Lower Saxony: Police to be allowed to monitor offenses in advance

Contents

The state government of Lower Saxony, with its draft amendment to the Police and Public Order Act (Niedersächsische Polizei- und Ordnungsbehördengesetz, NPOG), aims to grant the state's law enforcement agencies comprehensive new powers in the digital realm and in preventive threat management. The reform is intended to enable law enforcement officers to respond more effectively to new forms of threats, particularly in the areas of cybercrime and terrorism.

However, criticism is mounting: at its core are the lowering of the threshold for intervention and the planned technological surveillance instruments, which could lead to significant infringements of fundamental rights.

Arguably the most drastic innovation is the introduction of the concept of "pre-crime offense" in Paragraph 2, which lowers the threshold for police measures and is reminiscent of the pre-crime dystopia from the film "Minority Report." With the approach addressed by the Federal Constitutional Court in its ruling on the BKA Act, surveillance powers are to be applied at a very early stage. Provided there is a preparatory act of significant importance that constitutes a criminal offense.

Among the central surveillance measures that are to be permissible even in advance is the subsequent biometric comparison with publicly accessible data from the internet (Paragraph 32 c). This would allow investigators to compare biometric features, such as from photos or video surveillance of individuals associated with a relevant pre-crime offense, with publicly available information. For example, they could determine identity using automated facial recognition.

Opponents view this as a legal basis for extensive, indiscriminate internet crawling by the police. The use of automated data analysis (Paragraph 45 a) for threat prevention in connection with a pre-crime offense of significant importance is also planned.

Live facial recognition not ruled out

The amendment generally provides for a series of new authorization norms for the use of modern technologies that deeply interfere with citizens' informational self-determination. For example, the draft red-green state government regulates the use of so-called intelligent video surveillance. The red-green state government distinguishes between two main forms: behavior recognition and real-time biometric remote identification.

In the former, automated systems are used to recognize and evaluate patterns related to individuals. The application is to be limited to identifying behavioral patterns that indicate a planned crime or an accident. While a blanket authorization for biometric recognition is excluded, an automated prediction of potential danger situations is not.

A competence for particularly controversial live facial recognition in public spaces is also to be newly created. According to the plan, it is only permissible to avert an imminent danger to life or limb or to prevent a terrorist offense, and is subject to strict judicial review with high intervention hurdles. The EU's AI Regulation sets narrow limits here, compliance with which is likely to be judicially reviewed.

Big data analysis in Palantir style

With the introduction of automated data analysis, the police are to be allowed to use AI-supported applications to link and evaluate large amounts of lawfully collected, internal case, person, and object data. The goal is to detect and prevent dangers early by recognizing hidden patterns and relationships in complex datasets.

Although the government emphasizes that it does not intend to use software from the controversial US company Palantir, potentially similarly far-reaching big data analyses are to become permissible. It wants to ensure control through the vague principle of "human-in-the-loop", whereby the final decision on police actions would remain with the officer.

Further areas are also to experience a significant legal expansion: the draft creates legal bases for the use of unmanned vehicle systems (drones). This is to be generally open-ended. It also concerns the detection and defense against such flying objects that pose an unauthorized danger.

Furthermore, the use of mobile image and sound recording devices is to be expanded spatially and technically. In the future, under strict conditions – to avert an urgent danger to life or limb – bodycams could also be used in private residences. Technically, automated triggering of recording is also enabled, for example, via a holster signal device when drawing a service weapon, to increase de-escalation potential and evidence preservation in stressful situations.

Data transfer and concerns

As part of the adaptation to European requirements, the rules for data transmission to public and private entities, including in third countries, are also to be revised. This fuels privacy concerns regarding transfers to countries with potentially lower data protection standards.

Civil rights activists from Freiheitsfoo criticize that the project initiates a paradigm shift in Lower Saxony's security policy. The state is shifting its focus from concrete threat management to prediction. The population is being placed under general suspicion. Issues such as transparency, especially regarding the functioning of AI systems, and the risk of discrimination due to algorithmic bias remain underexposed.

The first reading in the state parliament is scheduled for Wednesday. States such as Berlin or Baden-Württemberg are currently also drafting amendments to their police laws, with AI analyses also being a focus. The federal government is working on a similar "security package".

(vbr)