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Germany: Act to Improve Anti-Terror Information Exchange in Force

(Sept. 8, 2016) On July 30, 2016, the Act to Improve Information Exchange in the Fight Against International Terrorism entered into force in Germany. It amends several existing laws that govern anti-terrorism measures, but also equips the German domestic intelligence agency with new means to fight international terrorism, in particular with regard to information-sharing in common databases.  (Gesetz zum besseren Informationsaustausch bei der Bekämpfung des internationalen Terrorismus [Act to Improve Information Exchange in the Fight Against International Terrorism] (Act), (July 26, 2016), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1818.)

Background

The legislation was prompted in part by the “NSA affair.” When reports emerged that  the German domestic intelligence service, the Federal Office for the Protection of the Constitution (BfV), and the German foreign intelligence service, the Federal Intelligence Service (BND), were supplying the U.S. National Security Agency (NSA) and other foreign intelligence services with data and content on communication activities, allegedly without a proper legal basis, the German Bundestag (parliament) established a Committee of Inquiry and introduced the new legislation.  (Motion Tabled by the CDU/CSU, SPD, The Left Party and Alliance 90/The Greens Parliamentary Groups: Establishment of a Committee of Inquiry, Deutscher Bundestag: Drucksachen und Protokolle [BT-Drs.] 18/843 (Mar. 18, 2014), Bundestag website.)

According to the explanatory memorandum accompanying the Act, the legislation sets up an improved system of international information-sharing between intelligence services with regard to Islamic terrorist activities, in the wake of the terrorist attacks in Paris on November 13, 2015 and in Brussels on March 22, 2016. Intelligence services of all 28 European Union Member States plus Norway and Switzerland already exchange information inside the informal non-EU body “Club de Berne.” The Counter Terrorist Group (CTG), a derivative of the Club de Berne, is focused on Islamic terrorism and is setting up a new platform for information-sharing in The Hague, Netherlands.  The platform will include the creation of a common database by European intelligence services to share information on terrorist activities.  The new German legislation created the legal basis to allow the BfV to participate in the CTG database.  (Entwurf eines Gesetzes zum besseren Informationsaustausch bei der Bekämpfung des internationalen Terrorismus [Draft Act to Improve Information Exchange in the Fight Against International Terrorism], BT-Drs. 18/8702 (June 7, 2016), at 12.)

Amendments to the Act on the Federal Office for the Protection of the Constitution

The most important feature of the new legislation is an amendment to the Act on the Federal Office for the Protection of the Constitution, which governs the BfV. (Gesetz über die Zusammenarbeit des Bundes und der Länder in Angelegenheiten des Verfassungsschutzes und über das Bundesamt für Verfassungsschutz (Bundesverfassungsschutzgesetz – BVerfSchG) [Act on the Federal Office for the Protection of the Constitution (Federal Constitution Protection Act – BverfSchG)] (Dec. 20, 1990), BGBl. I at 2954, as amended, GERMAN LAWS ONLINE.)

The amendment authorizes the BfV to create or participate in common databases with foreign intelligence services for the investigation of attempts or completed actions directed at events or groups of people if a number of requirements are fulfilled. (Id. § 22b ¶ 1 & § 22c.)  The investigation of such attempts and actions must be essential for the protection of public security in Germany and the respective participating states, and adherence to basic rule of law principles must be guaranteed in the participating states. (Id. § 22b ¶ 1.) Furthermore, the suspected crime must concern a subject that falls within the scope of competency of the BfV, and the Federal Ministry of the Interior has to agree to the creation of the common database. (Id.) The amending Act is focused on cooperation with neighboring states, EU Member States, and NATO Member States. The participation of other states requires additionally that vital security interests of Germany are threatened; for example, such participation would be permitted if the commission of serious crimes against the safety of a state or an international organization is suspected. (Id. § 22b ¶ 2.)

The amendment also reduces the minimum age of persons whose personal data can be saved, changed, or used by the BfV from the current 16 years to 14 years. (Id. § 11 ¶ 1.)  The reduction of the minimum age was incorporated to combat the growing radicalization of minors. (Beschlussempfehlung und Bericht des Innenausschusses [Recommendation and Report of the Committee on Internal Affairs], BT-Drs. 18/8917 (June 22, 2016), at 6.)

Amendments to the Telecommunications Act

Telecommunications companies are generally obligated to collect personal information about their customers, including names, addresses, and birth dates, before activating a phone contract. (Telekommunikationsgesetz [TKG] [Telecommunications Act [TKG]] (June 22, 2004), BGBl. I at 1190, as amended, § 111, ¶ 1, GERMAN LAWS ONLINE.) The amendment of the Act now requires companies to verify the identity of customers who buy prepaid phones by checking identity documents.  (Id. § 111 ¶ 1.) The change is supposed to ensure that personal information collected by telecommunications companies is correct so that the authorities will be able to match phone numbers with individuals during an investigation.  The information on customers who bought prepaid phones had proven to be unreliable in the past. (Entwurf eines Gesetzes zum besseren Informationsaustausch bei der Bekämpfung des internationalen Terrorismus, supra, at 22.)

Amendments to the Federal Police Act

The Federal Police Act, as amended by the new legislation, now allows the Federal Police to use undercover police officers to gather information for the prevention of crimes, rather than only after a crime has already been committed. (Gesetz über die Bundespolizei (Bundespolizeigesetz – BPolG) [Act on the Federal Police (Federal Police Act – BpolG)] (Oct. 19, 1994), BGBl. I at 2978, as amended, § 28 ¶ 2, no. 4, GERMAN LAWS ONLINE.)   A court order is generally required if the measure is aimed at a specific person or if it involves entering an apartment by the undercover police officer.  (Id. § 28 ¶ 3a.)  The amendment was introduced to fight organized human smuggling networks, which generally operate in secrecy.  (Entwurf eines Gesetzes zum besseren Informationsaustausch bei der Bekämpfung des internationalen Terrorismus, supra, at 12.)

Prepared by Felix Beulke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.