The Federal Data Protection Commissioner Ulrich Kelber has repeatedly pushed for a moratorium on security legislation in recent years. The federal government does not think so. The recommendation of such a pause for thought ignores, according to her, “that the appropriate adaptation of security legislation to new social developments and realities is indispensable” if the state is to be able to guarantee the security of its citizens in the future.
“Up-to-date instruments” against terrorist attacks
“This is particularly true in areas in which immense damage to life and limb threatens, such as terrorist attacks,” emphasized the lead Federal Ministry of the Interior in one now published response to a request from the FDP parliamentary group. “Alternative, up-to-date instruments adapted to technical developments, which of course require a legal regulation and basis, must be continuously considered.”
A categorical prohibition of new safety laws would also “represent the risk of a structural violation of the prohibition of undersize”, the executive explains. This obliges the state to take sufficient normative and factual measures for an appropriate and effective protection of the fundamental rights protected legal interests. The government therefore also has concerns “whether self-restraint by the legislature is compatible with the principle of democratic legislation”.
Federal Government: No need to review the powers
Kelber made himself in about mid-2019 28. Activity report of the Federal Data Protection Authority strong for a security law moratorium. At a conference two years ago, the data protection activist also pleaded for a corresponding pause. It is important to reduce the “endless list of encroachments on fundamental rights” introduced on September 11, 2001. Almost none of the relevant standards had been evaluated so far, the inspector complained at the time. Nevertheless, the interior department continues to follow the “misleading” line: “More data, more IT”. It is also significant that he has no authority to issue orders to the security authorities, so he has to go to court in the event of grievances.
The Federal Government also sees at least “currently no need” for the evaluation process suggested by Kelber, which should first be used to check which powers already exist before the introduction of further security authority competencies. In the context of relevant legislative proposals, the existing authorizations of the respective security authorities would also be considered.
The legal requirements are sufficiently high
In the view of the executive, additional reporting obligations on the use of relevant powers do not need to be created “at least for the time being” either. There are already a large number of relevant requirements on periodic reporting obligations, “which, by the way, also serve the purpose of ongoing evaluation”.
A data transfer between the authorities “is linked to high, legally standardized requirements”, emphasizes the Ministry of the Interior. In the relationship between the police and the secret services there is also “an informational principle of separation derived from the constitution”. There are good reasons why the German security architecture “does not provide for the data collected by all security authorities for all purposes to flow together in one place” and be available to all of their employees.
Kelber: Disregarded the separation requirement, secret source TKÜ possible
Kelber and legal scholars, on the other hand, warned in the debate on the government’s draft law for the use of state Trojans by all secret services that the planned source telecommunications monitoring could quickly lead to an even more extensive clandestine online search, “which is actually not supposed to be introduced” . Furthermore, the requirements roughly correspond to those in the police sector. This violates the separation requirement.
According to the executive branch, all measures introduced by the Ministries of the Interior and Justice in the current legislative period are not comparable to a “precautionary, unprovoked data collection in the sense of the case law of the Federal Constitutional Court on data retention” . At the EU level, too, one could not see any legislative initiatives with which the citizens’ perception of freedom would be “totally recorded and registered”.
The Bundestag, “as the constitutional body directly elected by the people of the state, carries out the tasks assigned by the questioners to a ‘Freedom Commission’,” says the Interior Ministry. The FDP had alluded to an independent body that was to be set up along the lines of the economic wise men or the German Ethics Council with experts from the fields of justice, science and civil society. The government also reiterates that it does not consider the frequently requested preparation of a surveillance accounts to be either necessary or practicable.
(tiw)
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