Germany’s Role in Europe’s Digital Regulatory Power
Four elements help to map the strengths and, at times, the limits of German power in digital rule-making. First, Germany anticipates EU digital regulation and attempts to establish facts on the ground. Second, Germany has outsized influence in the formal stages of EU digital regulatory policymaking. Third, the EU, in turn, provides Germany with a launch pad for influencing worldwide regulatory norms. Fourth, a belated reawakening of the capacity of the German private sector and affiliated technical standard bodies to influence global technical standards is occurring.
Germany, as an EU member state, is engaging in three significant areas of data governance and cybersecurity: digital identities and open data, lawful access to electronic messaging systems, and rules for sovereign cloud usage.
Germany’s largely successful role as a key incubator for the EU’s regulatory approach to digital technology and, therefore, as a proponent of the “Brussels Effect” of influencing global markets is not widely appreciated or understood at home. The lag among regulations, tech-nology, and international context is evident in areas such as data protection, content moderation, and market power of online platforms. Even meaningful regulatory debates on quantum, the metaverse (AR/VR), and 6G have yet to arise in Germany.
Germany must change its approach to digital regulation to more accurately reflect the dynamic, general-purpose nature of emerging digital technologies against an increasingly fraught international landscape in which technological rules are a dimension of geopolitical power. This includes more fully addressing political trade-offs associated with digital regulation choices, expanding reviews and sunset clauses in digi-tal regulation to encourage flexibility, and making greater use of multi-stakeholder regulatory approaches that incorporate civil society, companies, and other non-state actors. Germany must also increase the engagement of its foreign policy and national security communi-ties in EU technology diplomacy and in global regulation enforcement.
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Germany is an important – perhaps the most important – force for setting the EU’s digital regulatory approach, which forms a basis for European power in the geopolitics of technology. Germany has been at the heart of the EU’s ambitious effort to root digital regulation in human rights, rule of law, and democracy. This regulation of platforms, algorithms, and data governance is set out in the EU’s Digital Services Act (DSA), the Digital Markets Act (DMA), the Data Governance Act (DGA), the Artificial Intelligence Act (AI Act), the Data Act and the Cloud Rulebook. Germany’s central role in shaping these rules means that the EU will succeed in updating its rule book only if Germany likewise updates its own thinking. That includes acknowledging just how geopolitical regulation has become, and how other powers balance regulation and innovation and, at times, profit with the costs of the EU being a regulatory first mover. As the bloc tackles the next wave in data governance on cloud, edge computing and the Internet of Things (IoT), Germany and, therefore, the EU have the chance to shape a regulatory framework that fosters European values and global competitiveness.
The State of Play
Germany is a confident, assiduous, and skilled actor in shaping digital regulation at the national and, particularly, the EU level. It understands the levers of regulatory power on digital technology in Brussels, and through various channels – federal and state governments, the private sector, and German civil society – Germany has the tools to shape the European rule book in a way that is consistent with an ordoliberal, rule-centric approach to digital sovereignty. But to the extent that the rule book becomes the basis for global digital regulation, German awareness breaks down. Four elements help to map the strengths and, at times, the limits of German power in digital rule-making.
First, Germany routinely attempts to anticipate EU digital regulation trajectories and to frame digital regulation debates in Brussels around its own concerns, more so than probably any other member state. The EU, in turn, tends to monitor the German debate to pave the way for smooth legal passage of its own priorities. Consequently, German legal traditions (e.g., in the evolution of privacy as the basis for the General Data Protection Regulation (GDPR)) and normative ordoliberal thinking (e.g., skepticism of cartels and digital market concentration) enjoy strong influence at the EU level. At the same time, Germany finds itself in something of an echo chamber, believing that its priorities – and not cross-border liberalization of digital services with non-EU like-minded states or regulatory scrutiny of the cyber risks of ICT infrastructure manufactured by China’s state-controlled enterprises, for example – are shared European priorities.
