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Why you should know about Germany's new surveillance law

The controversial law allows government authorities to install a malware, the so-called ‘state trojan’, on smartphones, tablets and computers during a criminal investigation.

lead lead Smartphone. Flickr/Christian Hornick. Some rights reserved.At the end of its eighteenth electoral term, the German Bundestag voted in favour of a controversial law that allows government authorities to install a malware, the so-called ‘state trojan’, on smartphones, tablets and computers during a criminal investigation.

Failing to attract sufficient public debate so far, it is now important that we talk about how the new legislation facilitates extensive surveillance as a potential standard practice in law enforcement, in which way it compromises Germany’s national cybersecurity, and to what extent it complements EU legislation. 

Mainly unnoticed in plenary debate

The new bill passed with support of the grand coalition of Conservatives (CDU/CSU) and Social Democrats (SPD) on 22 June 2016. It was hidden in an amendment to an apparently uncontroversial law that advocates a more effective and practical criminal code. This is one reason why it remained widely unnoticed until its adoption.

During the plenary debate, Bettina Bähr-Losse (SPD) argued, “Twenty years ago, terrorist or criminal acts were planned in flats, whereas today they are organised in chatrooms.” Michael Frieser, member of the CSU declared, “This is how we facilitate efficient, cutting-edge law enforcement that’s keeping us all safe.” Members of the Green Party and the far-left Die Linke opposed the law. Konstantin von Notz, deputy faction leader of the Greens, criticised the law as “a radical and disproportionate violation of civil rights.” Left party whip, Jörn Wunderlich, deemed it to be one of the “most invasive surveillance laws of recent years.”

What is a state trojan and when is it used?

The state-owned malware, officially referred to as Remote Communication Interception Software (RCIS), is still running through various test phases. According to a leaked document published on netzpolitik.org, the Federal Criminal Police Office (BKA) considers it should be fully operational by the end of this year. 

Simply put, once the malware is installed on a suspect’s device, it will allow investigators to monitor messages before they are encrypted and thus, read communications on messenger services such WhatsApp. Whereas previous surveillance measures were limited to a few serious crimes, the new bill allows the use of malware in various other cases such as subsidy fraud, tax evasion, sports betting fraud or falsification of documents. The government claims that investigators are only supposed to read ongoing conversations similar to conventional phone-tapping, not gain access to stored messages. In this way, the government believes fundamental data protection rights to be guaranteed.

However, their argument is probably not technically feasible, as the malware would be required to capture a particular set of sent or received messages, while simultaneously excluding all other keystrokes, drafts or messages from previous chats. In either case, it must be argued that data protection rights are applicable to the entire communication.

So, while this position most probably challenges fundamental data protection rights, its technical implementation is highly disputed. The legislation further permits remote online searches in more severe cases, i.e. investigations of murder and treason but also corruption, money laundering, extortion, or drug offences. Hence, federal authorities may exploit this access to read and process the entire data stored on the computer memory and hardware. If necessary for the investigation, even third parties’ devices may be hacked.

What are the controversies?

The new bill constitutes a serious expansion of the surveillance measures that can be deployed by the German government. Unsurprisingly, the law is most probably in violation of the constitution. A ruling by the German Constitutional Court in 2008 recognised the confidentiality and integrity of IT systems as a basic right. Hence, remote access to a citizen’s computer is permissible only if there is a concrete threat to an exceedingly important and legally protected good that is the people’s life and freedom, or critical public goods whose hazard affects the existence of the state. 

On top, there is a dangerous catch. To install the malware, German authorities must make use of existing security holes and weaknesses in operating systems. A logical consequence of using the tool is the uncalculated risk of deliberately maintaining identified vulnerable points in national IT systems. Moreover, the government’s own interest in gaining access to devices effectively assists potential unauthorized access such as foreign cyber-attacks.

European cyberspace as a digital battlefield

In view of the increased use of hybrid warfare including state and nonstate cyberespionage and sabotage activities such as the global ransomware attacks on critical infrastructures and businesses (i.e. WannaCry and ExPetya) or Kremlin-funded disinformation campaigns on various social media or news media such as RT Deutsch and Sputnik, cybersecurity has risen to the top priority on European agendas. In his 2017 State of the Union address at the European Parliament, Jean-Claude Juncker declared, “Europe is still not well equipped when it comes to cyber-attacks … [which] can be more dangerous to the stability of democracies and economies than guns and tanks.” Ironically, the interception or theft of personal data using tools such as the state trojan is clearly understood as cybercrime.

Despite the emerging focus on cybersecurity, the effectively destructive German state trojan is compliant with recently adopted EU law. In April 2016, the European Parliament adopted a regulation covering the protection of natural persons with regard to the processing of personal data, and the free movement of such data; however, it excludes the processing of data “by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.” Hence, the regulation does not deter Germany’s expansion of surveillance by means of malware during criminal investigations. 

Incoherent approaches

The current political debate on internal and external security threats is ambiguous. The EU and its member states propose to counter emerging cyber-threats posed by state and nonstate actors. However, the use of malware as a national approach to advance surveillance will foster inverse effects on national cybersecurity capacities, whilst jeopardising citizens’ basic rights. To conclude, it is highly uncertain whether the German state trojan or the EU’s gap in legalisation that tolerates such an extension will provide any added value to our security environment. 

iOS7 Homescreen blurred (DSC_0719). Flickr, Jan Persiel. Some rights reserved.

About the author

Sara Bundtzen is currently pursuing her master's degree in International Security at Sciences Po Paris. She holds a bachelor's degree in European Studies from the University of Southern Denmark and is a freelance writer for the European Student Think Tank (EST), Anti-Corruption International (ACI) and The Paris Globalist. 

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