GERMANY: New interception of telecommunications law
01 May 2001
Secret service surveillance legitimised by new powers
On 1 June 2000, the Bundesrat (Upper House) agreed a Bill (14/5655, which was passed by the Lower House on 11 May 2001), amending the existing telecommunications interception law, which gives German secret services powers to infringe the right to privacy in postal correspondence. MPs rejected 13 amendments to the Bill by the Socialist faction (Partei des Demokratischen Sozialismus ? PDS) and the Liberals (Freiheitlich Demokratische Partei Deutschland's ? FDP), which voiced concerns about its constitutionality. Parliament ruled that the government should report on the new law in practice within two years.
The regulations came into force within two weeks of the Upper House decision and have received widespread criticism from media commentators and civil liberties groups. They expressed concern over issues such as civil liberties and data protection, but also the speed with which the government passed the Bill through parliament, stifling parliamentary expert hearings and public debate. Others have pointed to the fact that the amendments increase control over the secret services conduct and data handling through the creation of an independent control commission. The improvement of independent control procedures was a response to an order by the Federal Constitutional Court in 1999, which deemed the existing interception law unconstitutional and obliged the government to change the legal basis for the "strategic surveillance" of telecommunications by the secret services before 30 June 2001.
Background
The interception law (called G?10?Gesetz because it infringes the basic right to privacy in telecommunications under Article 10 of the German constitution (Grundgesetz ? GG)) was introduced in 1968 under a broad coalition government. The strategic interception of international telecommunications however, was conducted illegally by the Federal Intelligence Service (Bundesnachrichtendienst ? BND, responsible for foreign intelligence) for over 30 years, without parliament, its oversight committees or data protection officers being informed. Only in 1980 did the oversight committees learn of the interception operations of the BND; the Federal Data Protection Officer only learnt of its activities after Der Spiegel published an interview with a BND officer responsible for technical information in 1993.
In 1994, the conservative government introduced amendments to the G?10?Gesetz that considerably increased the remit of the BND by allowing indiscriminate interception of telecommunications via satellite from Germany and within foreign countries in the "fight against crime". The increased powers were challenged in the same year by individuals and the newspaper taz, on grounds of constitutionality (violation of Article 10 GG). In 1999, the Federal Constitutional Court declared the interception law partially unconstitutional in relation to the authorities' handling of personal data and ordered the government to amend the law and give it a legal basis in line with the German constitution by 30 June 2001.
Tthe G?10?Gesetz does not regulate interception powers of police and other law enforcement agencies but only of German secret services. The former is mainly regulated under paragraph 100 of the Criminal Procedures Act (Strafprozessordnung) which gives powers to intercept individuals, where police can justify surveillance if "certain facts" lead them to suspect that a crime (the nature of which is listed in a crime index) might be committed in the future. In particular since the introduction of "preventative" policing in the 1980s, non?suspect related surveillance and personal data collection and storage were given legal bases in various police and procedural laws. The list of crimes that constitute reason for surveillance by police became long and vague, and has been criticised for its political nature. The "formation of a criminal organisation", for example, has historicall