Of course, the EU rule book does not always reflect German priorities in the end, and other actors – the Commission, the European Parliament, the private sector including US technology companies, and other member states such as France and tech-savvy Nordic-Baltic states and Ireland – have typically influenced the transition from EU debate to legislation. Tension between the DMA and the 10th amendment to the German Competition Act is one example of this. So, too, is the friction between the DSA’s illegal-content regulation and that of Germany’s Network Enforcement Act (NetzDG). Still, German anticipation of EU legal debates is marked in almost every way by Berlin’s own domestic digital technology policymaking, from the screening of digital foreign direct investment (FDI) to due diligence of technology supply chains. The country’s Data Ethics Commission, for example, sketched in 2017 a framework for AI risk categories and assessment that was reflected in the EU’s 2020 AI White Paper and its 2021 draft AI Act. Germany’s IT Security Law 2.0 and Gaia-X, respectively, primed EU discourse on the Network and Information Security 2 (NIS 2) Directive and the European Cybersecurity Certification Scheme for Cloud Services (EUCS).
Second, Germany, the EU’s largest member state, is, in fact, overrepresented in the bloc’s digital regulatory policymaking. Germans occupy positions as key European Commission civil servants; well-positioned European Council staff; and members of the European Parliament (MEPs) serving as rapporteurs on key digital legislative packages and influential committee chairs; and key parliamentary secretariat staff. And, although many of these officials represent a broad ideological spectrum, they retain a German political sensibility. Only France rivals Germany in its use of key personnel to shape EU digital policymaking, particularly at the Commission (e.g., DG CONNECT) and in key regulatory agencies such as the Body of European Regulators for Electronic Communications (BEREC).
At times, these officials and representatives reflect the unadulterated interests of German institutions, including important German corporate players. This bias is not problematic in itself but rather a natural byproduct rooted in the connective tissue that binds Germany’s European policymakers in Brussels and the political discourse of the German business community. Companies can be good motors for German digital power, but they can also, if left unchecked, redirect German national leverage toward narrow corporate aims. And, more problematic still, they can perpetuate shared corporate blind spots. That includes their heightened sensitivity to potential Chinese retaliation against regulatory scrutiny of data processing and cybersecurity practices of Chinese companies operating in the EU. Businesses in Germany’s non-EU allies – Australia, Canada and the United Kingdom – are less worried about this because they are less dependent on Chinese markets. Market codependence with China has forced Germany to strike a balance between its need for Chinese consumers and its commitment to its own values in digital technology.
International and geopolitical concerns do, of course, frame German – and European – digital regulation, but these still bear the scars of past experiences dealing with the United States and suspicions regarding data protection and espionage. Following the 2013 Snowden revelations, Germany’s data privacy concern has been primarily aimed at the United States. Recent EU initiatives, particularly the DSA, the DMA, and European cloud proposals, also mainly affect American technology firms given their market dominance. But the extent to which this is perceived as a means of curtailing US tech influence can raise questions, and the overweening focus on the US simply does not reflect today’s geopolitical threats (Box 1). The co-regulatory design – and broad implementing authority for the Commission – in the DSA and DMA provide both with flexibility to evolve in ways that reflect new risks in ever-changing information ecosystems online and the dynamism of platform market power. As the two laws enter into force, an early test for EU platform regulation will be to what extent the DSA and DMA are fit for purpose to respond to the platform landscape of 2023, not 2015.
Third, the EU provides Germany, like other member states, with a launch pad for influencing worldwide regulatory norms. Global technology companies have famously made the EU’s GDPR the basis for data protection, including in jurisdictions outside the EU. Four years after the GDPR entered into force, countries such as Argentina, South Korea, Japan, and Kenya, and subnational powers such as California, with its California Privacy Rights Act (CPRA), use the GDPR as the basis for their own data protection regulation. Even the growing pressure on Washington to establish a federal US data protection law is driven, in part, by Europe. And the 2020 Schrems II decision, which struck down the 2016 Privacy Shield Framework for transatlantic transfers of personal data, forced the United States to make substantial changes to managing European grievances and to expanding checks on intelligence services’ data collection. The EU, as a regulatory first mover, has bent the global regulatory environment toward itself. This is a success for German concerns, but there are drawbacks. Many non-EU states, and most EU member states for that matter, struggle to meet GDPR standards, and this disrupts free data flows. Furthermore, other potentially more fruitful channels are open for the EU to build an international rule book.
