Surveillance: Bundestag lets police hunt burglars with state trojans for longer

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Law enforcement authorities are to be allowed to test their extended powers of telecommunications surveillance (TKÜ), including the use of state trojans, for longer in investigations into domestic burglaries. On Thursday, the Bundestag extended a clause that was initially set to expire on December 12 by a good five years until January 1, 2030. The amendment to the law on the modernization of criminal proceedings had previously been inserted by the Legal Affairs Committee at the request of the former coalition parties into another, completely irrelevant bill by the federal government. This concerns the reform of the farmstead regulations, which establishes new values for farms in four federal states.

The Bundestag has thus passed the first legislative resolution following the break-up of the traffic light last week and the announcement of new elections on February 23, 2025. In addition to the SPD, Greens and FDP, the CDU/CSU parliamentary group and the BSW group also voted in favor of the revised draft. The AfD and the Left Party group were against. Representatives of the CDU and CSU had previously emphasized that they did not want to become the stalwart of the broken traffic light system and only wanted to support a few issues that were also important to them on the basis of a list of priorities.

Evaluation hardly meaningful so far

In 2019 , the Bundestag introduced a provision into the Code of Criminal Procedure (StPO) for the first time, according to which a TKÜ can be ordered in the event of burglary in a private home that is in permanent use. To this end, the MPs added this offense to the already broad list of offenses in Section 100a of the Code of Criminal Procedure. On the basis of this list, the police have been able to carry out a source-based wiretap in many other cases, including everyday crimes, since 2017. This involves intercepting ongoing communication directly on a suspect's device using a state Trojan before it is encrypted or after it has been decrypted.

As such a measure is an intrusion that is sensitive to fundamental rights, the legislator initially limited the authorization to hunt down burglars to five years. At the beginning of October, the federal government then suggested to the "Ampel" parliamentary groups that the authorization be extended by means of a "formulation aid". The reason: the previous evaluation of the powers had been limited to 2022 due to the coronavirus pandemic, when many people were working from home. Only a review under "normal conditions", which could also be based on a longer evaluation and assessment period, would allow a comprehensive assessment of the efficiency and effectiveness of the measure in practice. Only then should a decision be made on whether the standard should be phased out or made permanent.

SPD open to permanent authority

During the debate, Carsten Müller (CDU) recalled "that it was the CDU/CSU" that had already tabled a motion a year ago. At that time, the traffic lights had not yet agreed. In less than five percent of cases of residential burglary, a TKÜ is ordered, resulting in an extremely high investigation rate. At the same time, the Christian Democrat announced that his parliamentary group would be "one of the first measures to be implemented" in the foreseeable change of government because they wanted to give the security authorities legal certainty.

The CDU/CSU parliamentary group recently tabled another motion, which was not discussed in the plenary session on Thursday. The conservatives are thus pushing for the extended powers of investigation for source tapping to be generally provided for crimes and particularly serious offenses. The Conservatives are also campaigning for the introduction of data retention for IP addresses. The German government has actually agreed on the alternative quick-freeze approach for freezing user traces. However, Federal Minister of the Interior Nancy Faeser (SPD) also continues to advocate the retention of IP addresses.

Sebastian Fiedler (SPD) emphasized that his parliamentary group could also have imagined dispensing with the evaluation and time limit in view of the available data material. The TKÜ was a promising means of clarification. The low number of cases was no surprise because the personnel "are not available to carry out extensive telephone surveillance". The legal complexity of police measures has also increased significantly. Criminal proceedings would have to be made more efficient and effective in future, "and there should be no prohibitions on thinking". Fiedler emphasized: "We will continue to campaign for IP address retention."

Deep encroachment on fundamental rights

Philipp Hartewig (FDP) spoke of a deep encroachment on telecommunications secrecy in the case of TKÜ: in view of the growing professionalism of the perpetrators, however, an extension was the right decision. So far, the evaluation had hardly been meaningful and useful. The compromise bears the hallmark of recognition of the rule of law and the problems of the victims of relevant crimes.

In view of the big announcements after the traffic light exit, she had expected "finally something that really helps the citizens", explained Clara Bünger (Left Party). Instead, "the court order has been drafted with a hidden encroachment on fundamental rights" that would bring state trojans onto citizens' devices. That is not acceptable. Bernd Schattner (AfD) also complained that almost all other motions had been removed from the agenda.

(mki)