FECL 54 (May 1998):
The use of eavesdropping devices, including ultra-sensitive directional microphones and sophisticated video-surveillance equipment, outside private premises has been authorised in Germany since 1992. The practice is commonly called Kleiner Lauschangriff ("minor eavesdropping attack": MinEA). As a matter of fact, thanks to the quick development of surveillance techniques, the MinEA have often already enabled eavesdropping of private premises. Yet, in the opinion of German police and security circles, this was not enough. At the beginning of the 90s, they began calling for the legalisation of what was soon nicknamed Grosser Lauschangriff ("major eavesdropping attack": MajEA) - that is, the right for the police to mount audio and video devices inside private premises, including bedrooms, in hunting suspects of "serious crimes". This demand quickly drew strong support from Chancellor Kohls conservative CDU (Christian-Democratic Union) and its Bavarian sister-party and coalition partner, CSU (Christian Social Union). However, in seeking the legalisation of the MajEA, German advocates of "law and order" had to overcome considerable political and legal obstacles.
The legal obstacle consisted in the fact that paragraph 13 of the German Federal Constitution (Grundgesetz) guarantees the "inviolability of homes". Restrictions to this rule, of course existed. State authority intrusions were allowed for the prevention of an imminent danger and, based on a law and ordered by a judge, for traditional means of investigation such as house searches, arrests of suspects and seizures (for the purpose of criminal prosecution only). Yet, there was general agreement that paragraph 13 did not provide for home intrusions into homes of which, due to their very purpose, the targeted person(s) will not and cannot be made aware of. Thus, the MajEA could not be introduced without prior amendment of the Constitution. Such an amendment requires a 2/3 majority vote in parliament.
The political obstacle consisted in a then strong reticence of the opposition parties of the opposition and of the FDP, the liberal democratic junior partner in Chancellor Kohls centre-right coalition government, against the steady extension of police powers and against the amendment of a paragraph in the Constitution that was, considered as fundamental in establishing the identity of a new post-war Germany, where peoples privacy would never again be trampled by an almighty secret police. Without the support of the FDP and parts of the opposition SPD, however, the Christian conservative parties could never obtain the necessary 2/3 majority for an amendment of the Constitution.
Yet, as elsewhere in Europe, growing economic and social problems in the 90s gave rise to of a general sentiment of insecurity and fear of the future among ever more sectors of the public. Since politicians increasingly felt unable to address the root causes of these problems, they were almost necessarily tempted to lend an open ear to those who called for more policing as an effective way to combat a multitude of alleged new threats such as "illegal immigration" and "organised crime". In recent years, "internal security" and the "fight against organised crime" were the most cherished and profitable battle horses of Christian Democrat election campaigners. They successfully denounced both the FDPs and the SPDs "obstruction" of the Governments efforts to clamp down on crime - with the expected result. In 1995, a majority of the FDP-leadership decided to give up their opposition to the introduction of the MajEA. This turnabout represented a decisive defeat for a number of senior liberal figures in the FDP, such as the former Ministers Genscher, Hirsch, and Lambsdorff, and the then Federal Minister of Justice, Ms Sabine Leutheusser-Schnarrenberger, who resigned from this post in protest against her partys decision (see FECL No.40: "Justice Minister resigns in protest against bugging").
By autumn 1997, the Social Democrats, in their turn, agreed to negotiations (outside parliament!) with the three parties (CDU/CSU/FDP) of the government coalition which eventually resulted in what the SPD called a "compromise solution" - i.e. a bill providing for eavesdropping inside homes, subject to a number of restrictions.
In January 1998, the Bundestag (lower house of Parliament) voted the Bill on the amendment of paragraph 13 of the Constitution with 452 against 184 votes (the Greens, the ex-communist PDS, and a few MPs from the FDP and the SPD). In February, the Bill was approved by the Bundesrat (the upper house, representing the governments of the 16 Länder).
The amended paragraph 13 authorises the use of MajEA both for the prevention of "imminent dangers to public security", and for the prevention and prosecution of offences on the following restrictive conditions:
the criminal offence concerned is "particularly serious";
the investigation of the facts in question by other means than Maj EA would be "disproportionally difficult" or impossible;
As rule, a MajEA must be ordered by a chamber of three judges.
