In its coalition agreement, the traffic light government alliance has outlined its plans to raise the intervention thresholds for state and commercial surveillance software. The aim is to adapt the existing powers for the police to ensure that the guidelines set by the Federal Constitutional Court for secret online searches are always followed.
Federal Minister of Justice Marco Buschmann (FDP) is determined to implement this plan, as he believes that the previous comprehensive license for clandestine intervention in IT systems using state Trojans poses a risk of excessive investigation.
To achieve this, the Ministry of Justice has proposed a draft bill to amend the Code of Criminal Procedure (StPO). The bill tightens the boundaries for source telecommunications surveillance (source TKÜ) and online searches. Source TKÜ involves tapping ongoing communication directly on a suspect’s device before or after encryption.
Currently, the prerequisite for source TKÜ is a long list of criminal offenses. However, Buschmann wants to ensure that it is only permissible in cases of particularly serious crimes. The draft bill also aims to limit the technical capabilities so that only ongoing communication can be recorded, preventing access to saved chats on messaging apps like WhatsApp and Signal.
Under the proposed changes, the decision on ordering surveillance measures would be made by the chamber of a regional court, involving up to two lay judges. Prosecutors would only be able to apply for an extension for one month, rather than a quarter of a year.
Past incidents have highlighted errors in recording state Trojan deployments. In 2020, courts ordered a source TKÜ 25 times, with 11 of them being carried out. These deployments often relate to drug searches.
The draft bill also addresses online searches, ruling out the possibility of live surveillance of entire rooms, including bedrooms, by secretly activating cameras or microphones on cell phones and other devices through spy software.
The draft bill has been sent to other departments for approval. SPD Interior Minister Nancy Faeser will ensure that the needs of investigators are taken into account. However, Buschmann’s proposal for a quick freeze instead of data retention has not made much progress in the government process.