On this front, the EU and like-minded states such as Australia, Canada, and the United Kingdom have begun (intergovernmental) regulatory discourse in fields reaching beyond data protection. These fields include content moderation, platform governance, the market power of individual firms, data protection, and risk-based approaches to AI. But this is a laborious effort as differences in internal legislative processes, regulatory competencies, federal structures, and constitutional limits lead to different outcomes.
At the same time, China has learned to parrot EU regulatory principles in pursuit of a far less high-minded set of goals. Its discourse on technology giants’ market power and data protection mirrors the debate in Germany and Europe, but its goal is to mollify international criticism while consolidating the Communist Party’s absolutist power. China’s 2021 Blocking Statute, which invalidates extraterritorial sanctions within the country, was modeled on EU law. Chinese regulation on personal data protection (including the 2020 Global Initiative on Data Security), competition, algorithms, and, most recently, on “positive energy” content governance borrow from European deliberations and, at times, even take the letter of European law. Still, these efforts are designed to conscript the Chinese technology sector and other actors into the service of party-state interests.
Fourth, Europe’s rule-setting power would be much smaller without Germany and its private sector’s influence in global technical standard-setting bodies. The German Institute for Standardization (DIN), the German Commission for Electrical, Electronic & Information Technologies (DKE), and the Association for Electrical, Electronic & Information Technologies (VDE) comprise a core of national bodies that feed into their European and international counterparts. Germany is one of six permanent members of the International Organization for Standardization (ISO) Council and holds 18% of ISO secretariats, 19% of International Electrotechnical Commission (IEC) secretariats, and 29% of IEC working group chairs. It also fields candidates for key positions, such as its 2022 bid for the director of the International Telecommunications Union’s (ITU) Telecommunication Standardization Bureau.
But in the same way that Germany is sometimes blind to the abundant influence of its private sector in shaping European regulation, it has been slow to recognize the relative decline in influence of Team Germany – and, consequently, Team Europe – in international standard-setting. The role of Germany’s private sector has been shrinking as especially Chinese state-owned and state-adjacent enterprises have gained control of key technical working groups and fielded model standards. China’s push for regional standard-setting arrangements through its Belt and Road Initiative could also create lock-in effects for third-party countries that tilt toward a mercantilist digital international system that favors China and techno-authoritarianism. This is part of a broader design that Henry Kissinger has called China’s “patient accumulation of relative advantage.” Germany, like the rest of Europe, has only belatedly realized that technical standard-setting is freighted with geopolitical danger, and this realization has come at a time when German private sector participation in international standard-setting bodies has atrophied.
Germany‘s Heavy US Focus
The transatlantic technological relationship remains the world’s primary artery of digital activity. Undersea information and communications technology (ICT) cables crossing the North Atlantic carry 55 percent more data flows than transpacific routes. But global digital activity, like all economic activity, is shifting away from the United States and toward the Indo-Pacific and Global South,even as Germany’s regulatory enforcement posture remains intently Atlantic-centric.
Germany’s January 2021 Data Strategy focused heavily on Gaia-X as a means of emancipating Europe from US cloud services (and the provisions of the Clarifying Lawful Overseas Use of Data (CLOUD) Act, which provides conditions for US authorities to access certain data in other countries), in part through the use of open source software such as OpenStack. The current German discussion about data localization, platform dependence, and encryption continues to be overshadowed by the National Security Agency revelations in 2013, former US President Donald Trump’s election in 2016, and the Cambridge Analytica scandal in 2017.
