Security Laws on the Test Bench
Institute awarded commission for overall surveillance account
The Max Planck Institute for the Study of Crime, Security and Law (MPI-CSL) has been awarded a commission by the Federal Ministry of the Interior and Community (BMI) and the Federal Ministry of Justice (BMJ) for the scientific evaluation of security laws in Germany. The result of the survey will be an inventory of existing surveillance powers and an analysis of their actual and legal impacts. The research endeavor, also known as the “overall surveillance account”, is anchored in the German federal government’s coalition agreement.
The overall surveillance account comprises a legal and empirical assessment that is intended to show, in particular, what implications surveillance powers have on freedom and democracy in Germany's security laws and their practical application. According to the BMI, “The overall surveillance account is therefore also an important component of the coalition agreement’s trend reversal towards a domestic and legal policy based on fundamental rights and evidence”. In a liberal constitutional state, it is not only the proportionality of individual surveillance powers that matters. There should also be no excess of surveillance as a whole.
The overall surveillance account is due to be completed after a one-year period of research. A first interim report is expected in six months. The project is based in the MPI-CSL’s Department of Public Law under the direction of Ralf Poscher. Ralf Poscher had already created a model for a periodic surveillance barometer for Germany, together with senior researcher Michael Kilchling, prior to being awarded this commission.
The Groundwork
For the purpose of the German surveillance barometer, the researchers first gained an overview of the data collections that should be included. The surveillance scenarios range from traditional telecommunications surveillance to the retrieval of account data from telemedia services and even to the unwarranted retention of customer data by banks to monitor money laundering or of airline passenger data to combat terrorism.
Next, the researchers analyzed which security authorities – German Federal Criminal Police Office (BKA), state police, public prosecutors – have access to this data on the basis of which legal principles and under which legal conditions access can take place at all. Only then can specific access figures for each of the selected scenarios in a specific observation period be determined. To this end, the research team collects anonymized statistical data; they are not privy to any sensitive personal information.
The Full Account
For their research project, the researchers have developed a formula that takes into account the number of accesses (quantitative component) and their respective intensity value (qualitative component). “In this way, we can measure the monitoring intensity according to a standardized scale,” explains the research team. Criteria such as the secrecy of a measure, the grounds for it, its duration, and also whether or not the surveillance measure needs to be ordered by a judge, play a role in determining the intensity of the intrusion.
Ultimately, the final report will provide a detailed overview of digital surveillance in Germany. In the future, the periodic system will also make it possible to regularly monitor previous and further surveillance developments, both overall and in individual sectors (telecommunications data, financial transaction data, mobility data, etc.), and to identify sensitive areas. The concept is designed in such a way that it can be continuously expanded. Going forward, it could also be further developed into an EU-wide follow-up project, which would then enable the level of surveillance in different countries to be compared.
