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Privacy vs Security

DW staff (msh)November 6, 2008

In an effort to enhance national security, Berlin has approved a new law allowing the Federal Criminal Police to secretly investigate personal computers. Critics warn the legislation is a violation of the constitution.

A magnifying glass over a computer screen
Considering their history, Germans are wary of state surveillance and breaches of privacyImage: picture-alliance / dpa

Germany's Grand Coalition government has reached an agreement on the finer details of the so-called BKA (or "Federal Criminal Police Office") Law. It will allow German security services to monitor suspected civilians more closely, without people knowing that they're being watched.

Significantly, it also gives the Federal Criminal Police for the first time the right to act preventatively, foiling crimes before they happen.

Online espionage has been one of the biggest sticking points during debates in Berlin. Under the new proposal investigations can still monitor online activities secretly using so-called Trojan software, but only if a judge deems that there is good reason to do so.

However, online evidence cannot be used in court if someone's private life were unduly invaded to obtain it. A specially designated data protection agent is to be called in for sensitive cases.

In a compromise with the Social Democrats, this part of the law will only be introduced temporarily. It is to expire in 2020, but be critically re-examined after five years.

A delicate balance

Berlin has been divided on this issue for months, seeking a balance between an effective crime-fighting law, and one which protects people's right to privacy, which is guaranteed by the German constitution.

A copy of the German constitution
The opposition says the law is unconstitutionalImage: dpa - Fotoreport

"These were tough talks, but they were well worth it," said the deputy chairman of the center-right CDU-CSU alliance, Wolfgang Bosbach in an interview with news agency AP. "We have raised the legal hurdles for some forms of personal investigation, but this is still a law for the real world, and the Federal Criminal Police Office will be able to use it to fight terror effectively."

The proposed law allows German investigators additional methods of clandestine observation on their suspects: video surveillance, bugging telephones, searching homes, and even requesting data from third parties -- all without the observed citizen's knowledge or permission.

A breach of the constitution?

However, while the ruling parties may have reached agreement after months of bickering, they are still unlikely to get approval from opposition parties.

"Legally, this is a completely unacceptable result, which the Free Democrats will reject in parliament,” said Free Democrat deputy chairperson Sabine Leutheusser-Schnarrenberger. In an interview with the Neue Osnabrücker Zeitung, Schnarrenberger said that online searches take so long to complete that urgent cases which would yield results are impossible to imagine.

"It is essential that online investigations are subjected to the most effective judicial checks due to the severity of violating the constitution," said Schnarrenberger, who has previously served as Germany's justice minister.

Parliament will vote on the proposal next Thursday. If approved, the law could come into effect by the end of the year.