Big bugging

In Germany , Austria and Switzerland, the term “ large eavesdropping” or “ eavesdropping” for short is colloquial acoustic and optical surveillance measures by law enforcement authorities and intelligence services within private spaces, such as a private apartment.

Germany

The foundations for the “great eavesdropping” were laid on January 16, 1998 by the Bundestag and on March 6, 1998 by the Bundesrat : By inserting paragraphs 3 to 6 of Article 13 of the Basic Law (GG), so-called acoustic living space surveillance was made for the purposes of criminal prosecution enables (para. 3).

The implementation provisions of the law had to be changed after a decision by the Federal Constitutional Court on March 3, 2004. Although the court declared the amendment to the Basic Law to be fundamentally constitutional, the implementing provisions were classified as unconstitutional. With the “Act to Implement the Judgment of the Federal Constitutional Court on Acoustic Housing Surveillance”, which the Bundestag passed on May 12, 2005 with the votes of the SPD and the Greens, the form of eavesdropping was given to this day.

The change in the law was very controversial in politics and the public. A campaign initiated by journalists against the planned surveillance of their professional group led to a sudden change in media coverage, so that shortly before the law was passed, this professional group was simply legally re-included in the group of groups exempted from the "Great bugging attack".

Legal experts in particular went too far to encroach on the fundamental right to the inviolability of the home . Critics voiced the fear that the amendment to the Basic Law would mark the beginning of the establishment of a surveillance state .

Even before 1998, the federal government tried to introduce the "great bugging attack". Mostly this failed because of the then Federal Minister of Justice Sabine Leutheusser-Schnarrenberger ( FDP ). In 1995 , the FDP carried out a ballot , in which a majority of 63.6% spoke out in favor of the "great bugging attack". In response, Sabine Leutheusser-Schnarrenberger resigned from her position as Federal Minister.

Terminology

As part of the “great eavesdropping”, the police and the public prosecutor's office are also authorized to monitor apartments. However, this is only possible if, at the request of the public prosecutor's office, this monitoring is ordered by the State Protection Chamber , and in cases of imminent danger also by the chairman of the State Protection Chamber ( Section 100c in conjunction with Section 100e (2) StPO ).

The “minor eavesdropping” must be differentiated from the “major eavesdropping”. The "small eavesdropping" only relates to conversations outside of apartments, ie in public places as well as in generally accessible office and business premises ( § 100f StPO). Apartments in this sense are the areas that the authorized person has withdrawn from general accessibility and made the place of his life and work.

The term “eavesdropping” first appeared in 1968 in the Donald Duck story “Irrungen und Wirrungen mit einer Werewolf” (DD 117), translated by Erika Fuchs . It did not spread through critics of such measures, but rather through the intelligence and ministerial environment when this measure was first used in the 1970s. (→ Traube eavesdropping ). Nevertheless, the term “acoustic living space monitoring” can be used synonymously.

Scope of intervention

The change in the law enables acoustic living space surveillance to be used in the area of law enforcement; In addition, the possibility of monitoring living space already contained in the old version of Art. 13 GG has been modified for the purpose of averting danger (paragraphs 4 to 6). The simple legal implementation took place through the law to improve the fight against organized crime , through which the relevant §§ 100c, 100d, 101f and 101 StPO were inserted or amended.

The prerequisites for acoustic living space surveillance are regulated in Section 100c (1) of the Code of Criminal Procedure. Additional requirements apply according to Paragraph 3 of the regulation if the monitoring is to be carried out in the rooms of third parties.

