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How to build a surveillance state in 69 years

Since 1949, government coalitions have passed at least 70 laws that allow surveillance in a variety of ways. Travel data is recorded, communication is monitored, identities are established and stored in various databases. The “Chronicle of the Surveillance State”, which we published a year ago, is intended to document this development.

Lennart wrote this article in preparation for his lecture at the “This is net politics” conference. On September 23, he gave a somewhat longer lecture on the same topic at the Datenpuren in Dresden. The slides are available here. At the end of the article there are links to the data records.

The chronicle lists all surveillance laws. An analysis of these very laws now follows. This is not about the effectiveness of the laws, as Peter Schaar impressively examined. Rather, this analysis aims to find out which parties enact surveillance laws, what patterns they use to do so, and to what extent the current status quo means that we live in a surveillance state.

First of all: The laws from the Chronicle are a development based on the rule of law. It doesn't take a conspiracy theory to explain all of this. Ultimately, it can be broken down into decades of rule by reactionary to conservative governments. Just as little are these governments guided by overpowering beings, but made up of people who act according to what they understand their mandate to be. Even if this Law & Order means.

Clear increase in surveillance

First, let's look at which parliamentary terms most laws were passed. In the first electoral term, the coalition of CDU / CSU, FDP and DP passed laws that regulated the work of the Federal Office for the Protection of the Constitution and the police. A law followed that introduced the identity card. Then few laws followed for 40 years. This can be attributed to the fact that the federal states are responsible for security in accordance with federalism. A number of police laws were enacted there, which are not included here.

At the end of the 1980s, legalization began, which resulted in every instrument and every measure being laid down in a separate, large or several, smaller laws. In 2006 Heiner Busch attributed this effect to higher data protection guidelines and explained it for Civil Rights & Police / CILIP as follows:

Even after 1990, the spiral of legalization continued to turn - mostly following the same pattern: the police or the secret services “discover” a new technology or investigation method or expand the scope of already introduced methods. You do this initially by referring to the fund of the already existing norms of intervention. The legal framework is stretched or overstretched until those affected complain and the courts - especially the constitutional courts - complain about the lack or inadequacy of the legal basis. The legislature goes to work and pushes a regulation. In the end, everything is more or less neatly organized. And precisely because this is the case, the legalized new technology can now become routine. It may be used much more frequently than was the case before the statutory regulation. At best, the result is a standardization of the new methods that prevents excessively scandalous excesses.

The 14th electoral period (nine laws) under the SPD and the Greens with Otto Schily as Minister of the Interior as well as the 16th (19 laws) and 18th (18 laws) electoral periods under a grand coalition were remarkable. The FDP, which formed a coalition with the Union in the 17th electoral period (eight laws), can actually be understood as a corrective under civil law for the time being. However, your contribution to the expansion of surveillance, as is currently the case in North Rhine-Westphalia, should not be swept under the table.

Three parties have particularly distinguished themselves in the expansion of surveillance: the CDU and CSU with participation in 54 surveillance laws and the SPD with participation in 48 laws. In third place is the FDP with 19 laws, followed by the Greens with 11 laws. Parties from the early days of the FRG, such as the right-wing radical German party, are not included in this analysis, as they no longer play a role in today's party landscape.

Purely opposition parties at the federal level like the Left Party obviously play no role in expanding surveillance, but in working against these authorizations of the services, as we also report. The latest opposition party, Alternative für Deutschland, is not characterized by any well-founded surveillance criticism or protection of minorities. This is important because surveillance hits the weakest in society over and over again.

[The above statistic with “Surveillance Laws per Term” does not correlate with the number of laws per term. That speaks in favor of an increase in surveillance. We are nevertheless aware that unfortunately there are still no surveillance laws from before 1990. Your donation enables us to do more in-depth archive research to change this!]

1st place: police

But who are the beneficiaries? The chronicle focuses on the two secret services - the Federal Intelligence Service and the Protection of the Constitution - as well as the police. The Military Counterintelligence Service (MAD) is not examined in more detail due to its lack of relevance. We have now gone through all the laws and looked to see which of these three authorities got more capabilities through the respective law. The first place (police) shows where the focus is currently: internal security.

Believed dearly by interior ministers and other legislators, the police are currently experiencing a strong armament. In several state police laws, instruments such as an extended DNA analysis, the state Trojan and a separate V-person system are to be made possible. We reported.

