The Federal Government’s initiative to expand digital investigative powers has met with mixed response in the Federal Council. In principle, the state chamber is demanding a significant tightening of the executive branch’s controversial legislative package for automated image comparisons on the Internet and AI-supported data analyzes for criminal prosecution. In its plenary session on Friday, the state chamber made it clear that it wants to impose a stronger role on the federal authorities as IT service providers and central interface for surveillance and to reduce the hurdles to mass data comparison in criminal proceedings.
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One point of contention is the draft law to amend the Code of Criminal Procedure (StPO), which is intended to regulate the use of cross-procedural research and analysis platforms by investigators. With the draft, the federal government is reacting to the ruling of the Federal Constitutional Court of February 2023, which linked the use of such systems in police work to strict constitutional criteria and called for an explicit legal basis.
However, the Federal Council considers the version of the new Section 98e of the Code of Criminal Procedure proposed by Justice Minister Stefanie Hubig (SPD) and Interior Minister Alexander Dobrindt (CSU) to be technically inadequate. In practice it falls short.
Coupling law enforcement and security
According to the Federal Government’s wishes, data for automated analysis in criminal proceedings should only be allowed to be further processed if they have already been brought together as part of a police platform. That is too vague for the countries. It seems completely unclear to you what is meant by such a link. The spectrum ranges from the purely technical connection of data sources to a deep connection to an overall police picture.
The government draft stipulates that only data that has already been brought together on the basis of existing state law rules to avert danger may be processed. In practice, according to the Federal Council, this coupling would mean that the painstakingly created AI analysis tools often could not be used in traditional criminal prosecution. If, for example, a large complex of child abuse or organized crime structures were to be investigated, the state legal requirements for preventative averting of danger would often not even be present in the individual case. In addition, those countries that have not yet established a legal basis for automated data analysis in their own police laws would be left out in the cold.
The Federal Council is therefore calling for independent authority to combine data in advance exclusively for the purpose of criminal prosecution. The federal states also complain that the new analysis systems should incorporate police databases, but not the lawfully collected data from public prosecutors. That is illogical.
Digital surveillance architecture
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The eco association of the Internet industry contradicts this. Above all, he rejects the planned options for automated biometric comparison with data publicly accessible on the Internet. This would effectively convert the open Internet into a state search and identification space.
Klaus Landefeld, eco board member for infrastructure and networks, warns of the drastic consequences of setting up a biometric search archive. Anyone who makes publicly accessible content automatically searchable for faces or identities shifts the boundary between targeted law enforcement and general digital surveillance of the entire population.
Eco admits that effective investigative tools in the digital space are definitely necessary. However, these would have to be strictly limited in accordance with the rule of law, proportionate, technically practical and empirically justified. Security does not come about through legally uncertain mass powers, biometric internet searches and ever new storage obligations. Rather than a stockpile digital surveillance architecture, Germany needs targeted, effective and controllable instruments.
BKA is supposed to help with freezing data
The states’ desire for more powers is also reflected in the law to strengthen digital investigation options of the Federal Criminal Police Office (BKA). Here, the states are calling for a new, central auxiliary structure via the police authority in order to overcome the lack of their own state law enforcement powers. In the new paragraph 10b of the BKA Act, the federal government wants to grant the BKA the right to issue preventive security orders against telecommunications providers (“quick freeze”) as long as the actually responsible state police or law enforcement authority has not yet been determined.
That’s not enough for the countries. They demand: The BKA, in its function as a central office, should issue a security order when the responsible state police are already known but are not yet allowed to collect data themselves. The BKA would act as an extended arm and “freeze” traffic data from the provider until the requirements for a regular data query according to the respective state law are met.
The background is a legal dilemma: Due to the federal government’s exclusive legislative competence in telecommunications law, the states lack the authority to issue their own security orders against network operators. In order not to have to spend time adapting the security laws of all 16 federal states, the BKA should now step in as a nationwide, central service provider for freezing traffic data.
The Office for the Protection of the Constitution should also be allowed to do more
The Federal Council wants to see this strategy extended to the Office for the Protection of the Constitution in further proceedings. Similar to the BKA, the Federal Office for the Protection of the Constitution (BfV) should also be given such a “freezing power” for the state authorities. The regional chamber cites hypothetical scenarios as justification: for example, if secret services receive vague indications of attack planning by a network whose actors and communication characteristics are still obscure. Here it is urgently necessary to have traffic data secured preventively in order to be able to evaluate it later as investigation approaches become more concrete.
The Federal Council wants to wave through another pillar of the surveillance package. He has no objections to the draft law to strengthen digital investigative powers in police work. The direction is as follows: Where the federal government hesitates or builds hurdles out of consideration for constitutional limits, the states are pushing for maximum technological freedom of action and a centralization of digital surveillance tools.
(NO)