As a rule, the targeted person must be informed of the operation after its conclusion and shall have a right to legal remedy.
On the other hand, the law authorises the MajEA against private premises or homes in which a suspect or accused is "supposedly" staying, that is, not only the targeted persons' own premises, but also the homes and offices of perfectly innocent citizens regarded as (possible) "contact persons". Consequently, the first draft Bill based on the four-party compromise authorised eavesdropping of persons exercising professions bound by professional secrecy, such as doctors, lawyers, priests and journalists. After vehement protests from the churches and the professional associations and unions concerned, the Bundestag agreed onto a last minute change, according to which the MajEA of conversations in the framework of pastoral care (namely confessionals), conversations between a defendant and his defence attorney, as well all conversations of members of parliament (!) should be prohibited. As for doctors and lawyers, the MajEA was to be authorised only for the purpose of gathering evidence in the course of criminal investigations, and the use of this evidence in court is, subject to certain restrictions. No restrictions were introduced with respect to eavesdropping of journalists, although, under German law, they are under no obligation to reveal their sources and to disclose evidence gathered in the exercise of their profession.
While securing the necessary 2/3 majority for the Bill, this last-minute change did not satisfy the professional groups concerned, and namely journalists. In recent years charges against civil servants, who leaked information to the press, and police searches of homes and offices of journalists and editors detaining information on criminal suspects have become ever more common in Germany. Many journalists now fear that the use of MajEA will further deter people from disclosing sensitive information to journalists. Immediately after the vote, the countrys largest Union of Journalists, DJV, and some of the countrys leading newspapers announced their intention of seeking the abrogation of the law by the Federal Constitutional Court (Bundesverfassungsgericht), on the grounds that it threatened freedom of press.
Only when the constitutional amendment was adopted, did public concern about the risk of a too extensive use of the MajEA belatedly lead a number of SPD and FDP members of parliament to review their position. Since the amendment of the Constitution could no longer be reversed, they pressed for further restrictions on the use of eavesdropping to be included in the various implementing laws specifying the conditions under which eavesdropping is lawful. This late movement of remorse eventually resulted in the opponents of the MajEA winning a little battle after losing the war. In early March, the Bundestag, quite unexpectedly, voted a number of changes to the implementing laws, to the effect that the MajEA for the purpose of the investigation of crimes committed (prosecution) is to be prohibited in the private premises of the approximately 20 professional groups (such as doctors, journalists, lawyers (i.e. not only defence attorneys), accountants, pharmacists, dentists and mid-wifves) who benefit from the right to refuse to give testimony in court.
On the other hand, the controversial use of the MajEA, by not only the police but also the secret services, for the prevention of "imminent dangers to public security" is still permitted. This has given rise to a concern that the MajEA might be used, for example, against political groups preparing demonstrations.
While the authors of the "compromise" are keen to emphasise that the numerous restrictions will effectively prevent an excessive use of the MajEA by law enforcement authorities, and justify the amendment as a necessary measure enabling the surveillance of "gangster homes" and the fight against "organised crime", the long-time opponents of the law stand firm in their rejection of the constitutional amendment. They argue that, once the very principle of "major" eavesdropping is authorised by the Constitution, the door is wide open to continuously extending its use through changes to the implementing laws.
Critics point to the conspicuously frequent use in the new law of vague terms which simply invite to arbitrary interpretation. What, for example, is a "particularly serious crime"? How serious must a "imminent danger to public security" be in order to justify a MajEA? When should an investigation be made "disproportionally difficult", if other means than the MajEA were used? None of the apparent restrictions, the critics say, is likely to prevent eavesdropping of the homes of totally innocent persons - family members, business contacts, social workers, who (rightly or wrongly) happen to be regarded as "contact persons" of suspects.
Not even the restrictions apparently benefiting particular professional groups such as priests, doctors, journalists, lawyers and accountants are a sufficient guarantee against their being targeted by eavesdropping operations. "Already now, for instance, journalists have their phones tapped ever more often, not because they are really suspected of some offence, but simply because they are 'contact persons', says Christian Busold, a Hamburg -based lawyer and legal advisor to the Green parliamentary group in the Bundestag. "In such cases, eavesdropping is ordered on what in most cases is no more than a construed legal pretext - that is, phone tapping is authorised on the mere presumption that the journalist concerned is "aiding and abetting" or "instigating" a crime. This legal construction could easily be used for justifying major eavesdropping as well".