Second place (protection of the constitution) and third place (Federal Intelligence Service) could almost be divided, the gap is so close. This is because explicit secret service laws are sometimes enacted for both services (plus the MAD) at the same time. The fourth category is used by other state authorities such as the residents' registration office, employment office, etc.

Identification, communication, finance, travel

It is also interesting which areas of everyday life are particularly addressed by these laws. To do this, we categorized the chronicle into the categories “Identification”, “Communication”, “Finances” and “Travel”.

The first category includes all 42 laws that aim to identify a specific person, such as the law on the uniform design of residence permits for third-country nationals. This also includes measures in which the demography of Germany is to be recorded, such as the 1987 Census Act. This endeavor established itself early on and is still on an upward trend today.

The 21 laws in the "Communication" category are aimed at the technical monitoring of means of communication, such as the data retention of 2008. Here, more laws came about only with the massive spread of electronic means of communication from the 1990s.

The six laws on financial transactions should, for example, fight money laundering or increase tax compliance. Due to their low frequency, they are of little relevance, but they also penetrated the most personal areas of a person and enabled the exchange of data by authorities.

The 27 laws that fall into the “travel” category are intended to make the whereabouts of a person or their travels traceable in retrospect. This includes, for example, the Passenger Data Act of 2017, which enables the exchange of passenger data with other countries. Early on, for example, the police wanted to use a veil search to find out who, when and which main routes were traveling.

The following bar chart shows all four topics broken down by term. Mind you, the first to fourth, sixth, eighth and ninth electoral terms are missing because we have not yet found any laws for these legislatures or have been able to make a clear categorization.

Laws change laws

The 70 supervisory laws have mostly led to changes in other laws. So we went through all 70 laws and identified 146 laws that were changed. This means a total of 280 legislative changes in 70 laws. Result: The table below shows the nine laws that changed the most other laws and the number of fundamental rights restrictions per electoral term.

Terms of office
law159101112131415161718A total of
Residence Act235
Article 10 Law3216
Road Traffic Act3115
Telecommunications Act112149
Code of Criminal Procedure111148
BND law1133210
criminal code111137
BKA law113128
Federal Constitutional Protection Act1134110
Constitutional restrictions111112152419

This tendency to change more and more laws with one law is dangerous because it leads to a loss of overview and thus to legal loopholes. Let us take the fourth law on the promotion of financial markets as an example. It changes 19 laws alone, including the Telecommunications Act. Or the amendment to the Anti-Terrorism Amendment Act. It amends 13 other laws, including seven of the ten most frequently amended laws. In this way, far-reaching changes can be carried out with one infusion and one innocuous legislative act.

Restrictions on fundamental rights are usually specified at the end of the law, as in the case of data retention from 2015. In this case - as is so often the case - the secrecy of telecommunications (Article 10 of the Basic Law) is restricted. The total of 19 restrictions on fundamental rights run through the entire existence of the Federal Republic.

In the 16th electoral term, a grand coalition, the Basic Law was most frequently restricted: by laws such as the data retention of 2008, the Customs Investigation Service Act, the defense against the dangers of international terrorism, the amendment of the Article 10 Act and the strengthening of security in information technology.

This means that basic rights are restricted in 27 percent of the laws. It should be noted that these restrictions on fundamental rights only apply to the 70 listed surveillance laws. In other places, basic rights are also restricted. Everyone has to decide for themselves whether these interventions are legitimate. Often they are right - until the Federal Constitutional Court intervenes.

It is precisely this Federal Constitutional Court that repeatedly refers to a high threshold until an encroachment on fundamental rights may take place. With regard to Lower Saxony's law on public safety and order, which was supposed to install preventive telephone monitoring at state level, it ruled that it was unconstitutional as follows:

Loss of freedom protected by fundamental rights must not be disproportionate to the purposes for which the restriction of fundamental rights serves. Community-relatedness and community-boundness of the person lead to the fact that the individual has to accept restrictions of his basic rights if overriding general interests justify this. However, the legislature must strike an appropriate balance between general and individual interests.

Seen concretely

Let's get to that how is monitored in Germany. Options such as the state Trojans and data retention have already been mentioned. There are also the well-known radio cell queries and many local video surveillance. The following highlights three examples that may have been forgotten.