The EU’s regulatory enforcement effort is likewise primarily focused on the Euro-Atlantic. GDPR enforcement among Germany’s 17 Data Protection Authorities (DPAs) remains directed at US service providers and platforms. This has been justified given the dominant role of US digital services in the European market over the past decade. But the preponderance of DPA scrutiny of US technology firms contrasts with the lack of scrutiny of systemic violations by firms from adequacy states such as the United Kingdom, Canada, and Japan, and even by European firms themselves. Perhaps most interesting has been the proportionate lack of scrutiny of systemic violations, particularly in legal access requirements, by authoritarian states such as China and Russia.
There are, however, some indications that the spotlight is slowly shifting away from the United States. The EU’s draft AI regulation, informed by Germany’s 2020 EU presidency and the Federal Government’s Data Ethics Commission, pays greater attention to Chinese practices than similar EU regulation has in the past. The Commission draft’s most stringent provisions address social scoring, which it bans, and remote real-time biometric identification, which only law enforcement agencies in narrowly defined situations may use. These measures are implicitly based on China’sactions. The promotion of good moral behavior has long been characteristic of Chinese society, but AI-powered biometric identification combined with extensive video surveillance and a social scoring system forms a powerful and dangerous tool for social control
The Current Policy Approach
The present German government’s digital regulation debate is focused on a number of data governance and cybersecurity questions related to seamless digital interaction with public administration, lawful access to electronic messaging systems, and rules for sovereign cloud usage. This marks a change in focus from recent waves of EU regulation, in the sense that it recontextualizes data protection much more in terms of cybersecurity and away from state, and state-adjacent private, actors. This could provide opportunities for a recalibration of Germany’s European role to clearly define democratic principles of data governance in ways that are flexible and consistent with Germany’s understanding of digital sovereignty. So, what, precisely, is Germany doing?
A Digitally Enabled State
First, on the demand side, German efforts are focused on establishing cross-sectoral and secure electronic digital identities (eIDs) that draw on the experience of the Nordic and Baltic EU member states, and Ukraine, which have adopted eIDs. Germany’s eID Act came into force in September 2021 and laid the legal foundation for digital identification via smartphones with secure authentication technology supported by the Federal Printing Office (Bundesdruckerei). The government promised limited digital ID services by the end of 2021, but they remain offline. Problems with digital driver’s licenses, an ID wallet, and a Smart eID persist. On the supply side, Germany’s 2017 law on improving online access to public administration services (OZG) obliged federal, state, and local governments to offer administrative services digitally by the end of 2022, a deadline that governments at all levels are likely to miss. The OZG aims to connect government portals so that businesses and citizens can use a single user account to access online services. There is a risk here that bureaucratic foot-dragging in its implementation, lack of coordination among government agencies and, ultimately, non-uniform and uneven data availability could also lead to suboptimal use by researchers and the private sector.
Lawful Access to Online Communication
Another measure worth noting is the attempt by the German federal government to define conditions under which law enforcement agencies may compel messaging services to provide access to encrypted communications, a lingering point of tension between the law and end-to-end encryption. This has also been a topic of conversation for the EU since the disclosure of the FBI’s “Lawful Access” document of January 2021 that revealed which data law enforcement authorities may obtain from various messenger services. Services such as Apple, Signal, and Telegram continue to demur.
Last year, the European Commission itself announced a draft law on “chat control,” which then quickly disappeared from the agenda, possibly due to the massive protests of more than 30 civil society organizations. But the Commission tabled in May 2022 a proposal to “[lay] down rules to prevent and combat child sexual abuse.” The intent is to hold providers of interpersonal communication, in particular, accountable “to detect, report and remove online child sexual abuse on their services.” This may subsequently compel messaging and hosting services such as WhatsApp and Signal to soften their encryption procedures or to introduce other controversial solutions, such as hash matching or scans of end-users’ devices (“client-side scanning,” or CSS). Critics claim the proposal will undermine democratic principles by placing all European citizens under suspicion and undermining internet confidentiality and security
Sovereign Cloud and Industrial Data
Policy efforts in Germany and the EU have been circling each other in an effort to create a cloud infrastructure based on European rules and complemented by a federated European data infrastructure that may limit the market dominance of hyperscalers, with their vast capacity for processing data, through interoperability and portability requirements. The ultimate goal is a competitive cloud landscape under European rules that forms a foundation for infrastructure for the industrial internet and IoT.
