Germany

PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

THE GERMAN TELECOMMUNICATION ACT (TELEKOMMUNIKATIONSGESETZ)

The German Telecommunication Act (TKG) requires certain operators of telecommunication systems used to provide telecommunication services to the public to maintain technical and organisational capabilities to execute interception measures provided for by law (Section 110 TKG).

Section 110 TKG requires operators of telecommunication systems used to provide telecommunication services to the public (as further specified in Section 3 TKG) to maintain the technical facilities, and to make the organisational arrangements to execute telecommunication interception measures expressly provided for by law. This includes the obligation to maintain interception capabilities to execute any interception order without delay (including, in particular, handing over a copy of the requested communication). More detailed requirements and specifications, including required technical and organisational standards, are set forth in the Telecommunications Interception Ordinance (Telekommunikations- Überwachungsverordnung – TKÜV) and the corresponding Technical Directive issued thereunder (Technische Richtlinie zur Umsetzung gesetzlicher Maßnahmen zur Überwachung der Telekommunikation und zum Auskunftsersuchen für Verkehrsdaten – TR-TKÜV).

There are a number of legal statutes that can serve as a legal basis to request the implementation of interception measures, as, for instance, StPO, G10, ZFdG, BKAG and the Police Acts of the federal states as detailed below.

CODE OF CRIMINAL PROCEDURE (“STPO”)

The measures pursuant to Section 100a Strafprozessordnung (StPO) require a prior court order following an application by the public prosecutor’s of ce (or, in relation to tax offences, the tax authority); yet, in pressing circumstances, the public prosecutor’s of ce may also issue an order, which must be con rmed by the court within three working days in order not to become ineffective (Section 100b(1) StPO).

An order may only be granted in cases where certain facts give rise to the suspicion that a serious criminal offence referred to in Section 100a(2) StPO has been committed (or, in cases where there is criminal liability for an attempt, there was an attempt to commit such an offence, or such offence had been prepared by committing a criminal offence), and the offence is one of particular gravity in the individual case as well, and other means of establishing the facts or determining the accused person’s whereabouts would be signi cantly more dif cult or even futile (Section 100a(1) StPO).

The measures may only be directed against the accused person or against persons in respect of whom it may be assumed, on the basis of certain facts, that they are receiving or transmitting messages intended for, or stemming from, the accused person, or that the accused person is using their telephone connection (Section 100a(3) StPO).

All persons providing, or contributing to the provision of, telecommunications services on a commercial basis are required to assist the public prosecutor’s office (and certain of officials working in the police force or, in relation to tax offences, the tax authority) to implement the necessary measures required for the interception/recording of the communication and to provide all necessary information without delay (Section 100b(3) StPO). The measures to be taken are further specified by Section 110 TKG and the TKÜV/TR-TKÜV.

ARTICLE 10 ACT (ARTIKEL 10-GESETZ-G10)

An order under Section 3 G10 may be granted where actual facts give rise to the suspicion that a serious criminal offence directed against the free democratic basic order or the existence or safety of the Federal Republic of Germany or its federal states (as listed in Section 3(1) G10) will be, is being or has been committed. It may also be granted if a person is part of a group having the purpose of committing such crimes, and the investigation of the facts by other means would be signi cantly more dif cult or even futile.

Measures may be directed against the suspect or a third person who, on the basis of certain facts, is reasonably suspected of receiving or forwarding messages intended for, or stemming from, the suspect (Section 3(2) G10; ‘individual interception’).

An order under Section 5 (for bundled telecommunications) or Section 8 G10 may be granted where the intercepted information is necessary in order to prevent the danger of an armed attack or terrorist attacks on Germany, international drug traf cking, money laundering or similar crimes that will have an impact on German territory (as listed in Section 5(1) G10). It may also be granted to prevent the danger to the life or physical integrity of a person abroad, if such danger directly affects German interests (Section 8 G10).

The interception measures under Section 5 and 8 G10 are not directed at a specific individual. Rather, certain geographic regions are de ned as intelligence areas (Aufklärungsgebiete), allowing the Federal Intelligence Service to monitor the communication in this area by using certain suitable search terms (Section 5(2) and 8(3) G10; ‘strategic interception’).

