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BKA Gesetz
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Freedom in the digital age
Art. 1, 2

Federal Criminal Police Office Act (BKA Act)

The BKA Act provides for far-reaching surveillance powers and hence violates fundamental rights. We have filed a constitutional complaint.

The GFF has filed a constitutional complaint against the Federal Criminal Police Office Act (BKA Act). The law confers far-reaching surveillance powers on the Federal Criminal Police Office (Bundeskriminalamt or "BKA") and allows the use of state trojans. The complaint also asserts that the BKA's data collection needs to be regulated further: the current storage and use of personal data by the BKA applies inconsistent standards and does not sufficiently protect against the risks of police data collection.

The GFF has filed a constitutional complaint in Karlsruhe against the Federal Criminal Police Office Act (BKA Act) in its version of 1 June 2017. Various provisions of the BKA Act violate the fundamental right to informational self-determination as well as the right to a guarantee of the confidentiality and integrity of information technology systems, also called the IT privacy right.

Suspects' contacts can be monitored

The BKA Act empowers the Federal Criminal Police Office to employ a range of surveillance measures. In particular, far-reaching means of covert surveillance are available for counter-terrorism, such as wiretapping or the use of undercover investigators. As early as 2016, the Federal Constitutional Court ruled in its decision on the old BKA Act that these means may only be used under certain constitutionally defined requirements. The Federal Constitutional Court therefore ordered the legislature to improve the BKA Act and to ensure that the encroachments on fundamental rights contained therein are always in proportion to their goal, the defence against terrorism.

This is however not the case in the new version of the BKA Act of 2017. People who have only had contact to a suspect can still become the target of surveillance measures. This also affects two of the complainants in the constitutional complaint, who are in contact with suspects through their professional activities as lawyers. The surveillance measures available to the BKA in such a case affect the core area of a person's private sphere. Despite that, the conditions for surveillance are too vague and broad.

State trojan jeopardises IT security

In addition, since 2017, the BKA Act - like many police laws - contains powers to use so-called state trojans. The BKA can carry out online searches and analyse ongoing communications (source tapping) to counter terrorism. For this purpose, the BKA is allowed to install state spying software on the computers of suspects and to exploit security vulnerabilities in hardware and software that are unknown to the manufacturers. This way of dealing with IT security vulnerabilities threatens the IT security of all citizens, when in fact the government should be protecting it. The state trojan therefore violates the so-called IT privacy right, which guarantees the confidentiality and integrity of information technology systems.

BKA data collection needs specific boundaries

Finally, the constitutional complaint aims to regulate the BKA's data files in conformity with the constitution. In this respect, the constitutional complaint breaks new ground, since specific constitutional standards for the collection and storage of data by the BKA are still lacking. Sensitive personal data can already be stored on a large scale on the basis of vague indications, sometimes even on the basis of mere suspicions, and used without further factual and temporal limits. As a result, comprehensive personality profiles of people who have never done anything wrong can be created and remain stored permanently.

The BKA's data collection extends to considerable groups of the population and creates the risk for the individuals concerned to become victims of discriminatory interrogations up to measures depriving them of their liberty. With regard to the BKA's data collections, the constitutional complaint submits a proposal for specifying the necessary constitutional standards.

Numerous violations of fundamental rights

Comprehensive surveillance authorisations, state trojans, uncontrolled data collection - the BKA Act contains a number of unconstitutional encroachments on fundamental rights. The five complainants of the constitutional complaint are particularly likely to be affected by this due to their professional or other activities, but ultimately all citizens can be targeted by the BKA through no fault of their own. With our constitutional complaint, we want to ensure that these abuses are remedied and that the Federal Constitutional Court creates specific standards for the retention and use of data by the BKA.