Government, investigators and providers want to keep IP catching secret

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In order to expose the operator of the pedocriminal forum Boystown, Telefónica Deutschland carried out large-scale shadowing of all IP addresses of users of its own o2 brand in 2020. However, it remains unclear how often this IP catching is used. Telefónica Deutschland still does not want to answer specific questions about the aforementioned process and potential others.

Netzpolitik.org reports this with reference to inquiries and investigation documents that have been evaluated and now made public. The telecom group has only stated that it cooperates with law enforcement authorities in principle and that a court order is required for the IP trap. Deutsche Telekom has told Netzpolitik.org that it has "not carried out any IP catching measures" in the past five years. The company is also "not aware of any court orders for IP catching". Vodafone's tight-lipped statement: "No comment."

The aim of IP catching is to find out which people have used a particular service on the Internet. All IP addresses of the users of the respective service are collected for this purpose. This involves very large amounts of data, as the mobile phone operators each have many millions of customers.

Too secret for the secret service

The unusual surveillance measure, which ultimately led to the identification and conviction of a Boystown operator, was ordered by the Frankfurt am Main District Court on December 17, 2020, at the request of the Frankfurt Public Prosecutor General's Office. It is not known how many other times it has requested this: There is "no legal requirement" to statistically record such deployments, say the prosecutors. Chief Public Prosecutor Benjamin Krause asked "the colleagues currently on duty" whether they could remember such a case: "This was not the case."

In its response to a question from Clara Bünger (Left Party), a member of the Bundestag, the federal government is also keeping a low profile. The government only says publicly that the Federal Criminal Police Office (BKA) was "active in the Boystown case within the framework of criminal investigations and based on a court order". Further information on this is "subject to secrecy and affects the welfare of the state to a particularly high degree because it contains information related to the working methods of the BKA".

After careful consideration, the government has, by its admission, come to the conclusion that even "the slight risk" of disclosing relevant information "cannot be borne". Even a "deposit of the information requested in these matters in the Bundestag's secret protection unit" would "not sufficiently consider their considerable explosiveness regarding the importance of the aforementioned capabilities for the fulfillment of the BKA's tasks".

Term appears in legal commentary

Even at the Federal Intelligence Service (BND), the Federal Office for the Protection of the Constitution (BfV) and the Military Counterintelligence Service (MAD), the government is not quite so strict. There, too, it believes that the question cannot be answered openly. It classifies the requested information as secret, but has deposited it for representatives of the people "for inspection in the parliament's secret protection office". It considers relevant information on the Customs Criminal Investigation Office to be classified information that is only accessible for official use and has submitted it as an attachment not intended for publication.

According to the response, the Federal Police has not carried out any IP catching measures in the past five years. The Federal Public Prosecutor General does not statistically collect the information requested. It is therefore "not possible to provide information with reasonable effort".

The published papers at least reveal that the legal scholar Wolfgang Bär first mentioned IP catching in a legal commentary. The legal expert, who has been a judge at the Federal Court of Justice since 2015, writes that the intervention is "more or less equivalent to a radio cell query, but in this case it relates to the IP addresses used instead of mobile phone data". "This is a real-time collection of future traffic data in the form of IP addresses." However, the instrument means that "a large number of people, even those who are not involved, can be affected. This results in a significant difference to IP tracking with a specific target person."

Wide range of applications

The public prosecutor's office is attempting to solve the problem of excessive violations of fundamental rights in the case of the online forum operated via a Tor Onion service: Telefónica must store all traffic and content data in the short term, it writes. However, the particularly sensitive communication content would be "immediately deleted again without being checked". This would leave only the traffic data of the relevant connections". Telefónica should compare this internally and "only provide the BKA with the inventory data" of the wanted customer.

Criticism of this approach has not gone away. "The current legal situation is not sufficient for the use of this measure," complains the Neue Richter:innenvereinigung. "There are only regulations that cover comparable measures, but not IP catching." Without a specific law, the procedure may not be used. Instead of secrecy, a public debate is needed.

Bayreuth criminal law expert Christian Rückert has also expressed "serious doubts" whether IP catching can be based on the existing legal foundations. The wide scope of the measure is problematic in terms of substantive law.

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