Whether this German-led cloud approach will end up giving heft to the country’s own ordoliberal, rules-centric notion of digital sovereignty remains unclear. Gaia-X, which is an industry-driven spin-off of a Franco-German government initiative, is one option for an interoperable cloud standards architecture for Europe and, perhaps, beyond. But Gaia-X’s tack toward rules-centric digital sovereignty, in part by including US and Chinese players in its governance, has not lived up to the expectations of some European actors, including those in France. It has led some European actors to form rival initiatives, such as the European Cloud Industrial Alliance (EUCLIDIA) and EUCS. These are based on the French cloud certification regime, SecNumCloud, which is meant to isolate public administration from non-European cloud service providers. Moreover, despite announcements of related services such as a federated cloud infrastructure architecture (Structura-X) and sector-specific collaborations in mobility (Catena-X), agriculture (AgriGaia), and finance (EuroDat), Gaia-X seems beset by the deficiencies of similar, previous efforts: low adoption, uncertain private demand, and waning German political support.
Meanwhile, the German debate on data localization is growing. International data flows remain controversial, reflecting Germany’s deep ambivalence about the value and benefits of data access. Some in the German government, and politicians, legal experts and NGOs in Germany, are joined by more vociferous voices in France who question whether US cloud providers should store sensitive data at all. Their concerns lie in post-Schrems uncertainty on the protection and privacy of transatlantic data flows and the US CLOUD Act’s authorization for US law enforcement to access data stored on servers of US cloud service providers in Europe.
Germany is consequently considering rules for cloud usage in its public administration and sensitive sectors, as the EU looks to create a cloud certification process that considers questions about data localization. Germany joined France, Italy, and Spain – against the Netherlands, Sweden, and Ireland – to back “sovereignty requirements” in EUCS and Gaia-X’s Labelling Framework, which would essentially back data localization requirements. The strongest certification, EUCS’s “High” and Gaia-X’s “Level 3,” would limit choice and potentially cut the EU off from hyperscalers – since Amazon, Microsoft and Google are based in the United States – and from European companies with an American footprint, including Deutsche Telekom, SAP, and Bertelsmann. While these certification schemes are currently voluntary, the expectation is that they will, in some form, be required for the provision of public services in the EU in future, with serious implications for data usage across digital supply chains. Digital smart-city, health, and education services are among those that will be affected.
Germany’s Geopolitical Blind Spots in Rule-Making
As German policymaking moves forward on digital identities, cybersecurity, law enforcement and cloud governance, three blind spots are evident. These blind spots can impact Germany and the EU’s ability to balance governance with innovation and maximize their shaping power.
First, Germany’s largely successful role as a key incubator for the EU’s regulatory approach to digital technology and, therefore, as a proponent of the “Brussels Effect” of influencing global markets, is not widely appreciated or understood in Germany itself. To the contrary, German debate on technology tends to be inward-looking and gives little thought to how Germany influences the EU and the world. Policy deliberations often leave it to technocrats to reactively elevate national preferences to the European level. The discourse also tends to exclude the potential global implications of German rules, and it fails to assuage German fears about digitalization and data flows, which continue to find expression in EU law.
Second, there are lingering geopolitical issues surrounding the implementation and enforcement of existing rules, particularly of the GDPR, the DSA, and the DMA, which reflect a mismatch between the rules set and the context in which they were set. The preponderant Euro-Atlantic nature of German and EU enforcement aligns with the international digital state of affairs between 2012 and 2015. Since then, Chinese and Russian state-adjacent players have become significant players in cloud services, platform services, closed messaging systems, and smart infrastructure technology. IoT has also assumed more global importance. Regulatory enforcement has not kept up, creating German and European vulnerability in digital governance.