According to the jurisprudence of the Federal Constitutional Court , monitoring must be omitted in situations in which there are indications that the measure violates human dignity ( Art. 1 GG). Accordingly, Section 100d (2) of the Code of Criminal Procedure stipulates that statements that are part of the core area of private life may not be recorded. As part of a so-called "negative core area prognosis", this must be checked by the competent court before the measure is ordered. However, if the surveillance unexpectedly leads to the collection of absolutely protected information, it must be stopped and the recordings deleted immediately ( Section 100d (4) of the Code of Criminal Procedure). Knowledge of such statements may not be used ( Section 100d (2) of the Code of Criminal Procedure). The risk of collecting such data typically arises when eavesdropping on conversations with close family members, other closest confidants and people with whom there is a special relationship of trust. According to the Federal Constitutional Court, surveillance measures may only be taken with this group of people if there are concrete indications that the content of the conversation between the accused and these persons does not require absolute protection, for example if the persons conducting the conversation are involved.

One in July 2004 by the Federal Ministry of Justice submitted the draft bill amending the law stipulated that these derogations should be limited to defense lawyers and lawyers. In addition, the “great eavesdropping”, following the stipulations of the Federal Constitutional Court, should only apply to serious crimes such as murder and manslaughter .

This draft was strongly criticized by representatives of the professional groups threatened with deprivation of protection, by almost all German data protection officers, by parts of the press and by the Greens, because the draft ignored essential aspects of the judgment of the Federal Constitutional Court (see below) or even on the contrary wrong. Federal Justice Minister Brigitte Zypries then withdrew the draft after a few days.

In May 2005, the SPD and the Greens in the Bundestag finally passed the "Act to Implement the Judgment of the Federal Constitutional Court on Acoustic Housing Monitoring". The law does not contain an absolute prohibition of surveillance for conversations in the private sphere, but rather states a general authority to intervene and specifies the conditions when interception may be made. The requirement stipulated in the decision of the Federal Constitutional Court of March 3, 2004 (see below) that the use of a record requires a judicial review was not adopted.

Decision of the Federal Constitutional Court

Basics of the decision

On March 3, 2004, the Federal Constitutional Court ruled on the constitutional complaint from Sabine Leutheusser-Schnarrenberger , Gerhart Baum and Burkhard Hirsch , among others , that large parts of the law to combat organized crime violated human dignity and are therefore unconstitutional. While the court did not object to the amendment of Article 13 of the Basic Law, the judges declared numerous implementing provisions of the Code of Criminal Procedure to be inconsistent with the constitution. In particular, surveillance should only be ordered if particularly serious crimes are suspected. The particular gravity of a criminal offense within the meaning of Article 13 (3) of the Basic Law can only be assumed if the legislature has given it a higher maximum sentence than five years' imprisonment.

Conversations between close relatives may only be listened to if everyone involved is suspicious and the conversation is criminally relevant. If these requirements are not met, the corresponding records are not only worthless as evidence, but must not be made in the first place. This standard rejects the previous practice of automated recordings as not being constitutional. In order to establish constitutionality in the implementation of the surveillance, the surveillance must now be actively pursued by an official who, if necessary, cancels the surveillance as soon as the conditions specified by the court are no longer met.

The retention of the amended Art. 13 GG implies that the great eavesdropping attack as the ultimate means of criminal prosecution is to be regarded as constitutional. Consequently, contrary to the original intention of Art. 13 GG, the court does not grant the citizen any space protected from state access. Instead, the ruling limits the state's right of access to privacy to situations that could pose significant threats to the community. The absolute norm of protected privacy is thus replaced by a relativizing protection of personal conversation content. However, these are only protected if they have no “criminally relevant content” (in the opinion of the police). The protection of the innermost private sphere is ultimately left to the discretion of the police.

The judgment had to be implemented in a new law by June 30, 2005. As long as the legislature has not acted, the police must implement the judgment of the Federal Constitutional Court.

