonment of not more than one year or a fine.”

Section 206 (1) of the German Criminal Code reads:

“Whosoever unlawfully discloses to another person facts which are subject to the postal or telecommunications secret and which became known to him as the owner or employee of an enterprise in the business of providing postal or telecommunications services, shall be liable to imprisonment of not more than five years or a fine.”

There is really no jurisdiction available on a service such as benilo’s, and, in fact, very little jurisdiction on section 202a, 202c and 206 of the Criminal Code at all. But I would expect our law enforcement institutions to at least open a file when asked to do so.

All in all, I would be very surprised if someone tried to market anything like benilo’s services in Germany any time soon.

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