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Why Germans worry about expanded police powers

Rebecca Staudenmaier
July 7, 2018

Stun guns, WhatsApp surveillance and expanding police operations: The NRW government says the measures will boost security in Germany's most populous state. Legal experts say otherwise. DW breaks down the draft law.

Police in North Rhine-Westphalia patrol the streets during a Kurdish demonstration in Cologne
Image: picture-alliance/dpa/H. Kaiser

The government in Germany's most populous state, North Rhine-Westphalia (NRW), has come under fire for proposed legal changes that would grant police more powers.

NRW's previous government was criticized for a number of security failings, including how authorities handled the mass sexual assaults on women during the 2015-16 New Year's Eve celebrations in Cologne, as well as their handling of the Berlin attacker, Anis Amri, who was under surveillance by state police.

The state's new ruling coalition of the conservative Christian Democrats (CDU) and the business-friendly Free Democrats (FDP) have put forth widespread alterations to police powers.

DW takes a look at six of the biggest and most controversial changes that would go into effect if the draft law is approved.

1. Vague wording for 'imminent danger' 

One of the key points of the new law concerns expanding the opportunities for police to launch operations. The state government has proposed adding the terms "imminent danger," "imminent terrorist danger" and "potential offender" [in German, "Gefährder"] to the state's police law.

Until now, the law has only made a distinction between concrete and abstract danger. Under the current rules, police can take action if they have evidence showing concrete plans for a crime. Should the law go into effect, police would be allowed to launch an operation if they believe there's the threat of a crime or attack.

The state's Interior Ministry argues that these amendments are needed so that police can intervene earlier to prevent terror attacks.

Amnesty International and politicians, including FDP state parliament members within the governing coalition, are particularly critical of the broad definition of "imminent danger." They argue that the term dangerously lowers the threshold for police operations and possibly violates rules set out by Germany's Constitutional Court.

2. Longer preventive custody

The new law would also lengthen the detention of "potential offenders" — also known as "preventive custody" — before they have committed a crime.

Under the new rules, a person whom police accuse of involvement in an imminent terrorist threat could be detained for up to one month. The current maximum is set at 48 hours.

The new law would allow other people whom police accuse of posing threats to public safety to be held for seven days. Authorities could also hold people for seven days while checking their identities. Currently, such suspects can only be held for up to 12 hours.

NRW Interior Minister Herbert Reul defended this measure: "If we have a person we know to be dangerous, then we have to get them off the street quickly."

Legal experts and Amnesty International have pointed out that people being held would not have committed crimes, and would receive fewer protections than official suspects. For example, they would not be provided with public defenders.

3. Video and WhatsApp surveillance

The law calls for increased livestreamed video surveillance in public spaces where crimes are committed (or suspected of taking place) and expanding telecommunications surveillance to include laptops and smartphones.

Police would discreetly download spy software onto the smartphones and laptop computers of people under surveillance. The software will then enable authorities to access encrypted data from messaging applications like WhatsApp. These measures are to be used primarily for people suspected of planning a terror attack.

Data protection experts have raised the alarm, saying the measures potentially violate the self-determination rights of non-suspects who would be incidentally surveilled without themselves being suspected of crimes.

FDP and Green politicians have also pointed out that there's no Trojan software program that conforms to the strict requirements of the Constitutional Court, meaning the proposed changes are either purely symbolic or potentially illegal.

Everything under control?

4. Stop and search police controls

Should the new law be approved, police in NRW would be allowed to carry out stop and search controls — reworded in the draft law as "strategic searches" — on anyone in a certain area for up to 28 days without having a concrete suspicion that the person had committed a crime.

Police will be allowed to stop and question anyone, as well as ask for identification. The measure is intended to prevent crime and to "prevent the unauthorized stay" of certain people. Authorities will also be allowed to visually inspect automobiles and personal items such as purses or bags.

NRW government officials say the move will help them combat cross-border crime and human trafficking to and from Belgium and the Netherlands.

Amnesty International has warned that the searches could lead to discriminatory police controls and that people who don't look "typically German" will be targeted, including German citizens.

A taser is used in a demonstration by a police officer in Berlin
Rights groups warn that tasers can cause serious physical harmImage: picture-alliance/dpa/R. Jensen

5. Ankle monitors

In the case of an imminent terror threat, police would be allowed to keep tabs on potential suspects by having them wear electronic ankle monitors. Police will also be allowed to use the ankle monitors in stalking cases as well as for "high-risk cases" as a last resort.

Experts question whether the ankle monitors can prevent a terror attack or dissuade someone from carrying out any other act of violence. Germany's police union has also said the technical reliability of current ankle monitors haven't been tested enough.

6. Stun guns added to weapons list

Along with guns and truncheons, police on patrol in NRW would be allowed to carry electroshock stun guns, which police say would give authorities more options to detain people who are violent or thought to be mentally ill or physically superior.

The opposition Greens want to place stun guns in the same weapons classification as guns and make sure that police are thoroughly trained in their use. Amnesty International has criticized the use of stun guns, pointing to the injuries and deaths that have resulted from their use by police, particularly in the United States.