Third, shaping emerging technology rules can be slow to arise in Germany in a meaningful way, even if the country is adept at anticipating the EU debate. The Federal Agency for Information Security (BSI) issued first-of-its-kind model standards for cyber security protection of low earth orbit satellites that are meant to inform European model standards with the European Space Agency. And publicly funded R&D in quantum encryption will help drive standards on post-quantum cryptography, including with partners such as the US National Institute of Standards and Technology (NIST). Nevertheless, the lag between technological development and governance generally remains pronounced in Germany, Europe, and like-minded states. This is hardly supportive of the strategic regulatory environment that Germany and Europe want. Given that Germany’s and the EU’s market size is in decline relative to the rest of the world, so, too, is their regulatory power. In the midterm, the growing role of demand in India and the Global South will recast their roles in setting global regulations, norms, and market power.
Three factors determine Germany’s potential for global rule-making reach: the coherence of its vision, enforcement consistency in Germany and the EU, and the ability to make rules that preserve and strengthen European innovation, including for emerging critical technologies, without abetting protectionism. To embed its regulation and standards in a more hard-nosed geostrategic approach, Germany should:
Address the political trade-offs associated with digital regulation choices. The most difficult aspects of digital regulation often pit key German priorities, such as privacy and security, against each other. This forces policymakers to rank objectives. Debate on issues such as privacy, law enforcement, and national security should consider context, permit transparent oversight, and build on the principle that illegal activity offline is also illegal online.
Draft model clauses and modules that can be integrated into partner countries’ regulation. This could involve creating an open source regulation repository that expedites the process for non-European partners when it comes to achieving adequacy with the EU on personal and industrial data flows, IoT security, and content moderation, and to addressing aforementioned challenges with the GDPR. Model regulatory clauses and modules should be crafted to prohibit their misuse by authoritarians to justify mass surveillance, censorship, and data theft. Germany should also support the ability of other European states to regulate in their own sovereign ways, and the EU could help partner countries assess the impact of their own regulation.
Conduct geopolitical impact assessments of draft German and European digital regulation. As we have argued, German and EU measures could inadvertently strengthen digital authoritarianism or enable unintended and unwanted global trends such as data localization, censorship, weakened cybersecurity, or internet fragmentation. Authoritarian states such as China and Russia have already shown that they are ready to exploit such unintended consequences, picking and mixing rules to justify mass surveillance, censorship, and digital control over their citizens. Candid assessments of the impact of German and EU technology policy outside Europe could combat such misuse.
Fight creeping state-centrism of European technical standard-setting. The international power of European bodies such as the European Committee for Standardization (CEN), the European Committee for Electrotechnical Standardization (CENELEC), and the European Telecommunications Standards Institute (ETSI) stems largely from their openness to private sector actors, including non-European firms. It is not simply that technical standard-setting should be left solely to the private sector. But Germany has an acute interest in balancing private sector leadership with state and European interest. It must lead the effort to preserve the pluralistic nature of European standard-setting. Tipping the balance too much toward the state risks greater inefficiencies and, consequently, diminished German and European power in this area. It could also set an unhelpful precedent for authoritarian regimes.
Bolster private sector technical standard-setting capacity. Germany should introduce tax incentives and public funding mechanisms for domestic companies, startups, and associations to participate in standard-setting bodies, seek chairmanships, field draft standards, and work with like-minded states. Financial support could include grants from the Federal Ministry of Economic Affairs and Climate Action (BMWK) and the Federal Ministry for Digital and Transport (BMDV).