The telecommunication service provider must allow the Intelligence Service to install the relevant technical capabilities on its premises and must grant access to the relevant employees of the Federal Intelligence Service as well as the G10 Commission (Section 110(1) No. 5 TKG and Section 27 TKÜV). The measures to be taken are further specified by the TKÜV/TR-TKÜV.

However, these technical capabilities do not constitute ‘interception capabilities’ in the direct sense of the term. Rather, the interception itself still has to be performed by the telecommunication provider, which then (electronically) hands over a so-called ‘interception copy’ (Überwachungskopie) of the communication to the Federal Intelligence Service. The communication is  ltered by special equipment with the help of pre-de ned search terms, and the irrelevant part of the interception copy has to be deleted before the relevant part is passed on to the Federal Intelligence Service.

All persons providing, or contributing to the provision of, telecommunications services on a commercial basis are required to implement the measures to enable the interception/recording of the communication (Section 2(1) G10). The measures to be taken are further speci ed by Section 110 TKG and the TKÜV/TR-TKÜV.

CUSTOMS INVESTIGATIONS SERVICES ACT (ZFDG)

Similar rules as under Section 100a and 100b StPO apply under Section 23a and 23b of the ZFdG (which follow the structure and principles of the StPO).

FEDERAL CRIMINAL POLICE OFFICE ACT (BKAG)

Interception orders under Section 20l BKAG are granted via court order upon request by the President of the Federal Criminal Police Of ce (Section 20l(3) BKAG). Under pressing circumstances, the President of the Federal Criminal Police Of ce himself can grant the order but has to obtain judicial approval.

Pursuant to Section 20l(1) BKAG, interception orders may be granted in case of imminent danger to the existence or safety of the Federal Republic of Germany, or to the life, physical integrity or freedom of a person, or to objects of substantial value if it lies in the public interest to preserve such objects, or for the purpose of fending off terrorist attacks if there is no other suitable way to prevent such dangers.

All persons providing, or contributing to the provision of, telecommunications services are required to assist the Federal Criminal Police Of ce to implement the necessary measures required for the interception/ recording of the communication and to provide all necessary information without delay (Section 20l(5) BKAG). The measures to be taken are further speci ed by Section 110 TKG and the TKÜV/TR-TKÜV.

POLICE ACTS OF THE FEDERAL STATES

Every German federal state has its own Police Act. These Acts in most cases also set forth similar powers for the state police offices as the BKAG does for the Federal Criminal Police Office, as necessary in order to prevent an imminent danger to the life or physical integrity of a person or in similar precarious situations (see, eg Section 34a, 34b of the Bavarian Police Act, ‘BayPAG’). The measures to be taken by the operators of telecommunication systems in assistance of the interception under these state laws are again further specified by Section 110 TKG and the TKÜV/ TR-TKÜV.

In Germany, there appears to be no specific laws that grant government and law enforcement agencies with the legal powers to mandate direct access into a telecommunication service provider’s network without the operational control or oversight of the telecommunication service provider.

DISCLOSURE OF COMMUNICATIONS DATA

THE GERMAN TELECOMMUNICATION ACT (TELEKOMMUNIKATIONSGESETZ)

The German Telecommunications Act (TKG) requires any person providing, or contributing to the provision of, telecommunication services on a commercial basis to provide certain subscriber, line identification and other data upon manual information requests from a range of law enforcement agencies, foreign and domestic intelligence services and other public authorities, where such requests can be based on a legal statutory authorisation (Section 113 TKG).

In addition, Section 112 TKG requires certain providers of publicly available telecommunication services to store certain subscriber, line identification and other data in customer data files to answer automated information requests (handled through the Federal Network Agency Bundesnetzagentur – BnetzA) by courts and a range of public authorities.

CODE OF CRIMINAL PROCEDURE

The Code of Criminal Procedure, or Strafprozessordnung (StPO) further gives the public prosecutor’s office (and, in relation to tax offences, the tax authority) the power to acquire certain traf c data relating to customer communications (Section 100g StPO). Similar powers as under Section 100g StPO are granted to the Customs Criminal Investigation Officer under Section 23g ZFdG; to the Federal Criminal Police Of ce under Section 20m BKAG; to the Federal Of ce for the Protection of the Constitution under Section 8a BVerfSchG; to the Military Counterintelligence Service under Section 4a MADG; and to the Federal Intelligence Service under Section 2a BNDG.

