Nobody can say for sure how high the total surveillance burden on citizens is. The planned overall surveillance bill aims to change this. In 2020, the Liberals had already proposed a motion to initiate an “overall surveillance bill instead of further restrictions on civil rights”. In the coalition agreement, the coalition government then stated that it would commission an “independent scientific evaluation of the security laws and their impact on freedom and democracy” “by the end of 2023 at the latest”.
The Federal Ministry of the Interior and Home Affairs has now announced that the Max Planck Institute (MPI-CSL) for the Study of Crime, Security and Law has been awarded the contract to evaluate Germany’s security laws. The overall surveillance study is to take stock of existing powers and show what legal and actual effects they have. The jurisprudential and empirical study is intended in particular to show what effects the surveillance powers in the security laws and their practical application have on freedom and democracy.
Balance between freedom an security has to be ensured
Rita Schwarzelühr-Sutter (SPD), Parliamentary State Secretary at the Federal Ministry of the Interior, said: “One of our most important tasks is to ensure a balance between the freedom and security of the people in our country. The independent, scientific monitoring programme will enable us to examine the effectiveness of the security laws and ultimately place them on an even firmer footing.”
To this end, the scientists first want to gain an overview of all the data collections to be included. According to the MPI-CSL, the surveillance scenarios involve data “ranging from classic telecommunications surveillance, to the retrieval of account data from telemedia services, through to the unjustified retention of customer data at banks for money laundering checks or air passenger data to combat terrorism.” The next step is to analyse which security authorities – BKA, federal and state police forces, public prosecutors’ offices – can access this data on the basis of which legal principles and under which legal conditions this access can take place. This means that the specific access figures are to be determined for each case in a fixed observation period. The processed data is anonymised and does not contain any sensitive personal data.
Policy based on fundamental rights and evidence
Benjamin Strasser (FDP), Parliamentary State Secretary at the Federal Ministry of Justice (BMJ), was also pleased about the start of the evaluation. He said that the overall surveillance report was intended to “identify and analyse the network of surveillance powers on a scientific basis. According to the case law of the Federal Constitutional Court, the careful analysis of existing data collections and their interaction is of essential importance for the legislator.” The legislator must carefully weigh up which new powers it grants and must also take into account the totality of existing data collections “and exercise restraint if necessary.” Strasser explained that the overall surveillance bill was an expression of the trend reversal agreement in the coalition agreement to achieve a domestic and legal policy based on fundamental rights and evidence. There should not be an excess of surveillance. As a result of the overall surveillance report, a Freedom Commission is to be formed to advise the legislator on considerations regarding the granting of new powers of intervention.
The MPI-CSL will present an initial interim report in mid-2024. After an observation period of one year, the overall monitoring report will then reveal the actual and legal effects of the existing powers of intervention and how effective they are. During this time, the Federal Government would like to concretise its conceptual considerations regarding the establishment of the Freedom Commission so that it can use the overall monitoring account for supervision.