Embed high European Cloud Certification and Gaia-X Architecture of Standards into global cloud governance efforts. As industrial data could become a new frontline in global technology regulation, Germany should look at ways to internationalize its data space model, Gaia-X, to include non-European powers, especially the United States. The EU-US Trade and Technology Council (TTC) could develop democratic data spaces for industrial data based on Gaia-X architecture in national hubs in like-minded non-European powers. And Germany’s G7 presidency, in its final phase, could launch work on the free flow of data via trustworthy European regulation of, and architecture for, data storage, processing, and transfer. Japan could continue this work during its 2023 G7 presidency. Finally, Germany could support building the capacities of Global Gateway partner countries to use European cloud computing architectures to increase interoperability and preserve human rights. This aim aligns with the government’s promise to strengthen digital sovereignty in the Global South.
Integrate digital regulation and technological standard-setting into the Zeitenwende and the National Security Strategy. Germany must consider more intently the effects of digital regulation on its national security posture and defense industry. The country must ensure it can adopt and deploy dual-use technology on par with peer nations such as France, Canada, Japan, and the United Kingdom. This will require more flexibility in addressing national security interests. Provisions of the AI Act, for example, may prohibit the adoption of deep learning that other states’ militaries may exploit. And the unbundled digital services that German competition law and the DMA mandate will have unintended consequences for companies’ ability to reinforce their cybersecurity. Germany must better balance its technology regulation with national, EU, and NATO security interests. Germany did this successfully when creating criteria for trustworthy telecommunications equipment in its 2021 IT Security Law 2.0.
Increase the engagement of Germany’s foreign policy and national security communities in shaping and enforcing regulatory agreements. The German intelligence, foreign policy, law enforcement, and defense agencies have roles in enforcing technology regulations drawn up in Germany. Just as the United States should promote greater involvement of privacy rights groups in framework discussions, the German government should realize that it is time for those authorities to assume more prominence, and the post-Privacy Shield Transatlantic Data Privacy Framework (TDPF) era will offer a first chance. The German foreign and national security communities have a direct stake in maintaining an open EU-US data bridge that provides private actors with judicial access to US courts, enforceable rights, and limitations on indiscriminate personal data collection. They must take a leadership role in ensuring that the TDPF is a durable solution given the opportunity it presents to create clear regulations for free Euro-Atlantic data flows.
Establish a multistakeholder approach that incorporates civil society, companies, and other non-state actors. Germany and Europe have begun pioneering new models of managing technology regulation. Industrial regulation was highly regimented, appropriate for the engineering-oriented, stable technologies of the factory floor. Digital regulation, however, must be agile, ecosystem-based, and incentive-oriented. Following the DSA/DMA model, it must involve a thicket of relationships, responsibilities, and oversight that can more quickly raise alarms as blind spots in regulation arise. These flexible structures allow for constant oversight that is subject to compromise.
Expand reviews and sunset clauses in digital regulation to encourage flexibility. Given the rate of change in digital technology, regulatory and legal flexibility is key. Review and sunset clauses would compel regulators to consider the effectiveness and relevance of rules. Such clauses would also support consistency with regulation in other democracies. The aforementioned example of the GDPR shows the need for this effort, which also aligns with the imperative of ensuring regulatory certainty and with the importance of reform for future-proofing regulation.
About the Project
This DGAP project proposes an integrated policy approach to German digital capacities and objectives. Such a strategy should link Germany’s incumbent industrial strengths and digital governance objectives with its geopolitical aims.
This is the fourth in a series of reports that outlines an integrated approach based on seven interdependent layers of a “technology policy stack”. For this analysis, the DGAP invited 30 individuals to join a working group and participate, between July and October 2021, in seven off-the-record workshops on the crucial strategic dimensions of Germany’s international digital identity. Participants included elected officials, candidates, and senior German government representatives; German political party staff responsible for platforms and coalition agreements; subject matter experts in technology and foreign policy; thought leaders and senior technology-company management; key academics, economists, and political theorists; and representatives of civil society and digital rights advocacy organizations. Additional experts were invited to take part in the workshops on an ad hoc basis. Each workshop focused on a layer in Germany’s technology policy stack. Working group members were consulted intermittently during the drafting of this series.
We are grateful to the Open Society Initiative for Europe for their generous support, which made this project possible.