The reasons for the judgment are as follows:

“The inviolability of human dignity includes the recognition of an absolutely protected core area of private life . Any collection of information from this area must be discontinued. Any utilization is excluded. (Judgment on the large eavesdropping attack of March 3, 2004) "

Minority vote

The verdict did not go far enough for the judges Renate Jaeger and Christine Hohmann-Dennhardt . In addition to the corresponding provisions of the Code of Criminal Procedure , the amendment to the Basic Law is also unconstitutional, according to its dissenting vote of March 3, 2004 . You refer to the so-called " eternity clause " of the Basic Law, according to which changes to the constitutional principles of Art. 1 and Art. 20 GG with the aim of restricting them are fundamentally inadmissible. In particular, the amendment to the Basic Law was criticized for setting up a number of material and procedural hurdles against eavesdropping on private apartments, but none that forbade eavesdropping on “conversational situations of a highly personal nature”. The majority of the judges responded to this objection with the argument that by way of a constitutional interpretation - in particular with due regard to Article 1, Paragraph 1 of the Basic Law and the principle of proportionality - Article 13 of the Basic Law only permits such simple legal regulations and measures based on them that Article 79 para. 3 GG i. V. m. Art. 1 Abs. 1 GG left untouched. The function of the actually factually relevant barrier building of Article 13 (3) GG is of course implicitly called into question.

In addition, the judges argue that, in view of the total surveillance that is now technically possible , the protection of privacy formulated in Article 13 of the Basic Law is to be given much greater importance than the fathers of the Basic Law could have even imagined.

Assessment in the media

In the press, the decision was largely welcomed as a long overdue return to the core elements of the rule of law. After a long series of ever-increasing undermining of the rule of law by politics under the pretext of combating crime, the judges made it clear that there are definite limits to the relativization of fundamental rights through criminal laws. The considerable obstacles that the court has placed on the implementation of the surveillance are viewed as a de facto undermining of the Great Eavesdropping.

The appraisal of the actual implementation of the Great Eavesdropping provides arguments for opponents and supporters alike: the fact that 119 surveillance measures have been carried out in five years is seen by supporters of the regulation as evidence that there is no question of widespread spying; Conversely, the critics argue that the relatively low number of inspections shows that the benefits of the regulation are far less than the proponents claim and that it is far outweighed by its fundamental rights questionable nature.

In the run-up to the decision of the Federal Constitutional Court, the Union parties had already considered whether to supplement acoustic living space surveillance with optical living space surveillance ("spy attack"). Terahertz / millimeter wave systems from Thyssen Krupp are available for testing by the BSI, the BKA and the Office for the Protection of the Constitution. For evaluation purposes, distances of up to 850 km were realized according to the ground range radar principle. This technology is currently being banned by lawsuit, but the BMI is not prepared to forego its use. According to the unanimous opinion of the press, these considerations will no longer have a chance of being implemented after the decision on the great eavesdropping has been announced .

This widespread agreement on the spirit of the judge’s verdict explains the great public response that the draft bill was met with in July 2004: Many of the changes envisaged in the draft were diametrically opposed to the spirit of the judges’s decision and even aggravate the points criticized by the court. There is a general opinion in the press that the draft says “Zypries on it”, but “Schily is in”, although references are often made to the time Brigitte Zypries spent as Otto Schily's State Secretary in the Federal Ministry of the Interior.

