The fact that state investigators secretly hack into cell phones with spy software is spreading more and more in Germany. Now that the police now have the relevant powers nationwide, the protection of the Constitution will soon follow, which does not see itself limited by any judicial reservation. The CSU-led Federal Ministry of the Interior and the SPD-led Federal Ministry of Justice have been arguing about the details for more than a year. Their agreement, it is now heard, is taking shape.

There are two methods of digital espionage. The first is telecommunications monitoring at the source, the “Quellen-TKÜ”. What is meant is that agents of the protection of the constitution penetrate directly into a smartphone or a computer. With the help of an infiltrated malware, a so-called Trojan, they intercept ongoing communication, such as phone calls or messenger messages, even before they are encrypted by the messenger program.

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One restriction is important here: the state hackers are not allowed to take full control of the device and rummage through the entire store, this would be an “online search”, which is considered to be a much stronger intervention. Technical experts doubt again and again that the rule of law can really prevent the agents from doing this in the end. In the federal government, however, the clear distinction is adhered to.

The second method, which has meanwhile been agreed in Berlin, is a new creation: the so-called “Quellen-TKÜ plus”. The idea is that the agents not only read the ongoing communication, but are also allowed to research old communication retrospectively from the moment this espionage measure is approved. This means access to saved emails and chats. The investigators are legally treated as if they could have started immediately after placing their order – and not only lost time through the technically complex infiltration of the device.

The designated inspectors are not considered particularly snappy

So the times change, so the political standards shift: When the first political demands for the then new investigative instrument of the Trojan horse started, in 2008, the SPD, which was already part of the federal government at the time, suggested that at least a parliamentary control body should be set up , which controls the use of such secret hacks confidentially – similar to the supervisory body of the Bundestag, which generally controls the work of the secret services. At that time, even the President of the Federal Criminal Police Office (BKA) was open to it.

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At the moment, the only discussion in the federal government is how a “moderate expansion” of the existing control could look. This is what it says in the coalition agreement between the Union and the SPD – as a condition of the SPD for the protection of the Constitution to receive its impatiently awaited new monitoring instrument. Specifically, it is now planned that the G-10 Commission, which was previously responsible for telephone surveillance by the Office for the Protection of the Constitution, will also take over control of this new, digital surveillance instrument. This is a small group that only meets every four weeks, mainly made up of former members of the Bundestag.

This body is not considered very snappy. When the Federal Constitutional Court demanded in its ruling on the BND law in May that the control of secret service work in Germany as a whole had to be professional and “not voluntary”, the – voluntary – members of this body were allowed to feel that they were being meant. Now there should be more technical and legal expertise there, i.e. more staff. And: Even in urgent cases, the Ministry of the Interior should not simply bypass the G-10 Commission in the future and be allowed to personally authorize the use of Trojans. That was what Seehofer’s house wanted. But that’s not how it should turn out.

The question then remains unanswered under what conditions the Office for the Protection of the Constitution may pass on the data obtained to the police or other services. That’s a sensitive point. Here, too, the Federal Constitutional Court recently issued guidelines. One should not simply hand over espionage results without stipulating very precisely – also legally – for which purposes what can be used, according to the dictum from Karlsruhe.

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As a precaution, the Ministry of Justice therefore wants to severely restrict the transfer of data from Trojan horse actions by the Office for the Protection of the Constitution abroad. After all, it is difficult to control what foreign secret services would do to them. The Ministry of the Interior objects: The secret service business is an exchange business. And Germany would be worse off on this marketplace.