Black-Red coalition wants to massively expand surveillance powers

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The CDU/CSU and SPD want to massively expand the surveillance powers of the security authorities – and, if the worst comes to the worst, at the expense of data protection. This is according to a paper by the CDU/CSU and SPD negotiating group on domestic and legal policy.

In view of the changed security situation, the "tension between security policy requirements and data protection regulations" must now be "rebalanced", according to the paper. The only caveat: "This also requires sensitivity on the part of the security authorities".

Zombie data retention

However, it remains to be seen whether sensitivity will actually be enough if new possibilities are introduced in almost every nook and cranny as planned. The eternally controversial data retention for IP addresses and port numbers is to return "proportionately and in accordance with European and constitutional law". Only the specific duration is still being discussed.

The CDU and CSU also want to allow the security authorities – - probably referring to the German intelligence services Federal Intelligence Service (BND), Federal Office for the Protection of the Constitution (BfV) and Military Counterintelligence Service (MAD) - to use source telecommunication surveillance (source TKÜ), also known as the federal Trojan horse. The CDU/CSU also wants communications services to be obliged to decrypt encrypted communications in individual cases. This would also affect messengers such as Whatsapp, Telegram and Signal. However, these two wishes of the CDU/CSU have not yet been agreed and are still to be discussed by higher-ranking party officials.

However, it has already been agreed that the security authorities should be allowed to carry out a "subsequent biometric comparison with publicly accessible internet data" using artificial intelligence (AI) in certain cases. However, digital sovereignty should be preserved in the process. The automated recognition of suspects at train stations, airports and "crime hotspots", another wish of the CDU/CSU, is still controversial. The SPD and the CDU/CSU, on the other hand, have agreed on a further retention measure: automated license plate matching should be possible – and "in recording mode". In other words, it can still be retrieved afterwards.

Active cyber defense and critical protection

In view of the no longer entirely new situation with Russia and other threats, the prospective coalition partners want to further strengthen the Federal Office for Information Security (BSI). The long-disputed authority for "active cyber defense" is also to be created.

To better protect critical infrastructure, the NIS2 amendment to the BSI Act, which failed shortly before the election, and the Kritis umbrella law are now finally to be implemented. The CDU/CSU and SPD are talking about "overall defense" as a "military and civilian task", coordinated by the federal government: "We are expanding cooperation between security, civil defense authorities and the Bundeswehr."

Intelligence services to be more cyber

According to the paper, the intelligence services are also to receive significantly more IT capabilities and the necessary resources. To this end, a "new specialized technical central office including the ZITiS" is to be set up. This "Central Office for Information Technology in the Security Sector" was launched in 2017 and has not yet been given its own legal basis.

The home affairs negotiators also want to try to crack down in other areas: "We are committed to stronger regulation of algorithms in DSA that promote radicalization in the EU," the results paper states. The negotiators do not reveal exactly how this is to work in the paper, which is longer than the working groups were actually allowed.

This is also due to the justice politicians, who also want to allow more: Radio cell searches should become easier again, telephone surveillance of burglars should be permitted permanently. Whether chat control, which is also controversial at European level, and the associated client-side scanning will be supported from Germany in future, still has to be clarified by the higher authorities – The SPD has positioned itself against this.

Problem of the hacker paragraph

The Black-Red coalition wants to find a solution to the still unresolved problem of the hacker paragraph: "We will create legal certainty for IT security research in computer criminal law, while preventing opportunities for abuse," the paper states. However, consideration for legitimate IT security research was already promised when the problematic sections 202b and c were introduced in the Criminal Code, but was not kept in legal practice $(LB4533651:not kept).

"Appropriate remuneration" for "necessarily used works" should ensure that generative AI does not disenfranchise authors, according to the negotiators' declaration of intent. To what extent this is not already the legal situation and whether European law would otherwise have to be amended is not mentioned in the paper.

However, it does mention the old dispute over streaming portals and artist remuneration: The potential German government wants to strengthen transparency and traceability – This is to be guaranteed by an "inalienable right to a regular billing check".

With the help of automated interfaces to platforms, law enforcement authorities should be able to track down "digital perpetrators of violence" more quickly and block accounts. The negotiating parties also want to solve the problem of "anonymous hate accounts".

In addition, tougher action is to be taken against digital stalking: GPS trackers are to be included in the relevant paragraph and tracking apps will have to regularly ask users for their consent.

Tough times for civil rights

The proposals of the Home Affairs and Law working group, which traditionally carry relatively strong weight with the CDU/CSU and SPD, must be coordinated with the other working groups and their results.

However, it is certain that the Black-Red coalition will have entirely different discussions than the traffic light coalition, particularly in the area of internal security, now that more and more negotiation results are available. The Federal Constitutional Court in Karlsruhe will not be able to complain about a lack of work once this coalition takes office.

(ds)