chronology

May 19, 1995: Conference of Interior Ministers speaks out in favor of a "large bugging attack".
September 25, 1995: FDP starts a member survey within the party on the "Great bugging attack", with almost two thirds agreeing to the introduction of this measure.
December 14, 1995: In response to this result, Sabine Leutheusser-Schnarrenberger resigns from her position as Federal Minister of Justice.
January 16, 1998: With the votes of the CDU / CSU, FDP and parts of the SPD, the Bundestag passes the restrictions of Article 13 of the Basic Law (yes: 452 votes; no: 184 votes; abstentions: 5).
February 6, 1998: The Federal Council decides to amend the Basic Law, but calls the Mediation Committee to have the implementing laws reviewed.
March 2, 1998: The mediation committee demands that the guarantees of protection of Art. 13 GG for persons in a special position of trust (e.g. pastors, doctors) continue to apply unabated.
March 5, 1998: The majority of the Bundestag follows the request of the Mediation Committee. As a result, the Helmut Kohl government suffered a vote defeat for the first time since 1982 .
March 6, 1998: The amendment decided in the Bundestag is finally passed by the Bundesrat with 39 votes against 30.
March 1999: Sabine Leutheusser-Schnarrenberger, Burkhard Hirsch, Gerhart Baum and other FDP members lodge a complaint with the Federal Constitutional Court against the amendment to Article 13 of the Basic Law.
May 18, 2000: In Mecklenburg-Western Pomerania, the “great eavesdropping” is made more difficult by a ruling by the state constitutional court.
July 1, 2003: Oral hearing before the Federal Constitutional Court on the compatibility of the "Great bugging attack" with the Basic Law.
March 3, 2004: The Federal Constitutional Court assesses the “Great Eavesdropping” as compatible with the Basic Law, but annuls numerous implementing provisions and makes considerable demands on the implementation of the “Great Eavesdropping”.
July 10, 2004: The Federal Ministry of Justice presents a draft bill to amend the regulations declared by the Federal Constitutional Court to be non-constitutional. The developing violent public criticism of the draft, which in the opinion of the critics completely contradicts the meaning of the judge's verdict, leads to the draft being withdrawn.
June 24, 2005: Parliament passed a law to implement the judges' ruling and revised provisions of the Code of Criminal Procedure.

Frequency of use

In 2005, courts ordered acoustic living space surveillance in seven cases, in 2006 in three cases, in 2007 in ten cases and in 2008 in seven cases. Before 2005, the number was around 30 permits per year. The decline was largely caused by the above-mentioned ruling by the Federal Constitutional Court to contain the large eavesdropping attack.

Eavesdropping in Austria

In Austria , eavesdropping stands for the "optical and acoustic monitoring of people using technical means". This new form of obtaining evidence has been regulated in Austria since 1997 in § 136 StPO . Non-public behavior or statements by people in the form of image and sound transmission and recording are monitored. Normally, the council chamber (a senate consisting of three judges) has to approve. The arrangement and implementation of the eavesdropping attack is controlled and checked by the independent legal protection officer. Initially, eavesdropping was only introduced on a trial basis, as there were significant concerns about invasion of privacy . But now this form of surveillance to combat crime is undisputed by all major political parties in Austria.

It was used for the first time in May 1999 during " Operation Spring ". In Austria, eavesdropping attacks are usually carried out by the special observation unit . The great eavesdropping regained attention in the Wiener Neustadt animal rights activist trial , in which the fate of 13 innocent animal rights activists was negotiated. In the investigation, the great eavesdropping was used without the existence of a criminal offense and is therefore very controversial.

literature

Martin Mozek: The great eavesdropping - The regulation of § 100c I No. 3 StPO in the area of tension between the fight against crime and constitutional reality . Shaker, Aachen 2001, ISBN 3-8265-8688-3

Rolf Gössner: BigBrother & Co. - The modern surveillance state in the information society. 2nd Edition. Konkret Literatur Verlag, Hamburg 2001, ISBN 3-89458-195-6

Burkhard Hirsch: About bugs - remarks on the "Great bugging attack". In: Humanist Union e. V. (Ed.): Internal security as a danger. 1st edition. Berlin 2003, pp. 195–203, ISBN 3-930416-23-9

Fredrik Roggan (Ed.): Eavesdropping in the Rule of Law - On the consequences of the judgment of the Federal Constitutional Court on the large eavesdropping attack. Berliner Wissenschafts-Verlag, 2004, ISBN 3-8305-0942-1

Sönke Hilbrans: Eavesdropping reloaded. In: Datenschutz Nachrichten 2/2005, pp. 10–13.

Maximilian Warntjen: Secret coercive measures and the core area of private life. A conception following the judgment of the Federal Constitutional Court on acoustic living space surveillance, BVerfGE 109, 279. Nomos Verlag, Baden-Baden 2007, ISBN 978-3-8329-2759-2

Sarah Kress: The 'Great Eavesdropping' as a Means to Fight International Crime - On the Usability of Evidence Obtained Abroad, Verlag Dr. Kovac, Hamburg 2009, ISBN 978-3-8300-4172-6