In addition, certain metadata relating to the circumstances of the communication can be obtained by law enforcement agencies, intelligence agencies and other public authorities entitled under the respective legislative instruments, as part of the interception measures ordered according to Section 100a StPO, Section 20l BKAG, Section 3 G10, Section 23a ZFdG and the respective provisions in the Police Acts of the federal states (see Section 5 and 7 TKÜV). Similar principles apply to measures under Section 5 and 8 G10 (Section 2(1) G10).

SUBSCRIBER DATA, LINE IDENTIFICATION AND OTHER DATA

Section 113 TKG requires any person providing, or contributing to the provision of, telecommunication services on a commercial basis to provide certain subscriber, line identi cation and other data (speci ed in Section 95 and 111 TKG) to certain public authorities listed in Section 113(3) TKG (law enforcement agencies, foreign and domestic intelligence services, and other public authorities), as far as necessary for the prosecution of criminal or administrative offences, for averting danger to public safety or order, and/or for the discharge of the legal functions of such agencies.

The request must be made in text form (except in pressing circumstances) and be based on an express legal authorisation. Respective authorisations (which may stipulate further requirements) are, for example, set out in Section 100j StPO, Section 7 and 15 ZFdG, Section 7, 20b and 22 BKAG, Section 22a BPolG, Section 8d BVerfSchG, Section 4b MADG and Section 2b BNDG.

Section 100j StPO gives the public prosecutor’s office (and, in relation to tax offences, the tax authority) the power to request, as part of its criminal investigative powers, certain subscriber, line identification and other data, including access control codes (Section 95 and 111 TKG), where the requested information is necessary to establish the facts or determine the whereabouts of the accused person. Where the information request is directed to obtain access control codes, a prior court order following an application by the public prosecutor’s office is required; yet, in pressing circumstances, the public prosecutor’s office (or certain officials assisting the prosecutor) may also issue an order, which needs to be confirmed by the court without delay. A prior order is not required where the person affected by the request already has or must have knowledge of the request for information or if the use of the data has already been permitted by a court decision.

Similar principles as under Section 100j StPO apply for information requests under the other instruments according to Section 7 and 15 ZFdG, Section 7, 20b and 22 BKAG, Section 22a BPolG, Section 8d BVerfSchG, Section 4b MADG and Section 2b BNDG, as far as the request is necessary for the fulfilment of the respective purposes (eg customs control, the prevention of dangers against the free democratic basic order, terrorist attacks or espionage affairs).

Section 112 TKG requires any provider of publicly available telecommunication services (that in providing commercial telecommunication services allocates telephone numbers or other line identifications or provides telecommunication connections for telephone numbers or other line identifications allocated by others) to store certain subscriber, line identification and other data (specified in Section 111(1) and (2) TKG) in customer data files. These data files must be made available to the BNetzA by means of an automated procedure as necessary for the prosecution of administrative offences under the TKG or the Act Against Unfair Competition (Gesetz gegen unlauteren Wettbewerb – UWG) and for answering information requests by certain public authorities (listed in Section 112(2) TKG). Section 112(5) TKG requires the telecommunication services provider to make the technical arrangements in its area of responsibility as required for handling the automated information requests.

The public authorities may only request information from the customer data  files, as far as such information is necessary for the discharge of their legal functions (as specified by different legal statutes, such as the StPO, BKAG, ZFdG, BNDG, MADG, BVerfSchG, federal and state Acts on the Protection of the Constitution, and Police Acts on federal and state level). The information request by such public authorities must be made by means of an automated procedure to the Federal Network Agency, which will retrieve and forward such information.

TRAFFIC DATA

Section 100g StPO gives the public prosecutor’s office (and, in relation to tax offences, the tax authority) the power to obtain traffic data, also without the knowledge of the person concerned.

The measures pursuant to Section 100g StPO require a prior court order following an application by the public prosecutor’s of ce (or, in relation to tax offences, the tax authority); yet, in pressing circumstances, the public prosecutor’s of ce may also issue an order, which must be confirmed by the court within three working days in order not to become ineffective (Section 100g(2) and 100b(1) StPO).

