German investigators are hoping to gain greater access to telecommunications data in order to combat terrorism. But there is controversy over the spyware they want to use to keep tabs on private computers.
The application can search a hard drive and download its contents in a matter of minutes. Pages viewed on the internet are saved as screenshots, webcams and microphones can be activated remotely, and all keystrokes are automatically logged. Every Skype conversation can be recorded before it can be scrambled. If necessary, access to the computer can be re-established at any time, in order for new spy Trojans to be downloaded onto it. And the computer's owner will never be the wiser.
While the German police and intelligence agencies are keen to exploit the possibilities that the creators of such spyware offer them, data protection and human rights activists have already come to the conclusion that it goes too far. In 2008, the German Constitutional Court put strict limits on the use of this software, on the grounds that privacy is strictly protected by the constitution.
Now German law says that a computer can only be placed under surveillance if lives or freedoms are under direct threat, or if the state as a whole or essential resources for the population are in danger. In order to get a warrant, security forces must present concrete evidence or suspicion before anyone's privacy may be invaded. This would be the case if, for example, a religious or political extremist distributed hate speech via the internet or travelled to countries where there are known terrorist training camps. Only once a court order has been granted may a computer be put under surveillance.
Even then, any data that affects the personal life of the person under surveillance cannot be stored. On top of this, all technical changes made to the computer have to be fixed once the surveillance operation comes to an end. All measures have to be logged minutely, and the police or intelligence agency in question must ensure that a third party cannot use the loopholes they have created to access the computer.
Suing the federal police
According to the German Pirate Party, the security forces are not sticking to these laws. Together with the collective the "Chaos Computer Club," the Pirate Party ensured that the first version of the spyware application that the police used was outlawed by uncovering its security flaws. Since then, the federal police has been developing new software in a specially established "center of competence." Since this could take one or two years to complete, investigators are now hoping to buy an "interim solution" on the market.
"But the software they want can do more than the version that has already been banned," says Markus Barenhoff, deputy chairman of the Pirate Party. He explains that the spyware allows the user to actively change something inside the computer under surveillance. "It would be possible to remotely download incriminating material onto someone's computer," Barenhoff says .
The police have expressed irritation at the mistrust such attitudes betray. Rainer Wendt, chairman of the German police union (DPolG), told DW, "Some politicians think they are protecting civil rights when they are in fact preventing the police from protecting civilians from attack."
He says that modern investigative methods are necessary, and that it is in the police's interests to obey all the laws governing surveillance - after all, if a suspect were ever to go on trial, the police would have to be sure that it was legally obtained for it to stand up in court.
Wendt rejects fears about an encroaching police state, pointing to the example of North Rhine-Westphalia, Germany's most populous state, where the police is entitled to install video cameras wherever crimes are suspected. He claims that they are currently only being used in five criminal hotspots in the entire state. "That shows how restrained the police is when it comes to surveillance," he said, adding that it prefers to use other methods, such as undercover agents, to investigate crime.
Wolfgang Bosbach, chairman of the German parliament's domestic policy committee, and member of Angela Merkel's Christian Democratic Union (CDU), has said that while the parliament does not want a police state, extremists must be prevented from secretly using the internet to communicate. The center-left Social Democratic Party (SPD) has a similar position, but the more libertarian Free Democratic Party (FDP) and the socialist Left party have both expressed concerns. The Left party's Dagmar Enkelmann recently pointed out that the police is receiving more and more orders from intelligence agencies.
Meanwhile the row over the German police force's power is escalating. Last week, the Constitutional Court imposed new restrictions on anti-terrorist laws, while demonstrations took place on Saturday (27.04.2013) against telecom providers' rights to collect and pass on data to security forces.