The Federal Cabinet passed the amendment to the Constitutional Protection Act on Wednesday. This means that the German intelligence agencies and the MAD and BND secret services will in future also be able to use software to monitor suspects, the so-called state trojan. Police authorities are already using this telecommunications surveillance method, known as the Quelle TKÜ. In a statement from his ministry, Federal Interior Minister Horst Seehofer calls the law an “overdue step in the fight against terrorists and militant extremists”. The country needs a protection of the constitution that can see and hear even in the digital age.

The opposition accused the SPD of agreeing to a bad deal. She suspects that the SPD agreed to the law after a long struggle to get a controversial study on racism in the police from the Union. The Green Network expert Konstantin von Notz told the SZ: “This deal is bad for our civil rights and is directly at the expense of our constitution.” Instead of waiting for a pending decision by the Federal Constitutional Court on the use of the state trojan by the police, the government is now expanding “the highly controversial instrument” to include the secret service, according to von Notz.


Cryptography has become commonplace

The surveillance of traditional telecommunications, such as the telephone, has long been part of the repertoire of the domestic secret service in order to track down enemies of the constitution. But since communication shifted from landline phones to cell phones to messengers, this authorization rarely helps. Messages on Whatsapp and in other messenger services are end-to-end encrypted, cryptography, which previously only played a role in the military and secret services, is now available to everyone on smartphones: Whatsapp messages, for example, are encrypted on the sender’s phone Over the lines from Vodafone, Telekom or O2 only a salad of letters flows. The message is not decrypted until it reaches the recipient. Deriving the communication to Internet nodes or asking the network operator no longer helps.

The state Trojan is supposed to close the information gap for the authorities that has arisen for the mass market through encryption. The small program is secretly played on the target person’s phones, where the messages are tapped and diverted before they are encrypted. This is much more complex than tapping a telephone line, but it is also potentially much more powerful. Once the program has been installed on a target’s smartphone, the intelligence agencies could not only see the communication that was taking place, but all of the data stored on the cell phone.

There are limits to surveillance

The Ministry of the Interior would have wanted the so-called online search for the amendment – access to all data on the phones. The SPD can claim to have prevented this deeper invasion of privacy. Protection of the Constitution is now only allowed to view communication from the time the TKÜ was ordered. However, depending on when the Trojan was deployed, this can also be far in the past. Critics ask who (besides the law) is preventing the protection of the constitution from looking back a day further in the WhatsApp history than is actually permitted.


The Federal Minister of the Interior has prevailed on another point: The new law stipulates that the network operator must support the authorities in installing the sniffer software. This is important, because otherwise the Office for the Protection of the Constitution would have to steal the phones of the target persons and prepare them in a targeted manner. Now, for example, the cell phone provider can be obliged to send an update with the malicious program.

The TKÜ wishes of the Federal Office for the Protection of the Constitution are to be controlled by the G-10 Commission (named after the Basic Law Article 10), which is already responsible for matters of the secret services and is to be increased to a total of ten members. In addition, a technical advisor should support the committee members.

Ulf Buermeyer, chairman of the Society for Freedom Rights (GFF), clearly criticizes the draft law that has now been passed. On the one hand, the control by the G-10 commission is much more holey than with the TKÜ for the police authorities, where a judge always has to agree and the results of the investigation appear in files. On the other hand, according to Buermeyer, the law is actually unnecessary. Because the TKÜ is not permitted for preliminary observations, as the constitution protection is supposed to carry out. If an actual crime is suspected, the police could just as easily investigate. The GFF is therefore already thinking about a lawsuit should the law come into force as planned.