German intelligence reform: Who and what exactly is affected

At the beginning of July, Interior Minister Alexander Dobrindt (CSU) presented the more than 700-page draft law on intelligence service reform. The draft was then approved by the Federal Cabinet on August 12th.

On September 24th, the Bundestag discussed the draft for the first time. The reform is the most extensive revision of the powers of intelligence services in the history of the Federal Republic of Germany.

A central aspect of this reform should be the relaxation of the separation requirement, which functionally separates the police from the intelligence services. So far, intelligence services have only been allowed to obtain and evaluate information. The prosecution of crimes, on the other hand, falls under the jurisdiction of the police. If the law is passed, the intelligence services will be given various powers that will allow them to act independently and offensively through “active protective measures”.

According to Dobrindt, this law is a necessity to deal with the threat of terrorism, extremism, espionage, sabotage, cyberattacks, hybrid attacks, destabilization and “foreign powers”. According to the Interior Minister, the intelligence services would have to become “real secret services” for this to happen. And the relaxation of the separation requirement is part of this. In countries like the USA, independent offensives by the secret services have long been part of everyday life.

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There are different forms of criticism of the draft law: The domestic policy spokeswoman for the Die Linke party, Clara Bünger, emphasizes the historical significance of the separation requirement. It is “the direct lesson from the crimes of the German fascists.” According to Bünger, anyone who wants to repeal this command would want “a new German secret police”. In her speech, she also referred to the long-obscure involvement of the Office for the Protection of the Constitution in the NSU murders, which was met with several heckles.

The statements of the other speakers were much less critical: the deputy leader of the Green Party, Konstantin von Notz, expressed understanding for the reform. However, he also considers the powers that this draft provides for the protection of the constitution to be “excessive”.

There are also concerns from the SPD: Daniel Baldy, a Social Democratic member of the German Bundestag, said that there is a need for improvement with regard to those subject to professional secrecy such as journalists and doctors. On the whole, he believes the law is the “right answer”.

“Today we are bringing the largest amendment to the law governing our country’s intelligence services into parliamentary deliberation.” This is how the Federal Chancellery Minister Nina Warken (CDU) describes the intelligence service reform. But what specific changes will come with this law?

Germany has a domestic intelligence service in the form of the Federal Office for the Protection of the Constitution (BfV), a foreign service in the form of the Federal Intelligence Service (BND) and a military secret service in the form of the Military Counterintelligence Service (MAD). This reform would bring about major changes, especially for the BfV and the BND.

So far, the BfV has only been allowed to observe cyber attacks and disinformation campaigns. Now he will soon be authorized to intervene actively: the Office for the Protection of the Constitution will in future be able to redirect cyber attacks, manipulate supply chains to prevent weapons production, and also specifically spread false information. In the event that a threat is attributable to a foreign actor, the BND would have similar powers.

The press spokeswoman for the Security without Surveillance network, Maya Mosch, criticizes the planned reform. "With the reform, Dobrindt wants to allow the secret services to exercise police power - power that has so far been deliberately kept separate. Power in the hands of services that not only have an unresolved Nazi past, but whose machinations in recent history, such as with the right-wing terrorist NSU complex, have not been sufficiently clarified."

In addition to direct intervention, the previous areas of responsibility, i.e. information gathering, should also be further expanded: measures such as biometric data comparisons or tapping into public cameras and Internet nodes should be permitted.

With this law, the Office for the Protection of the Constitution could gain access to the material from all surveillance cameras from kiosks, hospitals or even shopping centers, for example. The prerequisite for this is that there is a “threat that is at least significantly worthy of observation”, but this is only of limited significance as to who and how many people would actually be affected.

The term “significantly in need of observation” is also very broadly defined in the legal text and applies “if crimes are committed in pursuit of a target”. Which crimes are included is not defined in more detail and could already refer to the sticking of stickers.

The concept of threat also remains quite vague. Handling can be classified as a threat if force was used to pursue the target. According to the German lawyers' association, "the concept of violence [...] in criminal jurisprudence has been decoupled from everyday use". In practice, this can also refer to, among other things, peaceful blockades or the taping of hands if the actions result in a traffic jam.

In addition to the unclear hurdle that tapping into cameras poses, it is also unavoidable that, in addition to “targets,” countless non-affected people are also included in the surveillance. The Society for Civil Rights writes in a statement: “In fact, all people who are in Germany are recorded by such video surveillance.”

Similar to what is already possible with the Berlin police, for example, the Office for the Protection of the Constitution should in future be able to secretly enter apartments in order to take “intelligence measures” there: specifically, this means installing spy software or hacking “information technology systems” such as cell phones or laptops.

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The intelligence services also want to use commercial data from advertising databases in the future. From the perspective of the intelligence services, this is already legal and would therefore not require any further legal regulation.

This commercial data is left behind every day when you use the Internet. This includes, for example, meter-precise cell phone locations or information from social media. This data is first obtained and evaluated by commercial traders before it is then sold.

It is still questionable whether intelligence services can actually legally use this: the terms and conditions usually only mention sales for advertising purposes and not for secret services. At the same time, it can be assumed that similar procedures have been in practice for a long time in reality.

Even without commercial data, this law would result in intelligence services having to handle vast amounts of data every day. In order to do justice to this, the reform should also expand the powers to use artificial intelligence (AI) for data analysis. In order for AI to be used in a personal context, an “at least significant threat” is required here too. But even an increased level of isolation through cybersecurity measures could certainly be seen as an indication for closer observation. This could be a big problem, especially for left-wing activists or investigative journalists.

“What the government has decided here is a step towards a kind of secret police with excessive powers,” explained Hartmut Brückner for the federal executive board of the Red Aid Association: “This takes the restriction of basic and civil rights one step further: the government is deliberately steering towards the authoritarian surveillance state. Opposition groups and left-wing activism are particularly in the firing line.”

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In many places, the planned measures have a particularly strong impact on the privacy of those involved and those not involved. In the future, sensitive data from doctor's offices - or even car repair shops - could increasingly come into the focus of the authorities.

Medical confidentiality is intended to ensure that patients feel safe in disclosing sensitive information that is necessary for treatment. However, this obligation of confidentiality is now to be called into question by the draft law. In the future, there should be a balance between the interest in information and confidentiality. Carsten Dochow, head of the legal department of the German Medical Association, warns in this context: "If the most intimate information can be affected, this should not be left to a weighing decision by an authority. There must be absolute protection so that trust between doctors and patients can arise at all."

As already mentioned, journalists would not be exempt from surveillance. In order for them to conduct effective research, it is often necessary that they can guarantee confidentiality to their sources or informants. The planned interventions could make this much more difficult or even prevent it in the future.

Even car repair shops could become a source of information in the future. Relevant information could be forwarded to the Office for the Protection of the Constitution via telemetry data. The President of the Central Association of the German Motor Vehicle Trade, Thomas Peckruhn, warns that “car dealerships and vehicle repair shops will become an extension of the intelligence services.”