An order may only be granted where certain facts give rise to the suspicion that a person has either committed a criminal offence of substantial signi cance in the individual case as well (or, in cases where there is criminal liability for an attempt, there was an attempt to commit such an offence, or such offence had been prepared by committing a criminal offence), or has committed a criminal offence by means of telecommunication, and access to the data is necessary to establish the facts or determine the accused person’s whereabouts (and further requirements are met).

The measures may be directed only against the accused person or against persons in respect of whom it may be assumed, on the basis of certain facts, that they are receiving or transmitting messages intended for, or transmitted by, the accused person, or that the accused person is using their telephone connection (Section 100g(2) and 100a(3) StPO).

All persons providing, or contributing to the provision of, telecommunications services on a commercial basis are required to assist the public prosecutor’s office (as well as certain officials working in the police force or, in relation to tax offences, the tax authority) and to provide all necessary information without delay (Section 100g(2) and 100b(3) StPO).

Similar principles as under Section 100g StPO apply for information requests under:

• Section 23g ZFdG and Section 20m BKAG; and

• Section 8a BVerfSchG, Section 4a MADG and Section 2a BNDG (though only an order by the Ministry of the Interior is required).

In addition, traffic data can be obtained by law enforcement agencies, intelligence agencies and other public authorities entitled under the respective legislative instruments, as part of the interception measures ordered according to Section 100a StPO, Section 20l BKAG, Section 3 G10, Section 23a ZFdG and the respective provisions in the Police Acts of the federal states (see Section 5 and 7 TKÜV). Similar principles apply to measures under Section 5 and 8 G10 (Section 2(1) G10). The StPO gives courts and public prosecutors (and certain officials assisting the prosecutor’s office and, in relation to tax offences, the tax authority) the power to request, as part of their criminal investigative powers, the disclosure and, as necessary, the seizure of stored customer communications (Section 94 et. seqq. 98 StPO). This applies to emails on the provider’s mail server and likely also applies to voicemails and similar communications stored by the provider.

Where the content of customer communications is yet to be considered part of an ongoing telecommunication process, then the content of the communication may only be accessed by means of an interception order according to Section 100a and 100b StPO. This also comprises communications that are placed in or retrieved from a storage facility, which is assigned to the primary identification that is to be intercepted (Section 5(1) No. 3 TKÜV).

The request for disclosure under Section 94 and 95 StPO does not require a prior judicial order. Where the request is not complied with, the public prosecutor’s office (or, in relation to tax offences, the tax authority) may initiate the formal seizure of the stored communication according to Section 94 ff., 98 StPO.

The seizure of stored communications requires a prior court order; yet, in exigent circumstances, the public prosecutor’s of ce (or certain officials assisting the prosecutor’s office) may also issue an order. An official who has seized the communication without a prior court order must apply for a court confirmation within three days if neither the person concerned nor a relative was present at the time of seizing the information (or such persons have declared their objection). The person concerned by the seizure may request a court decision at any time (Section 98 StPO).

The order may be granted where there is sufficient probability of a suspicion of a criminal offence and the stored communication may be of importance as evidence for the criminal investigation (subject to a strict proportionality test and a balancing of all the interests involved).

NATIONAL SECURITY AND EMERGENCY POWERS

Except as already outlined above, the German government does not have the legal authority to invoke special powers in relation to access to a communication service provider’s customer data and/or network on the grounds of national security.

German government agencies do not have special powers that can be invoked in time of national crisis or emergency.

OVERSIGHT OF THE USE OF  THESE POWERS

CODE OF CRIMINAL PROCEDURE (StPO)

As well as what is set out above, according to Section 101 StPO, the participants in the telecommunication under surveillance must be notified of any interception measures, including their option to obtain subsequent court relief, unless there are overriding conflicting interests of an affected person. Noti cation must take place as soon as it can be effected without endangering the purpose of the investigation or the life, the physical integrity and/or personal liberty of a person, or significant assets. For up to two weeks following their notification, the participants may apply to the competent court for a review of the lawfulness of the measure, as well as of the manner and means of its implementation. The participants may file a complaint against the court’s decision.There is a dispute if and to what extent the operator of a telecommunication system is entitled to file a complaint (according to Sec. 98(2) or 304(2) StPO) against an interception order issued under Sec. 100a StPO, though it is recognized that there is no legal obligation to verify or challenge the lawfulness of an interception order.