With the "Law on a Population, Occupation, Building, Housing and Workplace Census" of 1985, the legal basis for the 1987 census was created. The demographics of Germany were supposed to be recorded more precisely with the census, but many citizens resist the recording. Volunteers are said to have gone out under police protection to do this bureaucratic service.

The Great Eavesdropping was introduced in 1998. This involved acoustic monitoring of the living space, i.e. what you said in your private room could be overheard by the police or the public prosecutor's office. The law has been criticized for undermining the fundamental right to the inviolability of the home. To the sorrow of the authorities, the Federal Constitutional Court found the unconstitutionality. However, this could be restored in 2005. The law still applies today.

The Anti-Terrorism Act of 2002 was intended as a direct response to the September 11, 2001 attacks. The Federal Office for the Protection of the Constitution can "[now] get information about account and transfer data, mail, information on air traffic, all information on the use of telecommunications services and locate cell phones". The law was expanded in 2007: secret services are now allowed to register persons in the national police information system (INPOL) and in the Schengen information system (SIS) and thus issue them for a search. It was last extended until 2021.

Furthermore, there are individual measures that do not appear in the chronicle due to a lack of legalization, but expand monitoring. This includes: The model test at Südkreuz train station, where intelligent video surveillance from various manufacturers is tested. The authority ZITiS for breaking encryption. And as a regional example: Kassler Königsstrasse, where the feeling of security is to be increased by means of video surveillance.

Surveillance state?

Privacy International made 12 statements in 2013 that define a surveillance state. Germany fulfills more than half of these 12 theses and should therefore be classified as a surveillance state. We go through six of these theses selectively in detail:

A surveillance state is a state that sees surveillance as a solution to complex social problems.

True. For example, data retention is intended to combat crime and terrorism, which are complex problems that are often difficult to solve.

A surveillance state gathers information about everyone regardless of innocence or guilt and pretends that it is not surveillance.

Applies to a limited extent. Mostly it is affirmed that it is a question of surveillance, but this is not considered to be bad. With Operation Eikonal, for example, the BND and NSA made no distinction between guilt and innocence, but monitored them preemptively.

A surveillance state secretly defines laws and the language of the law.

Applies to a limited extent. It is not publicly known that services formulate laws. However, claims are often accepted. Furthermore, the so-called space theory fits in with this, in which the BND declares that satellite surveillance is foreign surveillance and therefore legal.

A surveillance state monitors both threats to the state interest and threats to its surveillance practices.

True, as Maassen's "correction requests" against journalists show.

A surveillance state avoids democratic and judicial approvals and controls.

Applies to a limited extent. Many measures are legitimized under the rule of law, e.g. by the parliamentary control body, but the question arises: Is this control sufficient?

A surveillance state undermines personal and economic security and all other social goals in order to achieve its goal: whatever is in the surveillance interests of the state. As such, the surveillance state sees only the balance between its needs and our selfish individual desires.

True. The state trojan is a massive threat to IT security by the state buying and hoarding security loopholes so that the police or the intelligence services can break into our devices.

[The other six statements are partially correct.]

Germany is probably not a complete surveillance state like Egypt or China, but modern surveillance is also represented in Germany. It is developed, produced and used here. In addition, modern surveillance is transnational. Services not only want to know a lot about their own citizens, but also about foreigners and their whereabouts, actions and communication. This is shown, for example, by the Snowden Papers and the wiretapping of Internet nodes.

In addition, efforts such as data retention and measures such as the Südkreuz surveillance station confirm that the surveillance should be completed at a point in time when the public space can only be entered with inconspicuous behavior. This prevents protests and legitimate resistance from time to time (Basic Law Article 20, Paragraph 4).

The analysis is based on three LibreOffice Calc data sets. You can download the first comprehensive data set with the individual laws and categories as .ods and .pdf here.You can download the second data set with the part on “Laws change laws” here as .ods and .pdf. You can download the third dataset with the part on “Identification, Communication, Finances, Travel” here as .ods and .pdf. The analysis was carried out with the status of the chronicle on September 13, 2018.

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About the author

lennart

Lennart Mühlenmeier has been writing for netzpolitik.org from time to time since spring 2017, especially when it comes to countering repression and (state) surveillance. There are contact options. From time to time also on Twitter.
Published 09/24/2018 at 9:53 AM