BKA law: Black-Red wants to allow police "precautionary" data retention

With a package of amendments to the law governing the Federal Criminal Police Office (BKA), the SPD-Black-Red coalition wants to implement the provisions of a ruling by the Federal Constitutional Court in October. Among other things, the judges in Karlsruhe declared the authority to “preventively store” personal data of suspects in the police information network (PIV) to be incompatible with the Basic Law. According to the coalition parliamentary groups, however, the reasons for the unconstitutionality of the provision do not concern the core of the power it grants, but rather individual aspects of its legal structure.

According to the parliamentary group's draft, the PIV is an “important component of the exchange of police information in the German security architecture”. The network is a central and joint data platform of the federal police authorities, such as the BKA and the federal police, as well as the federal states. Its main purpose is the exchange of information and intelligence to make the fight against crime more efficient.

According to the explanatory memorandum, precautionary, i.e., preventive, data storage, which is now to remain possible in principle, is characterized by the fact that “it takes place after the immediate case has been concluded and thus the purpose underlying the original collection measure has been fulfilled”. This is a special case of data being used for a different purpose. The Constitutional Court stated that the key points for a constitutional design of this approach in the PIV are that appropriate purposes, thresholds, and time limits for retention must be provided for.

Scope for police forecasts to grow

According to the initiative, it is essential for the police to be able to access data on convicted people, suspects, accused persons and other individuals in the PIV – for the purposes of criminal prosecution, prevention and averting danger. Otherwise, there is a risk of gaps in the knowledge of law enforcement officers. To implement the Karlsruhe requirements, the draft law is to include a new Section 30a of the Federal Criminal Police Office Act, which contains the specific requirements for the further processing of personal data. Above all, this includes a negative prognosis as a prerequisite for the preventive storage of suspect data.

With the amendment, the coalition also wants to extend the scope of application for the individual forecasts provided for by law in the case of the preventive storage of data on suspects and accused persons in the PIV. The statutory foresight corresponds to the requirements of the court: there must be a sufficient probability that the people concerned have a criminally relevant connection to possible criminal offenses and that the stored data could make an appropriate contribution to their prevention and prosecution. This requires factual indications. The type, severity, and manner in which the previous offense was committed, as well as the personality of the person concerned and their previous criminal record, could be considered as predictive criteria.

The amendments to Section 77 will create a “differentiated regulatory concept for the retention period,” it continues. Only in the case of particularly serious criminal offenses is a review period of up to five years for the removal of data from adults justified; otherwise, this may not exceed three years. For the comparable periods under the Federal Data Protection Act, the PIV stipulates that personal information stored for preventive purposes may not exceed two years for adults and one year for juveniles and children.

Contact persons can continue to be followed

According to a second draft bill, the power to use special means of data collection against contact people of suspects, which was criticized by the judges in Karlsruhe, is also to be retained – with stricter conditions. According to the two groups, without this option for secret surveillance, the BKA would lose an important instrument for preventing terrorist attacks. Important tools include long-term observation, surveillance using technical means outside of homes and the use of undercover investigators and trusted individuals. In justified individual cases, it may also be necessary for contact people of terrorist troublemakers to be the addressees of such powers.

The Federal Constitutional Court has set a deadline of July 31 for the new rules. The reform is “lean” because the legislator “urgently needs to do this very quickly”, emphasized Sebastian Fiedler (SPD) during the first reading of the drafts in the Bundestag on Thursday. Anyone who only comes into fleeting contact with suspected terrorists will be left out. However, the coalition also wants to bring the BKA up to date with the “cyber-specific threat situation” and “equip it with the best possible powers overall”. An AfD speaker announced that the opposition parliamentary group would agree.

Lukas Benner let it be known that the Greens would rather not stand in the way of the procedure. However, he raised whether the planned equal treatment of suspects and accused persons was constitutional. At the same time, the interior politician regretted that the CDU/CSU parliamentary group had rejected a major, well-balanced reform of the BKA law during the “traffic light” period. Overall, the CDU/CSU are planning a “frontal attack on fundamental rights”. Jan Köstering (Left Party) warned against “further stockpiling of data” and spying on contact persons. Black-Red always go as far “as the Federal Constitutional Court allows”. This regularly leads to unconstitutional standards, which shift fundamental rights. In the further proceedings, the Left Party will primarily look at the deletion periods.

(kbe)