There is a dispute if and to what extent the operator of a telecommunication system is entitled to file a complaint (according to Section 98(2) or 304(2) StPO) against an interception order issued under Section 100a StPO, though it is recognised that there is no legal obligation to verify or challenge the lawfulness of an interception order.

ARTICLE 10 ACT

There is no ex-ante judicial control for measures under the Article 10 Act, ie no court order or warrant is required. However, the interception measures pursuant to Section 3, 5 and 8 G10 require a written order by the Ministry of the Interior (or the relevant highest state authority) following an application by one of the public authorities authorised under the respective provision.

In addition, the so-called G10 Commission may at any time examine – following a complaint or also of its own volition – the admissibility and necessity of the ordered measures.

There are no legal remedies available for a person concerned by an interception measure under Section 3 G10 as long as such measure is not yet communicated to the person (Section 13 G10). After this communication, the person concerned can challenge the interception order before the administrative courts. A communication to the concerned person shall be made after the measure has been completed, unless such communication may endanger the purpose of the interception measure or may cause overall harm for the wellbeing of the federation or its states.

CUSTOMS INVESTIGATIONS SERVICES ACT (ZFdG)

For measures under the ZFdG, similar principles as for measures under Section 100a and 100b StPO apply (see, in particular, Section 23c ZFdG).

FEDERAL CRIMINAL POLICE OFFICE ACT (BKAG)

The measures pursuant to Section 20l BKAG require a prior court order following an application by the President of the Federal Criminal Police Of ce; yet, in pressing circumstances, the President of the Federal Criminal Police Of ce may also issue an order, which must be con rmed by the court within three working days in order not to become ineffective (Section 20l(3) BKAG).

According to Section 20w BKAG, the participants in the communication under surveillance must be noti ed of any interception measures, including their option to obtain subsequent court relief, unless there are overriding con icting interests of an affected person. Noti cation must take place as soon as it can be effected without endangering the purpose of the investigation or the life, the physical integrity and/or personal liberty of a person, or signi cant assets. The participants may  le a complaint against the court’s decision.

POLICE ACTS OF THE FEDERAL STATES

Similar rules as under the BKAG apply under the Police Acts of the federal states (though details may differ from state to state).

SUBSCRIBER DATA, LINE IDENTIFICATION AND OTHER DATA

For manual information requests under Sec. 113 TKG, the judicial oversight and legal remedies depend on the specific different legal statutes granting the authorizations for the information requests.

For information requests pursuant to Sec. 100j StPO, no prior court order is required, except where the information request is directed to obtain access control codes (following an application by the public prosecutor’s office or, in relation to tax offences, the tax authority); in exigent circumstances, the public prosecutor’s office (or certain officials assisting the prosecutor or, in relation to tax offences, the tax authority) may also issue such order, which then needs to be confirmed by the court without delay. A prior order is not required where the person affected by the request already has or must have knowledge of the request for information or if the use of the data has already been permitted by a court decision.

The person concerned must be notified of the information request only in certain cases (relating to data enabling access to terminal devices and requests based on the use of IP- addresses), and only if there are no overriding conflicting interests of an affected person (Section 100j(4) StPO). The notification must take place as soon as it can be effected without endangering the purpose of the information request. The person concerned may challenge the lawfulness of the measure in front of the courts.

Similar rules as under Sec. 100j StPO apply for information requests under Sec. 20b BKAG (which follows the same structure and principles).

For automated information requests under Section 112 TKG, the judicial oversight and legal remedies depend on the speci c different legal statutes de ning the legal functions and powers of the public authorities.

TRAFFIC DATA

In addition to the above, according to

Section 101 StPO, the participants in the telecommunication concerned by the measure surveillance must be noti ed of any disclosure of their traf c data, including their option to obtain subsequent court relief, unless there are overriding con icting interests of an affected person. Noti cation must take place as soon as it can be effected without endangering the purpose of the investigation or the life, the physical integrity and/or personal liberty of a person, or signi cant assets. For up to two weeks following their noti cation, the participants may apply to the competent court for a review of the lawfulness of the measure, as well as of the manner and means of its implementation. The participants may  le a complaint against the court’s decision.

