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Germany: Expanded Telecommunications Surveillance and Online Search Powers

(Sept. 7, 2017) On August 24, 2017, a controversial amendment to the German Criminal Code of Procedure entered into force in Germany that expanded the powers of law enforcement agencies to conduct online searches and source telecommunications surveillance (called a “State Trojan”). (Gesetz zur effektiveren und praxistauglicheren Ausgestaltung des Strafverfahrens [Act to Make Criminal Proceedings More Effective and Practicable], Aug. 17, 2017, BUNDESGESETZBLATT (BGBl.] [Federal Law Gazette] I at 3202, BGBl. website.) An “online search” is defined as gaining access with technical means to an information technology system used by the suspect without his or her knowledge in order to extract data. (Id. art. 3, no. 9, § 100b, ¶ 1.) Source telecommunications surveillance, as opposed to general telecommunications surveillance, enables law enforcement agencies to access data at the source prior to encryption. (Id. art. 3, no. 8, § 100a.)

In order to monitor and access data on the computer or a mobile device without the knowledge of the suspect, law enforcement exploits software vulnerabilities in the electronic device to install a Trojan software program (“State Trojan”). The amendment allows the use of State Trojans for helping to secure convictions for a broad catalogue of crimes, ranging from genocide, crimes against humanity, war crimes, aggression, murder, and high treason to less serious offenses such as receiving and handling stolen goods, money laundering, incitement to submit a fraudulent asylum claim, and drug-related offenses. (Id.  art. 3, no. 9, § 100b, ¶ 2.)

Procedure

The use of State Trojans generally requires a court order. As an exception, in cases of imminent danger, it can be authorized by the prosecutor’s office, but that usage has to be confirmed by a court within three working days in order to remain effective. (Id. art. 3, no. 11, § 100e.)

Law Before the Amendment

Before the amendment to the Code of Criminal Procedure, telecommunications surveillance was only possible via network providers. (The German Code of Criminal Procedure StPO, Apr. 7, 1987, BGBl. I at 1074, 1319, as amended, § 100b, ¶ 3, GERMAN LAWS ONLINE.) In addition, before the amendment, only the Federal Criminal Police Office was permitted to use State Trojans, in order to prevent international terrorism. (Bundeskriminalamtgesetz [Act on the Federal Criminal Police Office], July 7, 1997, BGBl. I at 1650, as amended, § 20k, GERMAN LAWS ONLINE.)

Criticism of the Amendment and Its Consideration in the Parliament

The way in which the provisions on online searches and source telecommunications surveillance were introduced in the parliament has been criticized. Members of the governing coalition parties introduced them as an amendment to an unrelated criminal procedure bill, raising questions of lack of transparency and the intention to avoid a public debate. (Press Release, PM 7/17: DAV gegen Einführung der Online-Durchsuchung und Quellen-TKÜ [Press Release 7/17: DAV [German Lawyers Association, a private voluntary organization, not the official bar association] Against Introduction of Online Searches and Source Telecommunication Surveillance] (June 19, 2017), DAV website.)

In addition, concerns have been voiced about the constitutionality of the new powers in light of the jurisprudence of the Federal Constitutional Court regarding online searches. The association “Digitalcourage,” which promotes fundamental rights and data protection, has announced in a press release that they will challenge the new law on constitutional grounds. (Press Release, Digitalcourage klagt gegen Staatstrojaner – “Sicherheitslücke in allen Geräten” [Digitalcourage Sues Against State Trojans – “Security Gap in All Devices”] (July 27, 2017), Digitalcourage website.)

According to the jurisprudence of the Federal Constitutional Court, an online search is only permissible if there is a “concrete danger to a predominantly important legal interest.  Predominantly important are the life, limb and freedom of the individual or such interests of the public a threat to which affects the basis or continued existence of the state or the basis of human existence.” (Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Headnotes to the Judgment of the First Senate of 27 February 2008, docket no. 1 BvR 370/07, BVerfG website.) The association alleges that some of the crimes listed in the catalogue, such as drug-related offenses, do not rise to the level to justify the privacy intrusion. (Digitalcourage klagt gegen Staatstrojaner – “Sicherheitslücke in allen Geräten,” supra.)