German bill grants intelligence services sweeping operational powers

Protests are mounting against a draft law approved by the federal government to expand the powers of German intelligence agencies.

Through the new legislation, the government aims to grant German intelligence agencies sweeping new powers.

The bill seeks, among other things, to facilitate agency access to information technology systems, extend data retention periods, and automate data analysis.

Agencies will also be permitted to conduct “online searches” in the future.

According to German Foreign Policy, a major change is that, for the first time since the end of German fascism, intelligence agencies will once again possess the authority to implement “operational measures”.

Under the banner of “defence against hybrid attacks”, Berlin is further blurring the lines separating the police, intelligence agencies, and the military, while increasingly eliminating the distinction between external enemies and domestic critics.

The new intelligence law marks another step by the Federal Republic towards “strategic autonomy”.

A hefty “wish list” for intelligence services

With the draft law on the “reform of the Intelligence Service Act”, the federal government aims to systematically expand the powers of German intelligence services in almost every area.

In this context, Interior Minister Alexander Dobrindt explicitly thanked Defence Minister Boris Pistorius. Working in close cooperation, the two ministries succeeded in completely rewriting the Intelligence Services Act, doing so “quietly”.

According to the British newspaper The Guardian, the new law fulfills the “wish list of the intelligence services”.

Under these provisions, intelligence agencies will in the future be able to retain collected telecommunications data for longer periods (content data for up to six months and metadata for up to twelve months). This will enable them to analyse this data “retrospectively” as well.

The law also aims to streamline the analytical process, for instance by permitting AI-supported automated analyses and “removing administrative obstacles”.

The “use of tools for biometric comparison of image data, the application of artificial intelligence, and the further processing of data for research and development purposes”, as well as the transfer of data to “other state agencies and private entities”, will be facilitated.

According to the explanation, the overall objective is to “strengthen access to information technology systems” ranging from “smart refrigerators” to private mobile phones and CCTV cameras in public spaces.

BND granted operational powers

Under this legislation, the federal government is also granting the Federal Intelligence Service (BND) and the Federal Office for the Protection of the Constitution comprehensive powers that, in the words of Interior Minister Dobrindt, “go far beyond intelligence gathering”.

The objective is not merely for the agencies to “see and hear better” in the future, but above all to “take active measures against enemies”.

Alongside online searches, this includes permission to “tamper with” data in the future. The minister justifies this by stating, “This is our mission.”

This measure appears to represent a historical turning point. For the first time since the defeat of Nazism, German intelligence agencies are being granted permission to employ “operational powers”—namely, to take “active measures”. These powers had been reserved exclusively for the police since 1945.

The new powers explicitly encompass “tampering with instruments used in crimes […]”. They also permit “manipulating goods shipments by inserting defective components, targeted intrusion into IT systems in drone factories or chemical weapons laboratories for sabotage purposes, or shutting down or disabling servers belonging to state-sponsored cyberattack groups or disinformation actors”.

Furthermore, all of these actions may now be carried out “proactively”.

Opposition reactions

The proposed draft bill has drawn widespread criticism. For instance, Konstantin von Notz (Alliance 90/The Greens), former chairman of the Parliamentary Oversight Panel for the intelligence services, criticises the bill for failing to distinguish between police work and intelligence work.

Notz supports expanding the powers of the foreign intelligence service (BND), but considers granting the same powers to the domestic intelligence service (BfV) to be “questionable in terms of the rule of law”, as well as “poorly designed and dangerous”.

Under the new law, the domestic intelligence service will in the future be able to enter doctors’ and therapists’ practices undetected, for example.

Consequently, the National Association of Statutory Health Insurance Physicians (KBV) and the German Medical Association sharply criticised the measure on the grounds that it would “undermine medical confidentiality and violate the confidential doctor-patient relationship, which must be protected”.

The president of the Hesse State Medical Association regards the draft as “disrespectful to the medical profession”, stating that it damages the relationship of trust between doctor and patient.

Dobrindt rejected this criticism, stating, “I do not agree with this at all, because we always act appropriately.”

The German Journalists’ Association (DJV) emphasised in a statement that “very broad terms” are used in the draft bill. According to the DJV, this means that “even peaceful activities” could fall under intelligence agency surveillance.

Journalists will no longer be able to guarantee the protection of sources in the future. In addition, the “grading of intervention thresholds based on nationality and place of residence” is unconstitutional.

According to the association, contrary to what is envisaged in the bill, foreign journalists and German journalists working abroad must also be protected from the intelligence services.

Who will oversee the intelligence agencies?

Former Federal Data Protection Commissioner Louisa Specht-Riemenschneider had previously warned against centralising oversight authority over the BND within the Independent Oversight Body.

Ulrich Kelber, an honorary professor of data ethics and Specht-Riemenschneider’s predecessor, shares this criticism: intelligence agencies will themselves take the “final decision” regarding “what can be subjected to oversight”.

According to the data protection expert’s assessment, the Independent Oversight Body, which will serve as the sole oversight body in the future, will not be able to appeal against denied access.

The “state of consent” introduced in the bill grants the BND “extensive special powers” while further restricting oversight options.

Moreover, the agency will be able to do this without requiring the Bundestag to declare a state of tension or a state of defence, which had been necessary until now.

Kelber regards this as an “unconstitutional shift of power away from the elected parliament”.

The draft law, which the federal government supports partly by pointing to a purported improvement in oversight mechanisms, gives him the “impression that independent oversight of the intelligence services is being deliberately sabotaged”.

Intelligence treats incidents of unclear origin as “Russian attacks”

Dobrindt also justifies this domestic move by citing a threat emanating from Russia.

Dobrindt asserts that Germany is “the target of hybrid warfare every day”, stating that expanding the powers of the intelligence agencies is merely “a response to the current threat situation”.

During a hearing before the parliamentary oversight committee, Sinan Selen, Vice President of the Federal Office for the Protection of the Constitution, admitted that his agency also classifies incidents that cannot be clearly attributed to a specific source as Russian “hybrid attacks”.

This situation further blurs the distinction between external enemies and domestic opponents.

Consequently, under the new law, the domestic intelligence service will in the future be able to use not only real or alleged “hybrid attacks”, but also “significant unrest among broad sections of the population”, as justification for operational measures.

Berlin anticipates that the public would show resistance in the event of war, should NATO troops transit through Germany on their way to the new Eastern Front.

German “strategic autonomy” goes hand in hand with militarisation

Interior Minister Dobrindt asserts that Germany has hitherto been dependent on the support of foreign intelligence services.

Berlin hopes that strengthened German intelligence services will give it a better standing vis-a-vis Washington, Paris, and London, turning it into a serious interlocutor on “equal terms” and moving it away from being a junior partner.

The proposed draft bill aims to ensure that German intelligence agencies “no longer lag behind other European partners”.

According to the minister, this will enable Berlin to “justify its claim to a leadership role in European security policy”.