There is a dispute if and to what extent the telecommunication service provider is entitled to  le a complaint (according to Section 98(2) or 304(2) StPO), though it is recognised that there is no legal obligation to verify or challenge the lawfulness of a request.

For information requests under Section 8a BVerfSchG, Section 4a MADG and Section 2a BNDG, no prior court order is required.

However, a prior order by the Ministry of the Interior is necessary (following an application by the respective responsible authority).

With regard to information requests that are ancillary to interception measures according to Section 100a StPO, Section 20l BKAG, Section 3, 5 and 8 G10, and Section 23a ZFdG, the respective judicial oversight procedures for these interception measures extend to the information requests.

The request for disclosure does not require a prior judicial order but may be challenged by the person concerned before the courts.

The seizure of stored communications requires a prior court order; yet, in pressing circumstances, the public prosecutor’s office (or certain officials assisting the prosecutor’s office or, in relation to tax offences, the tax authority) may also issue an order.

An official who has seized the communication without a prior court order must apply for a court confirmation within three days if neither the person concerned nor a relative was present at the time of seizing the information (or such persons have declared their objection). The person concerned by the seizure may request a court decision at any time.

A seizure order by a court may be challenged by the person concerned by filing a complaint.

CENSORSHIP RELATED POWERS

SHUT-DOWN OF NETWORK AND SERVICES

GERMAN TELECOMMUNICATIONS ACT

Section 126 of the German Telecommunications Act entitles the Federal Network Agency (the Bundesnetzagentur) to order ‘necessary measures’ if a network provider violates its obligations under the Act or the EU Roaming Regulation. These measures can extend to the whole network service, or parts of it; however, the measures must be proportionate and only as intrusive as required by the circumstances. Therefore, the Federal Network Agency has the power to order Vodafone to shut down some or all of its network or services, if it determines this to be a necessary measure.

There is a three-step procedure for measures under Section 126:  rst, the network provider is given a deadline (usually one month) to remedy its violation; if it fails to do so within the deadline, the Federal Network Agency can order measures necessary to remedy the violation. In certain cases, the Federal Network Agency can deviate from this procedure and order necessary preliminary measures at the outset; this is usually when the network provider’s violation endangers public safety and order or causes substantial disadvantage to other network providers or users. In case of a severe or repeated violation, the Federal Network Agency may ultimately prohibit a network provider from providing its network or services.

The Federal Network Agency also has powers under Section 115 if a network provider

 

does not fulfill its obligations with regard to public security (for example, data security or technical safety measures). The procedure under Section 115 is similar to the procedure outlined above, with the exception that no preliminary measures can be ordered.

BLOCKING OF URLS & IP ADDRESSES

INTERSTATE BROADCASTING TREATY

Section 59(3) of the Interstate Broadcasting Treaty (the Rundfunkstaatsvertrag) entitles the State Media Authorities (the Landesmedienanstalten) to order necessary measures if a website breaks the law. These measures can extend to requesting a network provider (such as Vodafone) to block access to the website, although this is the last resort and should only be called upon if other measures have failed to remedy the problem. In practice, the State Media Authorities usually receive references from the police or public prosecutor’s office with respect to websites that breach the law before taking any of the aforementioned measures.

POWER TO TAKE CONTROL OF VODAFONE’S NETWORK

The government does not have the legal authority to take control of Vodafone’s network.

OVERSIGHT OF THE USE OF POWERS

GERMAN TELECOMMUNICATIONS ACT

In case of preliminary measures under Section 126 of the German Telecommunications Act, the concerned party is heard by the Federal Network Agency. The Federal Network Agency then decides whether to maintain, alter or set aside its order.

Additionally, because Sections 115 and 125 provide for administrative acts, they can be challenged before Germany’s administrative courts.

INTERSTATE BROADCASTING TREATY

All measures under Section 59(3) of the Interstate Broadcasting Treaty constitute administrative acts and therefore can be challenged before Germany’s administrative courts.

This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in May of 2017.

2018-03-19T21:21:10+00:00 March 15, 2018|Categories: legal frameworks|
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