Other critics point out that eavesdropping devices may be mounted in homes on very loose grounds. Indeed, an eavesdropping operation may be ordered on the mere ground that law enforcement authorities "have reasons to believe" that a suspect is likely to stay or to appear in some private room.
The fact that "major" eavesdropping requires an order by 3 judges (only one in case of "urgency") is unlikely to prevent abuse in practice. Experience in the field of lawful interception of telephone communications shows that judges very seldom refuse requests from the police, since they are entirely dependent on information presented by the police in making their decision and often have to act under great time pressure. Moreover, the new law does not provide for a continuous control of an on-going eaves-dropping operation by the judge, once it has been ordered.
The authorisation of the MajEA is just the latest, and certainly not the last, illustration of a continuous trend in Germany towards a widening of the investigatory powers of law enforcement authorities and an undermining of privacy.
Indeed, in the last two decades, the number of new methods of investigation whose use is authorised in Germany, has quickly risen. They include methods such as:
"minor" eavesdropping (introduced through a law on the fight against organised crime in 1992);
the extension, done twice (in 1992 and 1994), of interception of telecommunications;
"search by screening" (Rasterfahndung), i.e. automated matching of the personal data of a suspect with all personal data stored in various data bases (e.g. onf owners of motor vehicles);
"net search" (Netzfahndung), i.e. the setting up of temporary working registers for the automated storage and processing of data collected at the occasion of specific mass checks, for example at the border;
"police observation", i.e. the authorisation for the police to monitor and analyse all movements of suspects and their "contact persons";
rules on the use of "repenting" chief witnesses in court, allowing deals between the prosecution authorities and an accused, if the latter testifies against others;
the use of covert investigators, whose witness accounts are not accessible to defence attorneys;
a whole network of automated databases enabling almost catch-all police control (e.g. the PIOS information system on persons, institutions and objects, the ADOK working register on organised crime, and AFIS, the automated system for the identification of fingerprints, which contained about 4,300,000 fingerprint sets in 1996).
The decision to allow "major eavesdropping" should also be considered in the context of the fact that Germany already is a champion among Western states as regards interception of telephone communications. In the last 25 years, the number of interception orders has constantly risen, from 104 in 1973 to 8,112 in 1996. These operations affected not only the subscribers of the targeted telephone numbers, but (according to expert estimates) resulted in the conversations of at least one million innocent people being intercepted, simply because they communicated with a person under surveillance.
Critics of the MajEA also point out that there is nothing to suggest that extensive phone tapping or "major eavesdropping" is an effective means of combatting organised crime. They point to figures from the USA showing that in 10 years only 26 persons were convicted as a result of telephone tapping measures affecting millions of persons, most of whom where totally innocent.
Innocent people are the most likely victims of the MajEA too. According to its advocates, MajEA is aimed against "gangster homes" only. This view is dismissed by the SPDs experts on interception of telecommunications, claus Arndt, told the Berlin newspaper, TAZ: "The crooks are not stupid. They quickly learn how to evade [eavesdropping] measures. If we get the major eavesdropping attack, its victims will probably mostly be other people". Asked whether he considered the MajEA an inefficient measure, Arndt replied: "Yes, definitely. Thats a measure aiming directly at the slot of the ballot box".
Sources: Wanzen und was dann? - Kritik am grossen Lauschangriff, Documentation on the hearing at the Bundestag, 24.10.97, Bündnis 90/Die Grünen, November 97; Büro Ulla Jelpke, PDS, Rundbrief 4.3.98; Frankfurter Rundschau, 21.10.97; Neue Zürcher Zeitung, 9.1.98, 17/18.1.98; 7/8.2.98; TAZ, 6.3.98; Frankfurter Allgemeine Zeitung, 6.3.98; Süddeutsche Zeitung, 6.3.98; additional information provided by Christian Busold, lawyer, Office of Manfred Such, Green MP at the Bundestag; see also: