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1. ------IND- 2007 0462 D-- EN- ------ 20070917 --- --- PROJET
Draft Act
of the Federal Government
Act re-regulating telecommunications monitoring and other covert investigative
measures and transposing Directive 2006/24/EC1
A. Problem and objective
The Federal German Government long ago announced the creation of a harmonised general
system of criminal procedure-related secret investigation methods (cf. Parliamentary Paper
702/01, p. 10 et seq. – already in the 14th legislative period). In order to set a corresponding
re-regulation on a firm footing taking account of the needs of law enforcement practices and
the state of talks in jurisprudence, the Federal German Government has obtained jurispru-
dential and legal opinions (cf. Wolter/Schenke [ed.], Zeugnisverweigerungsrechte bei [ver-
deckten] Ermittlungsmaßnahmen, 2002 [Entitlement to refuse to testify in the case of [covert]
investigative measures]; Albrecht/Dorsch/ Krüpe, Rechtswirklichkeit und Effizienz der Über-
wachung der Telekommunikation nach den §§ 100a, 100b StPO und anderer verdeckter Er-
mittlungsmaßnahmen, 2003 [Legal reality and efficiency of the monitoring of telecommunica-
tions pursuant to Sections 100a and 100b of the Code of Criminal Procedure and other cov-
ert investigation measures]; Meyer-Wieck, Rechtswirklichkeit und Effizienz der akustischen
Wohnraumüberwachung [„großer Lauschangriff“] nach § 100c I Nr. 3 StPO, 2004 [Legal real-
ity and efficiency of the acoustic surveillance of private premises [“eavesdropping˝] pursuant
to Section 100c I point 3 of the Code of Criminal Procedure, 2004]). Case histories from the
experience of public prosecutors and the police have also contributed to this. The knowledge
obtained herefrom substantiates the need for an amendment, particularly in the area of tele-
communications monitoring, on account of technical progress and problems in the practice of
law enforcement in connection with the use of the statutory regulations hitherto in force.
The need for an amendment also arises as a result of several decisions made by the Federal
Constitutional Court:
1This Act (also) serves to transpose Directive 2006/24/EC of the European Parliament and of the Council of 15
March 2006 on the retention of data generated or processed in connection with the provision of publicly avail-
able electronic communications services or of public communications networks and amending Directive
2002/58/EC (OJ L 105 p. 54 et seq.).
2
In its judgment of 27 July 2005 – 1 BvR 668/04 – (BVerfGE 113, 348, 391), the Federal Con-
stitutional Court clarified that regulations for the protection of the core area of private life are
also necessary in the area of telecommunications monitoring. This requirement laid down for
the area of preventive monitoring of telecommunications shall be applied to the area of juris-
diction of the Code of Criminal Procedure [German designation: StPO].
The Decisions of 4 February 2005 – 2 BvR 308/04 – (NJW 2005, 1637, 1639 et seq.)
and 2 March 2006 – 2 BvR 2099/04 – (BVerfGE 115, 166 et seq.) give rise to the
need for clarification as regards which legal provisions are to be followed in connec-
tion with the collection of traffic data from data carriers if, on conclusion of the com-
munication, they are not within the domain of the telecommunications service pro-
vider.
Finally, it is necessary to apply the case law of the Federal Constitutional Court relat-
ing (including ex post facto) to legal protection (BVerfGE 30, 1, 23 et seq., 30 et seq.;
65, 1, 46; 67, 157, 185; 100, 313, 361 et seq., 364; 103, 142, 151; 105, 239, 248;
107, 299, 337 et seq.), the deletion of data (BVerfGE 69, 1, 49; 100, 313, 364 et
seq.), the use of data (BVerfGE 100, 313, 360; 107, 299, 328; 109, 279, 374, 379 et
seq.; 110, 33, 73, 75) and the marking obligation that enables the proper use of the
data (BVerfGE 100, 313, 360; 109, 279, 374, 379 et seq.) consistently to all interven-
tion-intensive covert investigative measures.
The need for an amendment also arises as a result of the stipulations of the Council of
Europe’s Convention on Cybercrime, which Germany intends to ratify in the near future.
In addition, the requirements of Directive 2006/24/EC of the European Parliament and of the
Council of 15 March 2006 on the retention of data generated or processed in connection with
the provision of publicly available electronic communications services or of public communi-
cations networks and amending Directive 2002/58/EC (OJ L 105, p. 54 et seq.), which en-
tered into force on 3 May 2006, need to be transposed into national law, in particular with
regard to the national introduction of obligations to store traffic data and related statistics and
reporting obligations. Article 15 of Directive 2006/24/EC in principle provides for transposal
by 15 September 2007.
B. Solution
3
The law relating to the covert, criminal procedure-related investigative measures regulated in
Sections 98a to 101, 110a to 110e and 163d to 163f of the Code of Criminal Procedure is
undergoing a comprehensive revision.
Whilst retaining the previous structure, the draft Act is intended to harmonise the procedural
requirements and the organisation, in such a way as to protect people’s basic rights, of the
covert, criminal procedure-related investigative measures, and so give this whole set of regu-
lations a clearer organisation that complies with legal stipulations, whilst at the same time
also taking account of practical requirements. Where necessary, individual investigative
measures should be established on a clear legal basis that is compatible with the constitu-
tion. The draft Act is intended to take account of new technical developments – where nec-
essary and permissible also with a view to the future. The covert investigative measures,
which in recent years have gained significantly in importance over the conventional "open"
measures of the law enforcement agencies and have proven to be an indispensable instru-
ment for combating criminality, transaction and economic crime that are difficult to investigate
as well as criminal offences committed using modern communications technologies, should
be regulated in a clearer and more standard-transparent way in order to improve both the
legal protection of the parties affected by such measures as well as the practicability of these
regulations in the practice of the public prosecutor and the police. Specifically:
The new provision of Section 53b of the Code of Criminal Procedure-Draft introduces a
harmonised system to take account of the interests outside of interrogation situations that
are protected by the entitlements on the part of the keeper of professional secrets to re-
fuse to testify (Sections 53, 53a of the Code of Criminal Procedure).
Section 101 of the Code of Criminal Procedure-Draft is reformulated into a provision that
systematically concludes the regulations of Sections 98a et seq of the Code of Criminal
Procedure:
The procedural regulations that protect people’s basic rights and are necessary for all covert
investigative measures that require more intensive intervention (search for criminals, confis-
cation of post, telecommunications monitoring, acoustic surveillance within and outside of
private premises, collection of traffic data, technical and long-term observation, employment
of undercover investigators, dragnet techniques, police observation alerts) are summarised
here in a general and clear manner, in accordance with the case law of the Federal Constitu-
tional Court (BVerfGE 100, 313 et seq – G 10 Act; BVerfGE 109, 279 et seq – acoustic sur-
veillance of private premises; BVerfGE 113, 348 et seq – Lower Saxon Act on the protection
of public safety and order), and regulate:
4
− the obligation to identify the information obtained through covert investigative meas-
ures; this will ensure that the restrictive regulations applying to the use of intervention-
intensive covert investigative measures (cf. also Section 161(2), Section 477(2) of the
Code of Criminal Procedure-Draft) can be observed;
− the subsequent notification of persons affected by covert investigative measures;
− the group of persons that are to be notified; describing this group in terms of specific
measures and specific requirements relating to the circumstances under which notifica-
tion is to be omitted or deferred will remove any uncertainties relating to interpretation
in practice.
− the requirement for judicial consent (multiple times, where applicable) for deferment of
notification;
− the possibility of subsequent judicial legal protection – also effective after the measure
has been carried out – for the persons affected by covert investigative measures;
− the obligation to erase the intelligence obtained from covert investigative measures as
soon as it is no longer required for the purposes of law enforcement or for any judicial
legal protection.
The “change of use” of the data obtained through covert investigative measures for use as
evidence in other criminal proceedings and the use of the data obtained through covert in-
vestigative measures with a different legal basis – in particular on the basis of preventive
police action – as evidence in criminal proceedings is, where the measures in question
are permissible only in the case of certain suspected criminal offences in accordance with
the Code of Criminal Procedure, made consistently dependent on whether the new use
also relates to criminal offences that permit the use of the measure under the Code of
Criminal Procedure (Section 161(2), Section 477(2) of the Code of Criminal Procedure-
Draft).
The list of criminal offences that constitute a prerequisite for telecommunications monitor-
ing under Section 100a of the Code of Criminal Procedure is systematically rearranged,
revised and restricted to serious criminal offences (including in individual cases) (Section
100a(1) and (2) of the Code of Criminal Procedure-Draft).
5
Section 100a(4) of the Code of Criminal Procedure-Draft ensures the protection of the
core area of private life in accordance with the stipulations of the Federal Constitutional
Court also with regard to telecommunications monitoring.
The need for regulation brought about by the Council of Europe’s Convention on Cyber-
crime is fulfilled by the reformulation of Section 100g of the Code of Criminal Practice into
an authorisation for the collection of data and the extension of the authorisation for the
examination of data carriers to include storage media that are networked with these data
carriers (although spatially separated from them) (Section 110(3) of the Code of Criminal
Procedure-Draft).
The creation of a concentration regulation for the carrying out of judicial investigative acts
strengthens the legal control aimed at by the requirement of judicial authority (Section
162(1) of the Code of Criminal Procedure-Draft).
Also in the case of the individual orders for investigations, the control aimed at by the re-
quirement of judicial authority is strengthened through the harmonisation of the compe-
tences for issuing orders and the duration of the orders (Section 100b(1) and Sec-
tion 100f(4), Section 100g(2) sentence 1, Section 100i(3), Section 163f(3) sentence 3, in
each case in conjunction with Section 100b(1) of the Code of Criminal Procedure-Draft).
In order to transpose the Directive relating to the “retention” of traffic data, regulations
concerning corresponding storage obligations are laid down in the Telecommunications
Act (in particular in Sections 113a and 113b of the Telecommunications Act-Draft) and
regulations concerning collection of the related statistics and reporting obligations are laid
down in the Code of Criminal Procedure (Section 100g of the Code of Criminal Procedure-
Draft).
In addition, Section 100b(5) and (6) of the Code of Criminal Procedure-Draft creates a
uniform provision for the collection of statistics relating to telecommunications monitoring
measures under Section 100a of the Code of Criminal Procedure-Draft, which replaces
Section 110(8) of the Telecommunications Act and establishes a definitive statutory regu-
lation for the statistical reports of the judicial departments of the Länder and the General
Federal Attorney at the Federal Supreme Court of Justice.
As a result of the inclusion of tax offences in the list of criminal offences that justify moni-
toring measures in Section 100a(2) of the Code of Criminal Procedure-Draft, the draft also
6
eradicates discrepancies in classification and problem situations in Section 370 et seq of
the Fiscal Code (German designation: AO).
C. Alternatives
None.
D. Public budgetary costs
1. Budget expenditure excluding enforcement costs
None.
2. Enforcement costs
The revision of the regulation of covert investigative measures in the Code of Criminal
Procedure (Article 1 of the draft Act) is expected to result in both additional as well as
reduced costs for the law enforcement agencies and the courts of the Bund and the
Länder. Overall, the additional and reduced costs are expected to balance each other
out, so that the revised regulations relating to covert investigative measures in the
Code of Criminal Procedure will have a neutral effect in terms of costs.
The amendment to the provisions of the Telecommunications Act in Article 2 will give
rise to additional enforcement costs for the Federal Network Agency, separated into
physical investments and personnel costs, which are estimated by the Federal Ministry
of Economics and Technology to be as follows: In the area of the automated informa-
tion procedure in accordance with Section 112 of the Telecommunications Act, invest-
ment costs in the region of EUR 1 million are expected for expanding the system. At
the same time, the personnel requirements for the qualified planning and updating of
the project are expected to be two clerical posts and two ancillary clerical posts. This is
a result of the extension of the retrieval options to include e-mail addresses and the re-
lated five-fold increase in the associated undertakings. Finally, as a result of the obliga-
tion to store traffic data there is an increased requirement for control within the frame-
work of the supervision under Section 115 of the Telecommunications Act, including
7
the application of new actions subject to administrative fines, which creates the need
for two executive posts with legal training and two clerical posts. Personnel costs
amounting to a total of around EUR 640 000 per year are expected as a consequence.
No enforcement costs will arise for the municipalities.
E. Other costs
For the undertakings affected by the obligation to retain traffic data there will be additional
expenditure as a result of the fulfilment of the retention obligations provided for in Sections
111 and 113a of the draft Telecommunications Act and this can only be compensated for to a
small extent by the relief afforded to undertakings elsewhere in the draft. Depending on the
size of the undertaking affected and its previous involvement in the retention of data, the ad-
ditional costs may be between a few thousand and several hundred thousand euros. It can
be expected that the undertakings affected will include the additional costs in their pricing
and – provided this is permitted by the telecommunications market that is affected by the
retention obligation throughout the EU – will pass them on to the customer. The retail price
index in the area of telecommunications services may therefore increase slightly.
No costs over and above this will be incurred by the business sector, particularly by medium-
sized undertakings. The Order is not therefore expected to have any further impact on indi-
vidual prices or the general price index, in particular the retail price index.
F. Administrative costs
The interdepartmental consultation was initiated before 1 December 2006.
Act re-regulating telecommunications monitoring and other covert investigative
measures and transposing Directive 2006/24/EC1
of [date]
The German Bundestag has passed the following Act:
Article 1
Amendment of the Code of Criminal Procedure
The Code of Criminal Procedure in the version published on 7 April 1987 (Federal Law Ga-
zette I p. 1074, 1319), most recently amended by ..., is amended as follows:
1. The following Section 53b is inserted after Section 53a:
“Section 53b
(1) An investigative measure which is targeted at any person referred to in Section
53(1) sentence 1 point 1, 2 or 4 and which is expected to provide information regarding
which this person would be entitled to refuse to testify is impermissible. Nevertheless,
the information obtained must not be used. Records relating to this must be deleted
without delay. The fact that the information was obtained and the records deleted shall
be documented. Sentences 2 to 4 shall apply accordingly if, as a result of an investiga-
tive measure that is not targeted at a person referred to in Section 53(1) sentence 1
point 1, 2 or 4, information is obtained about a person referred to therein regarding
which this person would be entitled to refuse to testify.
(2) If a person referred to in Section 53(1) sentence 1 point 3 to 3b or point 5 would be
affected by an investigative measure and as a result information would probably be ob-
tained regarding which this person would be entitled to refuse to testify, this shall be
given particular consideration when examining proportionality in consideration of the
1This Act (also) serves to transpose Directive 2006/24/EC of the European Parliament and of the Council of 15
March 2006 on the retention of data generated or processed in connection with the provision of publicly avail-
able electronic communications services or of public communications networks and amending Directive
2002/58/EC (OJ L 105 p. 54 et seq.).
2
public interest in the tasks performed by this person and the interest in the confidential-
ity of the facts entrusted or made known to this person. Where necessary in this re-
spect, the measure shall be refrained from or, where possible in light of the nature of
the measure, restricted. Sentence 1 shall apply accordingly to the use of information as
evidence.
(3) Paragraphs 1 and 2 shall be applied accordingly if the person referred to in Section
53a is entitled to refuse to testify.
(4) Paragraphs 1 to 3 shall not be applied if criminal proceedings have been instigated
against the person entitled to refuse to testify on account of his suspected involvement
in the criminal offence or in assisting offenders, obstructing criminal justice or handling
stolen goods. If prosecution of the criminal offence is only possible on petition or with
authorisation, sentence 1 shall be applied in the cases under Section 53(1) sentence 1
point 5, as soon and insofar as the said petition to prosecute has been filed or the said
authorisation granted.
(5) Sections 97 and 100c(6) remain unaffected.”
2. In Section 58a(2) sentence 2, the citation “Section 100b(6)” is replaced by the citation
“Section 101(10)”.
3. Section 97 is amended as follows:
a) Paragraph 2 is amended as follows:
aa) In sentence 1, the word “electronic” is inserted in front of the word “health
card”.
bb) Sentence 3 is worded as follows:
“The seizure restrictions shall not apply if criminal proceedings are insti-
gated against the person entitled to refuse to testify on account of his sus-
pected involvement in the criminal offence or in assisting offenders, ob-
structing criminal justice or handling stolen goods, or if it relates to articles
3
produced through a criminal offence or that were used or were intended to
be used to commit a criminal offence or are a result of a criminal offence.”
b) In paragraph 5 sentence 2, the word "applies" is replaced by the words "and Sec-
tion 53b(4) sentence 2 apply".
4. Section 98 is amended as follows:
a) In paragraph 1 sentences 1 and 2, the words "the judge" are replaced in each
case by the words "the court".
b) Paragraph 2 is amended as follows:
aa) In sentences 1 and 2, the words “judicial” are replaced in each case by the
words “court”.
bb) Sentences 3 to 6 are replaced by the following sentences:
“As long as public charges have not yet been brought, the decision shall be
made by the competent court in accordance with Section 162(1). If the pub-
lic charges have been brought, the decision shall be made by the court
dealing with the matter. The person concerned may also submit the appli-
cation to the local court in whose district the seizure took place. This court
shall pass the application on to the competent court.
c) In paragraph 3, the word "judge" is replaced by the word "court".
5. Section 98b is amended as follows:
a) Paragraph 1 is amended as follows:
aa) In sentence 1 the words "the judge" are replaced by the words "the court".
bb) In sentence 2, the word "judicial" is replaced by the word "court".
4
cc) In sentence 3, the word "judge" is replaced by the word "court".
b) In paragraph 2 sentence 1, the words "the judge" are replaced in each case by
the words "the court".
c) Paragraph 3 sentence 3 is deleted.
d) Paragraph 4 is amended as follows:
aa) Sentence 1 is deleted.
bb) In the previous sentence 2, the words "pursuant to" are replaced by the
words "in accordance with".
6. Section 100 is amended as follows:
a) In paragraph 1 the words "the judge" are replaced by the words "the court".
b) In paragraph 2, the words "by the judge" are replaced by the words "by the
court".
c) Paragraph 3 is amended as follows:
aa) In sentence 1, the word “articles” is replaced by the words “postal items”
and the word “judge” is replaced by the word “court”.
bb) In sentence 2, the word "he" is replaced by the word "it".
cc) In sentence 4, the word “articles” is replaced by the words “postal items”
and the word “judge” is replaced by the word “court”.
d) Paragraph 4 is amended as follows:
aa) In sentence 1, the words "the judge competent pursuant to Section 98" are
replaced by the words "the court competent pursuant to Section 98".
5
bb) In sentence 2, the words “a delivered article” are replaced by the words “a
delivered postal item” and the words “the judge” are replaced by the words
"the court".
e) The following paragraphs (5) to (6) are added:
“(5) Postal items the opening of which has not been ordered shall be forwarded
immediately to the intended recipient. The same shall apply if, after opening the
item, it is not necessary to retain it.
(6) A copy of the part of a retained postal item, the withholding of which does not
seem to be necessary for the investigation, shall be passed on to the intended
recipient.
7. Sections 100a and 100b are worded as follows:
“Section 100a
(1) The telecommunication may be monitored and recorded, whether or not with the
knowledge of the person concerned, if
1. certain facts substantiate the suspicion that a person was the perpetrator of or ac-
cessory to a serious criminal offence as referred to in paragraph 2 or, in cases
where the attempt is punishable, attempted to commit a criminal offence or prepared
the offence by committing a criminal offence;
2. the criminal offence is serious, even in individual cases, and
3. the investigation of the facts or determination of the whereabouts of the suspect
would otherwise be significantly more difficult or fruitless.
(2) Serious criminal offences within the meaning of paragraph 1 point 1 are:
1. from the Criminal Code:
6
a) criminal offences against peace, of high treason and of endangering the democ-
ratic state based on the rule of law as well as treason and endangering external
security pursuant to Sections 80 to 82, 84 and 85, 87 to 89 and 94 to 100a;
b) bribery of elected representatives pursuant to Section 108e;
c) criminal offences against national defence pursuant to Section 109d to 109h;
d) criminal offences against public order pursuant to Section 129 to 130;
e) counterfeiting of money or stamps pursuant to Sections 146 and 151, in each
case in conjunction with Section 152, and pursuant to Section 152a(3) and Sec-
tion 152b(1) to (4);
f) sexual offences in the cases of Sections 176a, 176b, 177(2) point 2 and Sec-
tion 179(5) point 2;
g) distribution, acquisition and possession of child pornography publications pursu-
ant to Section 184b(1) to (3);
h) murder and manslaughter pursuant to Sections 211 and 212;
i) criminal offences against personal liberty pursuant to Sections 232 to 233a, 234,
234a, 239a and 239b;
j) gang theft pursuant to Section 244(1) point 2 and aggravated gang theft pursuant
to Section 244a;
k) robbery and extortion pursuant to Sections 249 to 255;
l) commercial handling of stolen goods, gang handling of stolen goods and com-
mercial gang handling of stolen goods pursuant to Sections 260 and 260a;
m) money laundering and concealment of unlawfully obtained assets pursuant to
Section 261(1), (2) and (4);
7
n) fraud and computer fraud under the conditions set out in Section 263(3) sentence
2 and in the case of Section 263(5), in each case in conjunction with Section
263a(2);
o) subsidy fraud under the conditions set out in Section 264(2) sentence 2 and in
the case of Section 264(3) in conjunction with Section 263(5);
p) document forgery under the conditions set out in Section 267(3) sentence 2 and
in the case of Section 267(4), in each case in conjunction with Section 268(5) or
Section 269(3), and pursuant to Section 275(2) and Section 276(2);
q) bankruptcy under the conditions set out in Section 283a sentence 2;
r) criminal offences against competition pursuant to Section 298 and, under the
conditions set out in Section 300(2), pursuant to Section 299;
s) criminal offences constituting a public danger in the cases of Sections 306 to
306c, 307(1) to (3), Section 308(1) to (3), Section 309(1) to (4), Section 310(1),
Sections 313, 314, 315(3), Section 315b(3) and Sections 316a and 316c;
t) bribery and corruption pursuant to Sections 332 and 334;
2. from the Fiscal Code:
a) tax evasion under the conditions set out in Section 370(3) sentence 2 point 5;
b) commercial, violent and organised smuggling pursuant to Section 373;
c) receiving of items on which no tax has been paid, pursuant to Section 374(2);
3. from the Act on medicinal products:
criminal offences pursuant to Section 95(1) point 2a under the conditions set out in
Section 95(3) sentence 2 point 2(b);
4. from the Asylum Procedure Act:
8
a) incitement to make a fraudulent application for asylum pursuant to Section 84(3);
b) commercial and gang-led incitement to make a fraudulent application for asylum
pursuant to Section 84a;
5. from the Residence Act:
a) trafficking of foreigners pursuant to Section 96(2);
b) trafficking resulting in death and commercial and gang trafficking pursuant to
Section 97;
6. from the Foreign Trade Act:
criminal offences pursuant to Section 34(1) to (6);
7. from the Narcotics Act:
a) criminal offences pursuant to any provision referred to in Section 29(3) sentence
2 point 1 under the conditions set out therein;
b) criminal offences pursuant to Sections 29a, 30(1) points 1, 2 and 4 and Sections
30a and 30b;
8. from the Act on the control of weapons of war:
a) criminal offences pursuant to Section 19(1) to (3) and Section 20(1) and (2) and
Section 20a(1) to (3), in each case in conjunction with Section 21;
b) criminal offences pursuant to Section 22a(1) to (3);
9. from the Code of Crimes against International Law:
a) genocide pursuant to Section 6;
b) crimes against humanity pursuant to Section 7;
9
c) war crimes pursuant to Sections 8 to 12;
10. from the Weapons Act:
a) criminal offences pursuant to Section 51(1) to (3);
b) criminal offences pursuant to Section 52(1) points 1, 2(c) and (d) and (5) and (6);
(3) The order may be made only against the suspect or against persons about whom it
can be assumed, on the basis of particular facts, that they are receiving or forwarding
messages intended for the suspect or originating from him or that the suspect is using
their line.
(4) If there is actual evidence to support the assumption that only information from the
core area of private life would be obtained through a measure pursuant to paragraph 1,
the measure is impermissible. Information from the core area of private life that is ob-
tained through a measure pursuant to paragraph 1 must not be used. Records relating
to this must be deleted without delay. The fact that the information was obtained and
deleted shall be documented.
Section 100b
(1) Measures pursuant to Section 100a may only be ordered by the court at the request
of the public prosecutor. In exigent circumstances, the order may also be made by the
public prosecutor. If the order issued by the public prosecutor is not confirmed by the
court within three working days it shall cease to be effective and any personal data ob-
tained in the meantime may only be used as evidence in exigent circumstances. The
order shall be given a time limit of a maximum of two months. Extension by not more
than two months at a time is permissible, provided the conditions of the order remain,
taking into account the results obtained in the investigation. If the duration of the order
is extended by a total of six months, the superior court in the legal process shall take
the decision regarding further extensions, subject to Section 169.
(2) The order shall be issued in writing. The wording of the decision shall include:
10
1. where possible, the name and address of the person against whom the measure is
directed;
2. the telephone number or other identification of the line or terminal equipment that is
to be monitored, if this can be solely assigned to the terminal equipment that is to be
monitored;
3. the nature, extent and duration of the measure, indicating the end date.
(3) On the basis of this order, all persons providing or involved in the provision of tele-
communications services shall enable the court, the public prosecutor’s office and its
investigative officers working within the police force (Section 152 of the Constitution of
Courts Act) to carry out the measures pursuant to Section 100a and provide them with
the necessary information. Whether and to what extent precautionary measures are to
be taken in this respect shall be determined in accordance with the Telecommunica-
tions Act and the Telecommunications Monitoring Order. Section 95(2) shall apply ac-
cordingly.
(3) If the prerequisites for the order are no longer present, the measures taken on the
basis of the order shall be ended immediately. On termination of the measure, the court
that issued the order shall be informed of the course and the results of the measure.
(5) The Länder and the General Federal Attorney shall inform the Federal Office of Jus-
tice each calendar year on 30 June of the year following the year under review of the
measures ordered within their area of jurisdiction pursuant to Section 100a. The Fed-
eral Office of Justice shall issue an overview of the measures ordered nationally in the
year under review, and shall publish this on the Internet1.
(6) The following shall be stated in the reports referred to in paragraph 5:
1. the number of procedures in which measures pursuant to Section 100a(1) have
been ordered;
2. the number of monitoring orders pursuant to Section 100a(1) differentiated accord-
ing to
1 Official note: the Internet address for the Federal Office of Justice is: www.bundesjustizamt.de
11
a) initial orders and extended orders, and
b) fixed network, mobile network and internet telecommunications;
3. the underlying criminal offence justifying monitoring measures according to the sub-
division in Section 100a(2);
4. the number of monitored telecommunications according to the subdivision in point
2(b).“
8. Section 100c is amended as follows:
a) Paragraph 1 is amended as follows:
aa) The word “Without” is replaced by the words “Whether or not with”.
bb) In point 1, the words “as perpetrator or accessory” are added after the
words “a person”.
b) Paragraph 2 point 1 is amended as follows:
aa) In point a, the word "or" is replaced by the word "and".
bb) Point c is worded as follows:
“c) counterfeiting of money or stamps pursuant to Sections 146 and 151, in
each case in conjunction with Section 152, and pursuant to Section
152a(3) and Section 152b(1) to (4),”.
c) Paragraph 6 sentence 3 is worded as follows:
“Section 53b(4) shall apply accordingly.”
12
9. Section 100d is amended as follows:
a) In paragraph 2 sentence 2 point 1, the word "known" is replaced by the word
"possible".
b) Paragraph 5 is deleted.
c) Paragraph 6 becomes paragraph 5 and is amended as follows:
aa) In the part of the sentence preceding point 1 and in point 1, the word “in-
formation” is replaced by the word “data”.
bb) Point 2 is amended as follows:
aaa) In sentences 1 and 2, the word “information” is replaced in each case
by the word “data”.
bbb) In sentence 3, the word “information” is replaced in each case by the
word “data” and the word “destroyed” by the word “deleted”.
ccc) Sentences 4 and 5 are worded as follows:
“A record shall be made of the deletion. If the deletion is deferred
simply for possible preliminary judicial or judicial examination, the
data may be used for this purpose only; its use for other purposes
shall be blocked.”
cc) In point 3, the word “information” is replaced by the word “data” and the
words “this information” are replaced by the word “it”.
d) Paragraphs 7 to 10 are deleted.
10. Section 100e is amended as follows:
a) Paragraph 1 is worded as follows:
13
“(1) Section 100b(5) shall apply accordingly to the measures ordered pursuant to
Section 100c. Prior to publication on the Internet, the Federal Government shall
submit a report to the German Bundestag on the measures ordered pursuant to
Section 100c during the previous calendar year.”
b) In paragraph 2 sentence 1 point 8, the reference “(Section 100d(8))” is replaced
by the reference “(Section 101(4) to (7))”.
11. Sections 100f to 101 are worded as follows:
“Section 100f
(1) Whether or not with the knowledge of the person concerned, the non-publicly spo-
ken word may be monitored and recorded outside of dwellings if certain facts substan-
tiate the suspicion that a person has committed any criminal offence listed in Section
100a(2), and the investigation of the facts or determination of the whereabouts of the
suspect would otherwise be significantly more difficult or fruitless.
(2) The measure may be directed against one suspect person only. The measure may
only be ordered against other persons if it can be assumed, on the basis of certain
facts, that they are linked to an suspect person or such a link is established, and the
measure will make it possible to investigate the facts or determine the whereabouts of
an suspect person and this would otherwise be significantly more difficult or fruitless.
(3) The measure may also be carried out if third parties are unavoidably affected.
(4) Section 100b(1) and (4) sentence 1 and Section 100d(2) shall apply accordingly.
Section 100g
(1) If certain facts substantiate the suspicion that a person, as perpetrator or accessory,
1. has committed a criminal offence, which, even in an individual case, is of consider-
able significance, in particular one of the criminal offences listed in Section 100a(2),
14
or in cases where the attempt is punishable, attempted to commit a criminal offence
or prepared to commit an offence by committing another criminal offence; or
2. has committed a criminal offence using telecommunications;
traffic data (Section 96(1), Section 113a of the Telecommunications Act) may be col-
lected, with or without the knowledge of the person concerned, provided this is neces-
sary for the investigation of the facts or determination of the whereabouts of the sus-
pect. In the case of sentence 1 point 2, the measure is permitted only if the investiga-
tion of the facts or determination of the whereabouts of the suspect would otherwise be
fruitless and collection of the data is proportionate to the significance of the matter. Col-
lection of position data in real time is permissible only in the case of sentence 1 point 1.
(2) Section 100a(3) and Section 100b(1) to (4) sentence 1 shall apply accordingly. By
way of deviation from Section 100b(2) sentence 2 point 2, an adequate description of
the telecommunication in terms of location and time is sufficient in the case of a crimi-
nal offence of considerable importance, if the investigation of the facts would otherwise
be fruitless or significantly more difficult.
(3) if collection of the traffic data from the telecommunications service provider is un-
successful, it shall be governed, on completion of the communication, by the general
provisions.
(4) In accordance with Section 100b(5), an overview of the measures pursuant to para-
graph 1 shall be issued annually, indicating:
1. the number of procedures in which measures pursuant to paragraph 1 have been
carried out;
2. the number of orders for measures pursuant to paragraph 1, divided into initial and
extended orders;
3. the underlying criminal offence justifying monitoring measures, differentiated in ac-
cordance with paragraph 1 sentence 1 points 1 and 2;
4. the number of past months for which the traffic data pursuant to paragraph 1 has
been requested, calculated from the date of the order;
15
5. the number of measures for which no results have been obtained because all or
some of the requested data were not available.
Section 100h
(1) Whether or not with the knowledge of the person concerned, outside of dwellings:
1. photographs may be taken;
2. other special technical means intended for the purposes of surveillance may be
used;
if the investigation of the facts or determination of the whereabouts of an suspect would
otherwise be more difficult or have less chance of success. A measure pursuant to
sentence 1 point 2 is permissible only if the subject of the investigation is a criminal of-
fence of considerable importance.
(2) The measures may be directed against one suspect person only. Against other per-
sons
1. measures pursuant to paragraph 1 point 1 are permissible only if the investigation of
the facts or determination of the whereabouts of an suspect person would otherwise
be significantly more difficult or have a considerably reduced chance of success;
2. measures pursuant to paragraph 1 point 2 are permissible only if it can be assumed,
on the basis of certain facts, that they are linked to an suspect person or if such a
link is established, and that the measure will make it possible to investigate the facts
or determine the whereabouts of an suspect person, and this would otherwise be
fruitless or significantly more difficult.
(3) The measures may also be carried out if third parties are also unavoidably affected.
16
Section 100i
(1) If certain facts substantiate the suspicion that a person has committed a criminal of-
fence, which, even as an isolated case, is of considerable importance, in particular one
of the criminal offences listed in Section 100a(2), or in cases where the attempt is pun-
ishable, attempted to commit a criminal offence or prepared to commit an offence by
committing another criminal offence, technical means may be used
1. to obtain the device number of an item of mobile terminal equipment and the num-
ber of the card used therein, and
2. to ascertain the location of an item of mobile terminal equipment
provided this is necessary for the investigation of the facts or determination of the
whereabouts of the suspect.
(2) Personal data relating to third parties may only be collected in connection with such
measures if, for technical reasons, this cannot be avoided in achieving the purpose un-
der paragraph 1. It must not be used for purposes beyond the data tracking for deter-
mining the required device and card numbers, and shall be deleted immediately on
conclusion of the measure.
(3) Section 100a(3) and Section 100b(1) sentences 1 to 3, (2) sentence 1 and (4) sen-
tence 1 shall apply accordingly. The order shall be given a time limit of a maximum of
six months. An extension by not more than six additional months at a time is permissi-
ble, provided that the pre-conditions referred to in paragraph 1 remain.
Section 101
(1) For measures pursuant to Sections 98a, 99, 100a, 100c to 100i, 110a and 163d to
163f, the following regulations shall apply, unless otherwise provided.
(2) Decisions and other documents concerning measures pursuant to Sections 100c,
100f, 100h(1) point 2 and Section 110a shall be retained at the public prosecutor’s of-
17
fice. They shall only be put on file once the pre-conditions for notification in accordance
with paragraph 5 are met.
(3) Personal data obtained through measures pursuant to paragraph 1 shall be marked
accordingly. Following transmission to another agency, the marking shall be retained
by this agency.
(4) The following shall be notified of the measures referred to in paragraph 1 in the
case of
1. Section 98a, the persons concerned, around whom further investigations have been
conducted following evaluation of the data;
2. Section 99, the sender and addressee of the postal item;
3. Section 100a, the persons involved in the monitored telecommunication;
4. Section 100c
a) the suspect against whom the measure is directed;
b) other monitored persons;
c) persons who occupied or lived in the monitored dwelling at the time the measure
was carried out;
5. Section 100f, the target person as well as any other persons that are also signifi-
cantly affected;
6. Section 100g, the persons involved in the telecommunication in question;
7. Section 100h(1), the target person as well as any other persons that are also signifi-
cantly affected;
8. Section 100i, the target person;
9. Section 110a
18
a) the target person;
b) persons who are also significantly affected;
c) the persons whose non-publicly accessible dwelling the undercover investigator
has entered;
10. Section 163d, the persons concerned, around whom further investigations have
been conducted following evaluation of the data;
11. Section 163e, the target person and the person whose personal data have been
reported;
12. Section 163f, the target person as well as any other persons that are also signifi-
cantly affected.
In so doing, reference should be made to the possibility of ex post facto legal protection
pursuant to paragraph 9 and the period provided therefor. No notification shall take
place if the predominant protective interests of the person concerned oppose this. In
addition, notification of a person referred to in sentence 1 points 2, 3 and 6, against
whom the measure was not directed, may be dispensed with if this person was affected
to an insignificant extent only and it can be assumed that he or she would have no in-
terest in the notification. An investigation to ascertain the identity of a person referred to
in sentence 1 shall only be carried out where necessary in view of the degree of inter-
ference of this measure in the life of this person, the expense of determining his or her
identity and the annoyance this will cause to this person or to other people.
(5) The notification shall be given as soon as it is possible to do so without jeopardising
the purpose of the investigation, endangering life or limb or jeopardising the personal
liberty of a person or significant assets, and in the case of Section 110a, also the pos-
sibility of the continued use of the undercover investigator. If notification pursuant to
sentence 1 is deferred, a record shall be made of the reasons for this.
(6) If the notification that was deferred pursuant to paragraph 5 is not carried out within
twelve months after completion of the measure, further deferment shall require the
consent of the court. The court shall determine the length of the additional deferment;
19
extension of the length of the deferment is permissible. If several measures have been
carried out within a narrow timeframe, the period referred to in sentence 1 shall begin
when the last measure ends. In the case of Section 100c, the length of the period re-
ferred to in sentence 1 shall be six months and the length of any deferments pursuant
to sentence 2 shall be fixed at not more than six months at a time.
(7) If the notification has been deferred for a total of five years and it is established that
the pre-conditions for notification will almost certainly not exist in future either, notifica-
tion may finally be abandoned with the consent of the court.
(8) Judicial decisions pursuant to paragraphs 6 and 7 shall be taken by the court re-
sponsible for ordering the measure.
(9) On conclusion of the measure and for up to two weeks following their notification,
the persons referred to in paragraph 4 sentence 1 may also make an application for an
examination of the lawfulness of the measure as well as the nature and method of its
implementation. The court responsible for ordering the measure shall make a decision
on the application. An immediate appeal against the decision is permissible. If public
charges have been brought and the defendant has been notified, the court dealing with
the matter shall make a decision on the application in the final decision that concludes
the proceedings.
(10) If the personal data obtained through the measure are no longer required for
criminal prosecution or for any judicial examination of the measure, they shall be de-
leted without delay. A record shall be made of the deletion. If deletion is deferred sim-
ply for a possible judicial examination of the measure, the data may be used for this
purpose only, without the consent of the persons concerned; access to the data must
be blocked accordingly.
12. The following subsection 3 is inserted into Section 110:
“(3) The perusal of electronic storage media may be extended to physically separate
storage media to which the person concerned is entitled to grant access. Data which
may be of significance to the investigation may be stored if there is concern that they
may be lost before the data carrier is secured. They shall be deleted as soon as they
are no longer required for the criminal prosecution.”
20
13. Sections 110d and 110e are deleted.
14. Section 161 is amended as follows:
a) The following paragraph 2 is inserted after paragraph 1:
“(2) If a measure under this Act is permissible only on suspicion of certain crimi-
nal offences, the personal data obtained on the basis of a corresponding meas-
ure under other Acts may be used, without the consent of the persons affected by
the measure, for the purpose of providing evidence in criminal proceedings only
to clear up those criminal offences for which such a measure could have been
ordered under this Act. Section 100d(5) point 3 remains unaffected.”
b) The previous paragraph 2 becomes paragraph 3 and the word “information” is
replaced by the word “data”.
15. Section 162 is worded as follows:
“Section 162
(1) If the public prosecutor’s office considers a judicial investigation to be necessary, it
shall make its applications to the local court in the district in which the public prosecu-
tor’s office or branch office making the application is based. For judicial interrogations
and inspections, the local court in the district in which these investigations are to be
carried out is the competent court if the public prosecutor’s office has made such an
application there in order to expedite the proceedings or to avoid burdening the per-
sons concerned.
(2) The court shall examine whether the action applied for is permitted under law under
the circumstances of the case.”
16. Section 163d is amended as follows:
21
a) In paragraph 1 sentence 1 point 2, the words “sentence 1 points 3 and 4” are re-
placed by the words “paragraph 2 points 6 to 8 and 10.
b) Paragraph 4 sentences 4 and 5 and paragraph 5 are deleted.
17. Section 163e is amended as follows:
a) In paragraph 3, the word "information" is replaced by the word "data".
b) Paragraph 4 is amended as follows:
aa) In sentence 1 the words "the judge" are replaced by the words "the court".
bb) In sentence 3, the word "judicial" is replaced by the word "court".
cc) In sentence 4, the word "judge" is replaced by the word "court".
dd) Sentence 6 is worded as follows:
“Extension by not more than three months at a time is permissible, provided
the pre-conditions of the order remain.”
18. Section 163f is amended as follows:
a) Paragraph 3 is worded as follows:
“(3) The measure may only be ordered by the court or, in exigent circumstances,
also by the public prosecutor’s office and its investigative officers (Section 152 of
the Constitution of Courts Act). The order issued by the public prosecutor’s office
or its investigative officers shall cease to be effective if it is not confirmed by the
court within three working days. Section 100b(1) sentence 3 clause 2, sentences
4 and 5 and (2) sentence 1 shall apply accordingly.
b) Paragraph 4 is deleted.
22
19. Section 304 is amended as follows:
a) Paragraph 1 sentence 2 point 1 is worded as follows:
“1. concerning arrest, provisional committal, committal for observation, seizure,
search or the measures referred to in Section 101(1);”
b) Paragraph 5 is worded as follows:
“(5) An appeal against the directions of the investigating judge at the Federal
Court of Justice and the Higher Regional Court (Section 169(1)) shall be admis-
sible only if it concerns arrest, provisional committal, seizure, search or the
measures referred to in Section 101(1).”
20. Section 477 is amended as follows:
a) Paragraph 2 is worded as follows:
“(2) The passing on of information from files and the viewing of files shall be re-
fused if the purpose of the criminal proceedings or special regulations on use un-
der Federal or State law oppose this. If a measure under this Act is permissible
only on suspicion of certain criminal offences, the personal data obtained on the
basis of such a measure may be used, without the consent of the persons af-
fected by the measure, for the purpose of providing evidence in other criminal
proceedings only to clear up those criminal offences for which such a measure
could have been ordered under this Act. In addition, personal data obtained
through a measure of the type referred to in sentence 2 may be used without the
consent of the persons affected by the measure only
1. to avert a significant threat to public safety;
2. for the purposes for which transmission pursuant to Section 18 of the Federal
Constitution Protection Act is permissible; and
3. in accordance with Section 476.
23
Section 100d(5) shall remain unaffected.”
b) In paragraph 5 sentence 1, the word "information" is replaced by the word "data".
Article 2
Amendment of the Telecommunications Act
The Telecommunication Act in the version published on 22 June 2004 (Federal Law Gazette
I p. 1190), most recently amended by ..., is amended as follows:
1. Section 97 is amended as follows:
a) Sentences 2 to 4 of Section 97(3) are replaced by the following sentences:
“These data may be stored for up to six months after the bill is sent. Data that are
not required for billing purposes shall be deleted immediately, unless they are re-
quired to be stored in accordance with Section 113a. If, prior to expiry of the time
limit referred to in sentence 2, the subscriber has raised objections to the amount
of the call charges quoted in the bill, the data may be stored until such time as
the objections have been finally settled.”
b) Paragraph 4 is deleted.
c) Paragraphs 5 and 6 are renumbered 4 and 5.
2. Section 99 is amended as follows:
a) Paragraph 1 is worded as follows:
“(1) The subscriber shall be informed about stored data relating to calls for which
he is liable to pay only if he has made a request, in text form, for an itemised bill
prior to the relevant billing period. On request, he may also be informed of the
data relating to flat-rate calls, in which connection he shall decide whether to be
informed of the numbers he has called in an unabbreviated form or an abbrevi-
24
ated form with the last three digits deleted. In respect of residential lines, the dis-
closure of such information is permitted only if the subscriber has declared, in text
form, that he has informed all co-users of the line within the household, and will
inform all future co-users without delay, that the traffic data relating to the bill will
be disclosed to him. In the case of lines in businesses and public authorities, the
disclosure of such information is permitted only if the subscriber has declared, in
text form, that the employees have been informed, and that new employees will
be informed without delay, and that the works council or staff representation has
been involved in accordance with the statutory requirements, or that such in-
volvement is not necessary. Where religious societies governed by public law
have issued their own employee representation regulation for their domain, sen-
tence 4 shall apply, with the proviso that the respective employee representation
acts in place of the works council or staff representation. In addition, the sub-
scriber may be informed about the stored data if he has raised objections to the
amount of the call charges. If a subscriber is liable to pay part or all of the
charges for incoming calls to his line, the numbers of the lines from which the
calls originate may be provided on his itemised bill only with the deletion of the
last three digits. Sentences 2 and 7 shall not apply to service providers who, as
providers for closed user groups, offer their services to their subscribers only.”
b) In paragraph 3 sentence 2, the words “sentence 2 or 3” are replaced by the
words “sentence 3 or 4”.
3. Section 110 is amended as follows:
a) The heading is worded as follows:
“Section 110 Implementation of monitoring measures, issuing of information”
b) Paragraph 2 point 1(a) is worded as follows:
“a) the essential technical requirements and the key organisational elements for
the implementation of monitoring measures and the issuing of information, in-
cluding the implementation of monitoring measures and the issuing of informa-
tion by a person acting on behalf of the person under obligation;”
25
c) Paragraph 8 is deleted.
4. Section 111 is amended as follows:
a) Paragraph 1 is worded as follows:
“(1) Anyone who provides or assists in providing telecommunications services on
a commercial basis and in so doing allocates telephone numbers or other line
identities or provides telecommunications connections for telephone numbers or
other line identities allocated by other parties, shall, for the information proce-
dures pursuant to Sections 112 and 113, collect, prior to activation, and store
without delay
1. the telephone numbers and other line identities;,
2. the name and address of the line holder;
3. in the case of natural persons, their date of birth;
4. in the case of fixed lines, also the address for the line;
5. in cases where a mobile terminal device is provided in addition to a mobile
connection, the number of this device; and
6. the start date of the contract
even if these data are not required for operational purposes. Where known, the
date of termination of the contract shall also be stored. Sentence 1 shall also ap-
ply if the data are not entered in directories of subscribers (Section 104). The ob-
ligation for storage without delay in accordance with sentence 1 shall apply ac-
cordingly with regard to the data pursuant to sentence 1 points 1 and 2 to those
who provide, on a commercial basis, a publicly available electronic mail service
and in so doing collect data pursuant to sentence 1 points 1 and 2, whereby the
identities of the electronic mailboxes shall replace the data pursuant to sentence
1 point 1, and the holder of the electronic mailbox shall replace the holder pursu-
ant to sentence 1 point 2. If a person under obligation pursuant to sentence 1 or
26
sentence 3 becomes aware of any changes, he shall correct the data without de-
lay. In this connection the person under obligation pursuant to sentence 1 shall
collect and store data that has not yet been collected, provided it is possible for
him to collect the data without extraordinary effort. For the information procedure
pursuant to Section 113, the manner in which the data are to be stored is left
open.”
b) In paragraph 2 sentence 1 the words “paragraph 1 sentence 1 [operates in con-
junction with] a sales partner” are replaced by the words “paragraph 1 sentence 1
or sentence 3 [operates in conjunction with] a sales partner” and the words “col-
lect [data according to] paragraph 1 sentence 1” are replaced by the words “col-
lect [data according to] paragraph 1 sentences 1 and 3 under the conditions re-
ferred to therein”.
c) In paragraph 3 the words “paragraph 1 sentence 1” are replaced by the words
“paragraph 1 sentence 1 or sentence 3” and the words “in paragraph 1 sentence
3” are replaced by the words “in paragraph 1 sentence 4”.
d) The following paragraphs 4 and 5 are added:
“(4) The data shall be deleted at the end of the calendar year following termina-
tion of the contractual relationship.
(5) No remuneration shall be paid for the collection and storage of data.”
5. Section 112 is amended as follows:
a) Paragraph 1 is amended as follows:
aa) In sentence 1, the words "sentences 1 and 3" are replaced by the words
"sentences 1, 3 and 4".
bb) Sentence 2 is worded as follows:
“Section 111(1) sentence 4 and (4) shall apply accordingly to the correction
and deletion of the data stored in customer files.
27
b) Paragraph 3 sentence 1 point 3 is worded as follows:
“3. in respect of retrievals using incomplete search data and searches made us-
ing a similarity function
a) the minimum requirements in respect of the extent of the data to be entered
to identify, as precisely as possible, the person to whom the search relates;
b) the characters that may be used in the search;
c) requirements in respect of the use of linguistic methods ensuring that dif-
ferent ways of writing the name of a person, street or place as well as de-
viations arising from the mixing up, leaving out or adding of parts of the
names are included in the search and the search result;
d) the permitted number of response data sets to be transmitted to the Fed-
eral Network Agency.”
c) Paragraph 4 sentence 4 is worded as follows:
“For each retrieval, the regulatory authority shall record, for the purpose of data
protection control by the relevant competent body, the time, the data used in the
process of retrieval, the data retrieved, an item of data that clearly identifies the
person retrieving the data, as well as the requesting body, the reference number
of the requesting body and an item of data that clearly identifies the requesting
person.”
6. The following Sections 113a and 113b are inserted after Section 113:
“Section 113a
Obligation to store data
(1) Anyone providing publicly available telecommunications services to end users is
obliged to store traffic data generated or processed by him during the use of his ser-
vice, in accordance with paragraphs 2 to 5, for six months in Germany or in another
28
Member State of the European Union. Anyone providing publicly available telecommu-
nications services to end users without generating or processing traffic data them-
selves shall ensure that the data pursuant to sentence 1 is stored and shall inform the
Federal Network Agency on request of who is storing these data.
(2) Providers of publicly available telephone services shall store:
1. the telephone number or other ID of the calling and called line and, in the case of
redirected or forwarded calls, each additional line involved;
2. the date and time of the start and end of the call, indicating the relevant time zone;
3. where various different services can be used within the context of the telephone
service, details of the service used;
4. in the case of mobile telephone services, also:
a) the international mobile subscriber identity of the calling and the called line;
b) the international identity of the calling and called terminal device;
c) designation of the cells used by the calling and the called line at the start of the
call;
d) in the case of pre-paid anonymous services, also the first activation of the ser-
vice, by date, time and cell designation;
5. in the case of internet telephone services, also the internet protocol address of the
calling and called line.
Sentence 1 shall apply accordingly in connection with the transmission of a short, mul-
timedia or similar message. In this regard, the time the message is sent and received
shall be stored in lieu of the details pursuant to sentence 1 point 2.
(3) Providers of electronic mail services shall store:
29
1. in connection with the sending of a message, the ID of the electronic mailbox and
the internet protocol address of the sender as well as the ID of the electronic mail-
box of each recipient of the message;
2. in connection with the arrival of a message in an electronic mailbox, the ID of the
electronic mailbox of the sender and the recipient of the message as well as the
internet protocol address of the sending telecommunications equipment;
3. when the electronic mailbox is accessed, the identity of the mailbox and the re-
quester’s internet protocol address;
4. the times of the uses of the services referred to in points 1 to 3 by date and time, in-
dicating the relevant time zone.
(4) Internet service providers shall store:
1. the internet protocol address allocated to the subscriber for internet use;
2. a unique ID of the line over which the internet use occurs;
3. the date and time of the start and end of the internet use under the allocated internet
protocol address, indicating the relevant time zone.
(5) Where providers of telephone services also store or record the traffic data referred
to in this regulation for the purposes referred to in Section 96(2) when the call is unan-
swered or is unsuccessful due to network management intervention, the traffic data
shall also be stored in accordance with this regulation.
(6) Anyone who provides telecommunications services and in so doing changes the de-
tails that are to be stored in accordance with this regulation is obliged to store the origi-
nal and the new details as well as the date and time that these details are altered, indi-
cating the relevant time zone.
(7) Anyone operating a public mobile network is obliged, for the cell designations
stored in accordance with this regulation, also to keep data establishing the geographic
position of the radio antennae serving the relevant cell and their main radiation direc-
tions.
30
(8) On the basis of this regulation, the content of the communication and any data con-
cerning the websites called up must not be stored.
(9) The data pursuant to paragraphs 1 to 7 shall be stored so as to enable information
requests from the authorised agencies to be answered immediately.
(10) The party under obligation pursuant to this regulation shall take the necessary
care within the area of the telecommunications with regard to the quality and protection
of the stored traffic data. He shall ensure, by means of technical and organisational
measures, that the stored data can only be accessed by specially authorised persons.
(11) The person under obligation in accordance with this regulation shall delete the
data stored purely on the basis of this regulation within a month of the end of the period
referred to in paragraph 1, or ensure that they are deleted.
Section 113b
Use of the data stored pursuant to Section 113a
The party under obligation pursuant to Section 113a may transmit the data stored
purely on the basis of the storage obligation pursuant to Section 113a to the competent
bodies on request
1. for the prosecution of criminal offences;
2. to avert significant threats to public safety; or
3. for the fulfilment of the statutory duties of the Federal and Land offices for the pro-
tection of the Constitution, the Federal Intelligence Service and the Federal Armed
Forces Counterintelligence Office
provided this is provided for in the relevant statutory provisions with reference to Sec-
tion 113a and the transmission is ordered on a case-by-case basis. He must not use
the data for other purposes. Section 113(1) sentence 4 shall apply accordingly.”
31
7. Section 115(2) is amended as follows:
a) Sentence 1 is amended as follows:
aa) In point 1, the reference “5 or 6” is replaced by the reference “5 or para-
graph 6, Section 113a”.
bb) In point 3 the words “Section 111(1) sentences 1 to 4 and (2)” are replaced
by the words “Section 111(1), (2) and (4).
b) In sentence 2 the words “Section 111(1) sentences 1 to 4 and (2)” are replaced
by the words “Section 111(1), (2) and (4).
8. Section 149 is amended as follows:
a) Paragraph 1 is amended as follows:
aa) Point 29 is worded as follows:
“29. in contravention of Section 111(1) sentence 1, also in conjunction with
sentence 2 or 3, or Section 111(1) sentence 4, fails to collect the data
referred to therein or to collect them correctly, fully or in a timely man-
ner, fails to store these data or to store them correctly, fully or in a
timely manner or fails to correct these data or to correct them correctly,
fully or in a timely manner;
bb) In point 30 the words “fails to transmit [data] or to transmit them in a timely
manner” are replaced by the words “fails to transmit [data] or to transmit
them correctly, fully or in a timely manner;”.
cc) The following point 30a is inserted after point 30:
“30a in contravention of Section 111(4), fails to delete data or to delete
them in a timely manner;”.
dd) In point 34, the word “or” is replaced by a comma.
32
ee) In point 35, a comma is placed after the words “sentence 4” and the words
“also in conjunction with Section 113b sentence 2” are added and the full
stop at the end of the sentence is replaced by a comma.
ff) The following points 36 to 39 are added after point 35:
“36. in contravention of Section 113a(1) sentence 1 or (6), fails to store data
or to store them correctly or for the prescribed length of time;
37. in contravention of Section 113a(1) sentence 2, fails to ensure that the
data referred to therein are stored or fails to provide notification of who
is storing these data;
38. in contravention of Section 113a(10) sentence 2, fails to ensure that
access to the stored data is possible only by specially authorised per-
sons; or
39. in contravention of Section 113a(11), fails to delete data or fails to de-
lete them in a timely manner or fails to ensure that the data are deleted
in a timely manner.”.
b) In paragraph 2 sentence 1, the reference “27 and 31” is replaced by the refer-
ence “27, 31, 36 and 37” and the reference “29 and 34” is replaced by the refer-
ence “29, 30a, 34, 38 and 39”.
9. In Section 150, the following paragraph 12b is added after paragraph 12a:
“(12b) Section 149 shall be applied for the first time in respect of violations of the stor-
age obligation pursuant to Section 113a(1) sentence 1 or (6) or of the obligation to en-
sure storage pursuant to Section 113a(1) sentence 2 from 1 January 2009 onwards.
Article 3
Amendment of the Fiscal Code
33
The Fiscal Code in the version published on 1 October 2002 (Federal Law Gazette I p. 3866,
2003 I p. 61), most recently amended by ..., is amended as follows:
1. In the table of contents, the reference to Section 370a is worded as follows:
“Section 370a (rescinded)"
2. Section 370(3) sentence 2 is amended as follows:
a) Point 1 is worded as follows:
“1. grossly underpays taxes or obtains unjustified tax advantages;”.
b) In point 3, the word "or" is deleted.
c) In point 4, the full stop at the end of the sentence is replaced by a comma and the
word “or” is added:
d) The following point 5 is added:
“5. as a member of a gang created for the persistent perpetration of acts pursuant
to paragraph 1, underpays turnover tax or excise duty or obtains unjustified
turnover tax or excise duty advantages.”
3. Section 370a is deleted.
4. Section 373 is amended as follows:
a) Paragraph 1 is worded as follows:
“(1) Anyone who, on a commercial basis, evades import or export duties or com-
mits a customs violation through infringements of monopoly regulations shall be
punished by a custodial sentence of between six months and ten years. In less
34
serious cases, the punishment shall be a custodial sentence of up to five years or
a fine.”
b) Paragraph 2 point 3, is worded as follows:
“3. commits such an act as a member of a gang created for the persistent perpe-
tration of the evasion of import or export duty or customs violations.”
c) The following paragraphs 3 and 4 are added:
“(3) Attempts to perform such acts are liable to prosecution.
(4) Section 370(6) sentence 1 and (7) shall apply accordingly.”
5. Section 374 is amended as follows:
a) In paragraph 1, the words “pursuant to Section 370(1) and (2), or if operating on
a commercial basis, pursuant to Section 373” are replaced by the words “by a
custodial sentence of up to five years or a fine”.
b) The following paragraphs 2 and 3 are inserted after paragraph 1:
“(2) If the perpetrator is operating on a commercial basis or as a member of a
gang created for the persistent perpetration of criminal acts pursuant to para-
graph 1, the punishment shall be a custodial sentence of between six months and
ten years. In less serious cases, the punishment shall be a custodial sentence of
up to five years or a fine.
(3) Attempts to perform such acts are liable to prosecution.”
c) The previous paragraph 2 becomes paragraph 4 and is worded as follows:
“(4) Section 370(6) sentence 1 and (7) shall apply accordingly.”
35
Article 4
Amendment to the Criminal Code
Section 261(1) of the Criminal Code, in the version published on 13 November 1998 (Federal
Law Gazette I p. 3322), most recently amended by … is amended as follows:
1. Sentence 2 is amended as follows:
a) Point 3 is amended as follows:
aa) The words “, if operating commercially,” are deleted.
bb) The reference “(2)” is inserted after the reference “Section 374”.
b) In point 4(b), the word “and” is replaced by a comma, and after the words “Asy-
lum Procedure Act” the words “and pursuant to Section 370 of the Fiscal Code”
are added.
2. In sentence 3, the reference “Section 370a” is replaced by the reference “Section 370”.
Article 5
Amendment to the Article 10 Act
In Section 17(1) of the Article 10 Act of 26 June 2001 (Federal Law Gazette I p. 1254, 2298),
most recently amended by ..., the word “commercially” is deleted.
Article 6
Amendment of the Associations Act
In Section 10(2) sentence 4 of the Associations Act of 5 August 1964 (Federal Law Gazette I
p. 593), most recently amended by …, the reference “Sections 99, 100 and 101” is replaced
by the reference “Sections 99, 100 and 101(3) to (10)”.
36
Article 7
Amendment of the Act on the Federal Office of Criminal Investigation
In Section 16(3) sentence 3 of the Act on the Federal Office of Criminal Investigation of 7
July 1997 (Federal Law Gazette I p. 1650), most recently amended by …, the reference
“Section 161(2)” is deleted.
Article 8
Amendment of the Constitution of Courts Act
In Section 120(4) sentence 2 of the Constitution of Courts Act in the version published on 9
May 1975 (Federal Law Gazette I p. 1077), most recently amended by ……, the words “and
Section 100d(9) sentence 4” are deleted.
Article 9
Amendment of the Act establishing the Code of Criminal Procedure
The following Section 12 is added after Section 11 of the Act establishing the Code of Crimi-
nal Procedure of 1 February 1877 (Imperial Law Gazette p. 346), most recently amended by
…:
"Section 12
Transitional regulations relating to the
Act re-regulating telecommunications monitoring
and other covert investigative measures
and transposing Directive 2006/24/EC
(1) Section 100b(5) and (6) and Section 100g(4) of the Code of Criminal Procedure shall be
applied for the first time to reports for the year 2008. As regards reports pursuant to Section
100e of the Code of Criminal Procedure, Section 100b(5) of the Code of Criminal Procedure
shall be applied already to the 2007 reports.
(2) Section 110(8) of the Telecommunications Act and Section 1 point 8, Section 25 and the
Annex to the Telecommunications Monitoring Order shall be applied for the last time to re-
ports for the year 2007.
37
Article 10
Amendment of the International Criminal Court Act
Section 59(1) of the International Criminal Court Act of 21 June 2002 (Federal Law Gazette I
p. 2002, 2144), most recently amended by ..., is amended as follows:
1. In point 2, the reference “Section 100a(1) sentence 1” is replaced by the reference
“Section 100a(2)”.
2. In point 3:
a) the reference “Section 101(1)” is replaced by the reference “Section 101(4) to
(7)”,
b) the words “use of the information obtained” are replaced by the words “passing
on of the personal data obtained, for use as evidence”,
c) the reference “Section 100b(5)” is replaced by the reference “Section 477(2) sen-
tence 2”,
d) the word “destruction” is replaced by the word “deletion”, and
e) the reference “Section 100b(6)” is replaced by the reference “Section 101(10)”.
Article 11
Amendment of the Act on securities trading
In Section 16(1) sentence 3 of the Act on securities trading of 9 September 1998 (Federal
Law Gazette I p. 2708), most recently amended by …, the reference “pursuant to Section
101” is replaced by the words “in accordance with Section 101(4) and (5)”.
38
Article 12
Amendment of the Act on the use of direct force and the exercising of special powers
by soldiers of the Federal Armed Forces and allied forces as well as non-military secu-
rity guards
In Section 7(2) sentence 2 of the Act on the use of direct force and the exercising of special
powers by the soldiers of the Federal Armed Forces and allied forces as well as non-military
security guards of 12 August 1965 (Federal Law Gazette I p. 796), most recently amended
by …, the reference “Sections 96, 97 and 110“ is replaced by the reference “Sections 96, 97
and 110(1) and (2)“.
Article 13
Amendment of the Telecommunications Monitoring Order 1
The Telecommunications Monitoring Order, in the version published on 3 November 2005
(Federal Law Gazette I p. 3136, 3149), most recently amended by … is amended as follows:
1. Section 1 is amended as follows:
a) In point 8, the full stop at the end is replaced by the word “and”.
b) The following point 9 is added:
“9. the requirements pertaining to the transmission procedure and the data format
for requests for information relating to traffic data and the associated results.”
c) Point 8 is deleted and the previous point 9 becomes point 8.
2. Section 3(2) is amended as follows:
a) In sentence 1 point 5, the reference “1 000” is replaced by the reference “10 000”.
1The obligations arising from Directive 98/34/EC of the European Parliament and of the Council of 22 June
1998 laying down a procedure for the provision of information in the field of technical standards and regulations
and of rules on Information Society services (OJ L 204 p. 37), as amended by Directive 98/48/EC of the Euro-
pean Parliament and of the Council of 20 July 1998 (OJ L 217 p. 18), have been met.
39
b) The following sentence is inserted after sentence 2:
“Sentence 1 points 1 and 2 shall not apply with regard to precautions for meeting
the obligation arising from Section 110(1) sentence 1 point 1a of the Telecommu-
nications Act.”
3. In Section 4(2) sentence 3 the words "Sections 21 and 22 are" are replaced by the
words "Section 22 is".
4. Section 7(1) sentence 1 point 7 is amended as follows:
a) The words “from mobile networks” are replaced by the words “, the use of which
is not location-dependent,”.
b) The words “mobile device” is replaced in each case by the words “terminal de-
vice”.
5. In Section 11 sentence 1, the reference “Section 12(2) sentence 1,” is added after the
reference “Section 10 sentences 1 and 3,”.
6. In Section 12(2) sentence 1, the words “in advance by fax or using secure electronic
means” are replaced by the words “using secure electronic means or in advance by
fax”.
7. In Section 19(3) sentence 2 clause 2, the reference “Section 21” is deleted.
8. Section 21 is deleted.
9. In the heading of Section 22, the word “Other” is deleted.
40
10. Section 25 and the annex to Section 25 are rescinded.
11. In Section 27(8) sentence 1, the words “Sections 15 and 21(4) point 1 [apply] accord-
ingly” are replaced by the words “Section 15 [apply] accordingly, with the proviso, by
way of deviation from Section 12(1) sentences 1 to 3 and (3) sentence 1, that the party
under obligation can be informed at any time within his normal working hours of the ex-
istence of an order and the urgency of its implementation, and can receive an order
and enquiries regarding individual monitoring measures that are not yet concluded”.
Article 14
Amendment of the Act amending the Code of Criminal Procedure
Article 2 and Article 4 sentence 2 of the Act amending the Code of Criminal Procedure of 20
December 2001 (Federal Law Gazette I p. 3879), most recently amended by …, are re-
scinded.
Article 15
Citation requirement
Articles 1 and 2 of this Act restrict the secrecy of letters, post and telecommunications (Arti-
cle 10 of the Basic Law).
Article 16
Entry into force, abrogation
(1) Subject to paragraphs 2 and 3, this Act shall enter into force on 1 January 2008.
(2) Article 2 point 3(c) and Article 13 point 1(c) and point 10 shall enter into force on 1 Janu-
ary 2009.
(3) Article 14 shall enter into force on the day following promulgation.
41
(4) Section 12 of the Act establishing the Code of Criminal Procedure shall cease to be valid
after 31 December 2009.
42
Explanatory Statement
A.
General
I.
The aim of the draft is to harmonise the law relating to covert, criminal procedure-related in-
vestigative measures and to give it constitutional form in line with the stipulations of the Fed-
eral Constitutional Court. In this connection, those affected by such measures are given
greater legal protection, existing uncertainties and loopholes in the application of the law are
rectified and the law on covert investigative measures is generally made more transparent
and thus more practicable.
In the Act implementing the judgment of the Federal Constitutional Court of 3 March 2004
(acoustic surveillance of private premises) of 24 June 2005 (Federal Law Gazette I p. 1841),
the legislator supplemented and extended the constitutional basis for the surveillance of pri-
vate premises in line with the constitutional stipulations, in the light of Article 13 of the Basic
Law. The stipulations of the Federal Constitutional Court (BVerfGE [Collected Decisions of
the Federal Constitutional Court] 109, 179 et seq.) that led to the aforementioned revision of
the regulations cannot – contrary to widespread opinion in the literature – be transferred
wholesale of other covert investigative measures (on the relationship between Article 10 and
Article 13 of the Basic Law, see Federal Constitutional Court, 1 BvR 668/04 of 27 July 2005,
paragraph 162 et seq., Neue Juristische Wochenschrift 2005, 2603, 2611; on the contrary
opinion see Hirsch, in: Roggan [Ed.] Lauschen im Rechtsstaat. Zu den Konsequenzen des
Urteils des Bundesverfassungsgerichts zum großen Lauschangriff [Eavesdropping and the
rule of law. On the consequences of the judgment of the Federal Constitutional Court for
eavesdropping], 2004, p. 87 et seq.; Leutheusser-Schnarrenberger, Datenschutz und Daten-
sicherheit 2005, 323, 326 et seq.; ibid., in: Roggan, loc. cit., p. 99 et seq.; Bergemann, in:
Roggan, loc. cit., p. 69 et seq.; Baldus, in: Schaar [Ed.], Folgerungen aus dem Urteil des
Bundesverfassungsgerichts zur akustischen Wohnraumüberwachung: Staatliche Eingriffsbe-
fugnisse auf dem Prüfstand? [Conclusions from the judgment of the Federal Constitutional
Court on the acoustic surveillance of private premises: the State's powers of intervention put
to the test?], 2005, p. 9 et seq.; Gusy, in: Schaar, loc. cit., p. 35 et seq., 48 et seq.; Kutscha,
Neue Juristische Wochenschrift 2005, 20, 22). The particular importance of the inviolability of
the dwelling (Article 13(1) of the Basic Law), and the quite particular risk posed by this
measure to the sacrosanct core area of private lifestyles, mean that the acoustic surveillance
of private premises occupies an exceptional position among covert, criminal procedure-
43
related investigative measures, which justifies special sub-constitutional legal regulations that
protect basic rights, in particular that protect the core area of private lifestyles, persons enti-
tled to refuse to testify under Sections 53 and 53a of the Code of Criminal Procedure and
personal data obtained using the measure (Federal Constitutional Court, 1 BvR 668/04 of 27
July 2005, paragraph 162, Neue Juristische Wochenschrift 2005, 2603, 2611). This is also
true of the high material conditions for ordering the acoustic monitoring of private premises
and the competences to issue orders and obligations to provide justifications that ensure
they are met.
Given that legal restrictions on investigative activities may have a significant negative impact
on the search for truth that is the primary objective of the criminal proceedings, in order to
guarantee a functional criminal justice system, without which justice cannot be served
(BVerfGE [Collected Decisions of the Federal Constitutional Court] 33, 367, 383; 107, 299,
316), any such restriction requires careful consideration and particular legitimacy (see
BVerfGE 33, 367, 383; BVerfG, 1 BvR 77/96 of 22 August 2000, Neue Zeitschrift für Stra-
frecht 2001, 43 et seq.). The legislator is neither required nor, indeed, able to give individual
spheres of life absolute priority over important common interests. His considerations must
take account of the requirements of the constitutional administration of justice, the purpose of
which is to ensure justice and law and order within the limits imposed on it. Neither of these
can be achieved without an understanding of the decisive facts (in this regard, see in general
terms Neumann, Zeitschrift für die gesamte Strafrechtswissenschaft 1989, 52 et seq.;
Kroepil, Juristenzeitung 1998, 135 et seq.; Stock, in: FS für Mezger, p. 429, 433, 446 et seq.;
Weigend, Zeitschrift für die gesamte Strafrechtswissenschaft 2001, 271, 277, 279; Rieß, in:
Löwe/Rosenberg, Code of Criminal Procedure, 25th edition, introduction G, paragraph 43). In
this respect, the imperatives of effective administration of criminal justice must be taken into
account, and an essential objective of the criminal proceedings must be as comprehensive
an investigation of the truth as possible. The investigation of, in particular, serious crimes is
an important task for the constitutional state, a task that may be seriously affected by proce-
dural regulations that run counter to the investigation of the truth and thus to the reaching of
a fair verdict. This also affects the right of the accused to a fair trial, because anything with-
held from the charge is also withheld from the accused. However, the investigations neces-
sary to uncover the truth must not be pursued 'at any price' (BGHSt [Criminal case reference
at the Federal Court of Justice] 14, 358, 365; 31, 304, 309). Rather, the public interest in
prosecuting crimes must be balanced, at legislative level, against the legitimate interests of
those targeted by law enforcement measures.
44
II.
Some covert investigative measures involve major interference in the constitutionally pro-
tected rights of those involved. However, the criterion of secrecy is also a characteristic of
investigative measures involving less interference, such as the short-term observation per-
mitted under Sections 161 and 163 of the Code of Criminal Procedure. The covert surveil-
lance of a person does not necessarily involve disregarding his human rights (BVerfGE [Col-
lected Decisions of the Federal Constitutional Court] 109, 279, 313). Covert measures are,
just like open measures whose investigative purpose should not be put at risk, carried out
with no prior consultation of those affected. The difference between covert and open investi-
gative measures is that the subject of a covert measure is generally not aware of it. In addi-
tion, covert investigative measures also often 'cast a wide net': measures under Sections
100a and 100g of the Code of Criminal Procedure often include within their range large num-
bers of people who have given no grounds for suspicion (see BVerfGE [Collected Decisions
of the Federal Constitutional Court] 90, 145, 172; 100, 313, 376, 380; 107, 299, 320 et seq.).
Finally, certain covert investigative measures present the risk of the core area of a person's
private lifestyle being infringed on without their knowledge (see BVerfGE 109, 279 et seq.,
Federal Constitutional Court, 1 BvR 668/04 of 27 July 2005, paragraphs 152 et seq., Neue
Juristische Wochenschrift (NJW) 2005, 2603, 2610 et seq.).
The legislator has to take account of these particular features of covert investigative meas-
ures when striking a balance between general and individual interests.
In order to make it possible for an independent body to undertake precautionary monitoring
of such measures, those covert investigative measures connected with significant infringe-
ments of fundamental rights must be ordered by a court. As it is, by nature, not possible to
consult the parties affected before ordering and carrying out covert investigative measures, it
is generally appropriate under constitutional law, in order to guarantee the right to a hearing
in accordance with law (Article 103(1) of the Basic Law) and to effective legal protection (Ar-
ticle 19(4) of the Basic Law), to inform parties ex post facto of measures that affect their fun-
damental rights and to give them the option of subsequent legal recourse. The legislator may
also counter these particular risks by permitting covert investigative measures to be ordered
only on suspicion of certain offences and in cases where the initial suspicion is considerable.
Due to the increase in the technical possibilities for accessing available data, covert investi-
gative measures also often generate a large amount of data. As the transmission and further
use of such data represent (further) infringements on the party concerned's right to self-
45
determination in terms of their information and may exacerbate the previous infringement, it
is the responsibility of the legislator to create sub-constitutional precautions that adequately
ensure that the data is used only for the intended purpose.
With regard to these general characterising features of covert investigative measures, the
decision of the Federal Constitutional Court on the acoustic monitoring of private premises
does provide, despite the special position of these measures within the category of covert
investigative measures, general principles that should be applied, taking account of the par-
ticular features of the measure in question (see BVerfGE 109, 279, 366 f., 374, 379 et seq.).
Where this relates to obligations to notify (see in this regard BVerfGE 100, 313, 361 et seq.,
364; 107, 299, 337 et seq.; Federal Constitutional Court, 2 BvR 581/01 of 12 April 2005,
paragraph 55, Neue Juristische Wochenschrift 2005, 1338, 1340; 1 BvR 668/04 of 1 July
2005, paragraph 159, Neue Juristische Wochenschrift 2005, 2603, 2611) and data protection
regulations (see BVerfGE 69, 1, 49; 100, 313, 360, 364 et seq.), this opinion is in line with
previously established case law.
III.
The draft takes account of the findings of the jurisprudential and legal studies commissioned
as part of the preparations for the revision of the law on covert, criminal procedure-related
investigative measures.
1.
The study by Albrech, Dorsch and Krüpe on "Rechtswirklichkeit und Effizienz der Überwa-
chung der Telekommunikation nach den §§ 100a, 100b StPO und anderer verdeckter Er-
mittlungsmaßnahmen", 2003 [Legal reality and efficiency of the monitoring of telecommuni-
cations pursuant to Sections 100a and 100b of the Code of Criminal Procedure and other
covert investigation measures] uses an assessment of 501 criminal proceedings from 1998
as part of which telecommunications monitoring measures were taken, alongside extensive
surveys of experts, as a basis to undertake an in-depth analysis of the practice of telecom-
munications monitoring. This study demonstrates that telecommunications monitoring is an
important, successful and, ultimately, indispensable tool in solving crimes that are difficult to
investigate (see loc. cit. p. 355 et seq.)
46
However, it also reveals problems and shortcomings in the application of the law on tele-
communications monitoring, particularly with regard to the obligation to notify laid down in
Section 101(1) sentence 1 of the Code of Criminal Procedure. For example, the files showed
evidence of discussions regarding notification for only one third of the monitored telecommu-
nications connections (loc. cit. p. 276). There are differences of opinion in practice as to who
counts as a participant within the meaning of Section 101(1) sentence 1 of the Code of
Criminal Procedure and therefore has to be notified (loc. cit. p. 451). These shortcomings in
observance of the obligation to notify are also shown in a study from the University of Biele-
feld (Backes/Gusy, Wer kontrolliert die Telefonüberwachung?, 2003 [Who checks telephone
monitoring?], p. 71 et seq.). The study by Albrecht, Dorsch and Krüpe also shows that the
lack, in practice, of discussions regarding notification is not rectified by supervision. Rather,
the current uncertainties as to whether notification is necessary and, if so, who needs to be
notified and when, require legislative action in order to provide the necessary guidance for
practical application in line with the constitutional stipulations.
In application of the case law of the Federal Constitutional Court, the draft therefore not only
extends the obligations to notify to all intervention-intensive covert investigative measures,
but also clarifies which persons need to be notified. This improves ex post facto legal protec-
tion and increases practical awareness of the obligation to notify.
The study by Albrecht, Dorsch and Krüpe also found that, in around three quarters of cases,
the actual duration of telecommunications monitoring measures extends over no more than
two months (loc. cit. p. 170 et seq.). The draft therefore restricts the duration of an order for
telecommunications monitoring – and for the comparable monitoring of the non-publicly spo-
ken word outside dwellings under Section 100f of the Code of Criminal Procedure - Draft) –
to two months, with extensions of the order of two months in each case also being permitted.
On the basis of the findings of the study, which emphasises that telecommunications moni-
toring is an important and indispensable investigative measure, particularly in the field of vic-
timless (transactional) crime (loc. cit. p. 463), the list of offences that justify monitoring meas-
ures in Section 100a of the Code of Criminal Procedure is being comprehensively revised,
taking account of the stipulations of the Federal Constitutional Court (see BVerfGE 107, 299,
322; 109, 279, 346; BVerfG, 1 BvR 668/04 of 27 July 2005, paragraph 154, Neue Juristische
Wochenschrift 2005, 2603, 2610 et seq.).
The aim of the extensive harmonisation of the formal preconditions for ordering covert meas-
ures, and of the revised regulation in Section 162 of the Code of Criminal Procedure - Draft -
47
regarding the concentration of the local competence of the investigating court at the jurisdic-
tion of the public prosecutor, is to strengthen the legal control aimed at by the requirement of
judicial authority, as suggested by the study (loc cit. p. 467).
The study's suggestion of involving a lawyer as an 'ombudsman', as an additional control
mechanism, and of establishing a control committee has not, however, been followed (loc cit.
p. 468 et seq.). This does not appear to be necessary, because the public prosecutor's office
has to take account of the interests of all parties from its neutral position as the custodian of
the law, the aim of which is to ensure that the law is fulfilled. Furthermore, implementation of
these two proposals would appear to be inappropriate with regard to the aim of strengthening
independent checks by the investigating court and would also result in high monetary and
staffing costs. Nevertheless, it is one of the most important and noblest duties of the su-
preme justice departments – as shown in practice by the opinions forwarded by the Land
justice departments, though often not, or not successfully, implemented – to ensure the pro-
vision of the material and staffing resources necessary for effective legal protection (BVerfGE
2, 176, 179; 100, 313, 401; 103, 142, 152; 105, 239, 248; 109, 279, 358; Federal Constitu-
tional Court, 2 BvR 1737/05 of 29 November 2005, paragraph 43).
The study's consideration of special statutory regulations for a 'proactive' form of telecommu-
nications monitoring, for example in the case of transactional crime, has also not been fol-
lowed (loc cit. p. 465 et seq.). In such cases, a 'supervisory' use of telecommunications moni-
toring is guaranteed in the context of criminal law by the fact that criminal offences involving
the preparation of offences justifying monitoring measures within the meaning of Section
100a(2) of the Code of Criminal Procedure - Draft are also regarded as offences justifying
monitoring measures themselves (Section 100a(1)(1) of the Code of Criminal Procedure -
Draft ); in addition, the circumstances of certain such offences mean that they take effect
before the legally protected right is actually breached. In addition, there is as yet insufficient
evidence that it is constitutionally necessary to permit telecommunications monitoring as a
precaution for the investigation of future criminal offences; the draft therefore deliberately
refrains from permitting telecommunications monitoring in this connection.
2.
The findings set out in the study by Meyer-Wieck on "Rechtswirklichkeit und Effizienz der
akustischen Wohnraumüberwachung („großer Lauschangriff“) nach § 100c I Nr. 3 StPO"
[Legal reality and efficiency of the monitoring of telecommunications ('eavesdropping') pur-
48
suant to Section 100c I point 3 of the Code of Criminal Procedure] (2004), which overlap in
part with those of Albrecht/Dorsch/Krüpe, in particular with regard to deficiencies in informing
the parties concerned (loc cit. p. 79, 252 et seq., 268 et seq., 275 et seq., 365), have already
been taken into account as part of the revision of the regulations on the acoustic monitoring
of private premises, in the Act implementing the judgment of the Federal Constitutional Court
of 3 March 2004 (acoustic surveillance of private premises) of 24 June 2005 (Federal Law
Gazette I p. 1841)
3.
a) The collection "Zeugnisverweigerungsrechte bei (verdeckten) Ermittlungsmaßnahmen"
[Entitlement to refuse to testify in the case of (covert) investigative measures] compiled
by Wolter and Schenke brings together the findings produced by the Criminal and Po-
lice Law Working Group at the Mannheim Institute of German and European Criminal
and Police Law with regard to the research project 'Information gathering and assess-
ment by means of interrogation, intelligence and covert investigative measures' com-
missioned by the Federal Ministry of Justice. The aim of this research project was to
draw up a coherent overall concept in the field of covert investigative measures that
takes better account than the current legal situation both of the interests protected by
the entitlement to refuse to testify and of the interests of effective prosecution. The
regulatory proposal drafted by the working group provides for a ban on the collection
and assessment of evidence from covert investigative measures that obtain information
to which the entitlement to refuse to testify of defendants, members of parliament and
journalists, including their professional assistants (Section 53a of the Code of Criminal
Procedure) applies; it also provides for a ban on the assessment of evidence for such
findings to which the entitlement to refuse to testify of clergymen, lawyers, doctors and
the other persons listed in Section 53(1)(3) to (3b) of the Code of Criminal Procedure,
again including their professional assistants. Under the proposal, knowledge protected
by the entitlement of close relatives to refuse to testify under Section 52 of the Code of
Criminal Procedure may be assessed in accordance with a special evaluation of pro-
portionality.
b) The subject of the legal limits to investigative measures, particularly when they are car-
ried out without the knowledge of the parties concerned, has long been a controversial
topic in jurisprudence (see, for example, Beling, Die Beweisverbote als Grenzen der
Wahrheitserforschung im Strafprozess [Prohibitions on evidence as limitations on the
49
search for truth in criminal procedure], 1903; Grünwald, Juristenzeitung 1966, 489 et
seq.; Otto, Goltdammers Archiv für Strafrecht 1970, 290 et seq.; Sydow, Kritik der Le-
hre von den Beweisverboten [Criticism of theory of prohibitions on evidence], 1976;
Dencker, Verwertungsverbote im Strafprozess [Prohibitions on assessment in criminal
procedure], 1977; Rengier, Die Zeugnisverweigerungsrechte im geltenden und künfti-
gen Strafverfahrensrecht [Entitlements to refuse to testify in current and future proce-
dural criminal law], 1979; Rogall, Zeitschrift für die gesamte Strafrechtswissenschaft 91
[1979], 1 et seq.; Amelung, Informationsbeherrschungsrechte im Strafprozess [Rights
to control information in criminal procedure], 1990; Fezer, Grundfragen der Beweisver-
wertungsverbote [Basic issues regarding the prohibitions on the assessment of evi-
dence], 1995; Görtz-Leible, Die Beschlagnahmeverbote des § 97 Abs. 1 StPO im
Lichte der Zeugnisverweigerungsrechte [Prohibitions on the seizure of evidence in Sec-
tion 97(1) of the Code of Criminal Procedure in the light of the entitlement to refuse to
testify], 2000). An analysis of the literature shows that jurisprudence has not yet been
able to develop a practical and internally consistent theory regarding this limits. In this
connection, case law has worked on the principle that the public interest in criminal
prosecution needs to be balanced against the protected interests of those affected by
criminal prosecution measures in each individual case (known as the tenet of balance,
see Krekeler/Löffelmann, Anwaltskommentar zur StPO [Legal commentary on the
Code of Criminal Procedure], introduction, paragraph 140 et seq.; Meyer-Goßner,
Code of Criminal Procedure, 49th edition, introduction, paragraph 55a).
Moreover, the Federal Constitutional Court has ruled that there are no constitutional
grounds for giving the protected interests of persons, such as journalists, who are enti-
tled to refuse to testify general priority over the interest in criminal prosecution, but
rather that the two sides need to be weighed up in each individual case (BVerfGE [Col-
lected Decisions of the Federal Constitutional Court] 107, 299, 332). In particular, it has
ruled that the entitlements of elected representatives and members of the press to re-
fuse to testify have to direct connection with the core area of private lifestyle, but have
been granted for the sake of the functionality of the institutions, not in order to protect
the privacy of the suspect (BVerfGE [Collected Decisions of the Federal Constitutional
Court] 109, 279, 323).
c) Against the background of this case law, the working group's proposal does not do full
justice to the flexibility required under constitutional law of a legal regulation to balance
the conflicting interests. Rather, particular restraint needs to be exercised when drafting
regulations that could jeopardise the investigation of the true facts and thus result in
50
materially incorrect, and therefore unfair, verdicts. Effective criminal prosecution, the in-
terest in the comprehensive investigation of the truth and the detection of serious crime
are essential tasks of the state. The legislator must therefore, when assessing whether
to give certain interests absolute priority over other important common interests, take
account of the requirements for administration of justice providing constitutional guar-
antees. Regulations that restrict the investigation of the truth may also affect not only
the interests of the constitutional state but also the right of the suspect to a fair, consti-
tutional trial, because facts that are not available due to bans on the collection and ex-
ploitation of evidence are kept from both the defence and the prosecution. Entitlements
to refuse to testify and bans on the collection of evidence consequently restrict the
suspect's ability to clear his name. Bans on the collection and exploitation of evidence
thus form exceptions from the requirement for a comprehensive investigation of the
material truth, and thus present a risk of incorrect decisions. The grounds for such ex-
ceptions always require legitimation based on the principle of the rule of law (BVerfGE
[Collected Decisions of the Federal Constitutional Court] 33, 367, 383, see also Löffel-
mann, ZStW [Zeitschrift für die gesamte Strafrechtswissenschaft] 118 [2006], p. 358,
373 et seq.).
d) By inserting a new Section 53b in the Code of Criminal Procedure - Draft, the draft fol-
lows a concept of the justification of bans on the collection and exploitation of evidence
from keepers of professional secrets who are entitled to refuse to testify that is based in
terms of structure on the working group's proposal but differs from it, in some parts
considerably, in terms of content.
A comprehensive – absolute – collection and exploitation ban is only justified when
required by an interest granted equally absolute protection. The Federal Constitu-
tional Court stated this in its decision on the acoustic surveillance of private prem-
ises (loc. cit., paragraph 148) with a view to human dignity, with regard to pastoral
conversations with a member of the clergy and to conversations with defence coun-
sel. The collection and exploitation ban in Section 53b(1) of the Code of Criminal
Procedure-Draft takes account of this.
This absolute ban on the collection and exploitation of evidence also covers mem-
bers of parliament. Their entitlement to refuse to testify does not, according to the
Federal Constitutional Court, have any direct connection with the core area of pri-
vate life relating to human dignity. In this connection, granting communications with
members of parliament special protection that prohibits the collection of information
51
without the approval of the member of parliament is justified under Article 47 of the
Basic Law, which explicitly grants this professional group the entitlement to refuse to
testify and provides an associated prohibition on seizure. Where, however, these
open investigative measures concerning members of parliament require their
agreement (waiver of the entitlement to refuse to testify), the constitutional legisla-
tor's intention, through this measure, to provide extensive protection for members of
parliament is an argument for banning other, particularly covert, investigative meas-
ures, provided the entitlement of members of parliament to refuse to testify is ade-
quate.
With regard to other keepers of professional secrets granted the right to refuse to
testify under Section 53(1)(3) to (3b) and (5) of the Code of Criminal Procedure,
Section 53b(2) of the Code of Criminal Procedure - Draft provides a relative ban on
the collection and exploitation of evidence, the scope of which should be determined
on a case-by-case basis by examining the proportionality; this entails weighing up
the conflicting interests in the specific case.
Under Section 53b(3) of the Code of Criminal Procedure - Draft, professional assis-
tants (Section 53a of the Code of Criminal Procedure) are also regarded as keepers
of professional secrets, as accessories.
Section 53b(4) sentence 1 of the Code of Criminal Procedure makes it clear that
these protection regulations do not apply if the person entitled to refuse to testify is
involved in the criminal offence under investigation and is therefore the subject of in-
vestigative measures himself. With regard to members of the press, this regulation
on involvement is applicable to criminal offences that can only be prosecuted on pe-
tition or with authorisation only if the petition to prosecute has been filed or the au-
thorisation granted (see Section 53b(4) sentence 2 of the Code of Criminal Proce-
dure - Draft). This takes account of the legal-political desire to strengthen the institu-
tional protection of the press is procedural law.
Ultimately, the revision of Section 53b of the Code of Criminal Procedure is not –
unlike the working group's proposal – restricted to the field of covert investigative
measures, but also applies, in principle, to all investigative measures. This is be-
cause there are, in this respect, no decisive, convincing reasons to differentiate be-
tween covert and open investigative measures. Just one exception to this arises
from Section 53b(5) of the Code of Criminal Procedure - Draft, which states that
52
special collection bans laid down specifically in current law in the field of seizure and
the acoustic monitoring of private premises (Sections 97 and 100c(6) of the Code of
Criminal Procedure) remain unaffected; Section 53b of the Code of Criminal Proce-
dure - Draft therefore does not apply to these more specific regulations. Of course,
the right to refuse to testify under Sections 53 and 53a of the Code of Criminal Pro-
cedure, which is presupposed in the revision of Section 53b of the Code of Criminal
Procedure - Draft, also remains unaffected; in particular, the rights of the keepers of
professional secrets listed in Section 53(1)(3) to (3b) and (5) of the Code of Criminal
Procedure to refuse to testify are not modified by the regulation in Section 53b(2) of
the Code of Criminal Procedure, but remain in force in full. The same applies where
the Act gives persons entitled to refuse to testify the opportunity to refuse the meas-
ures on the basis of the entitlement to refuse to testify, as is the case in Section
81c(3) sentence 1 of the Code of Criminal Procedure.
IV.
The draft also aims to resolve uncertainties that have arisen in the application of the law in
the use of covert investigative measures.
For example, difficulties have arisen in practice due to the fact that information orders for
traffic data pursuant to Section 100h(1) sentence 1 of the Code of Criminal Procedure and
orders for telecommunications monitoring pursuant to Sections 100a and 100b of the
Code of Criminal Procedure must include the name and address of the person to whom
they relate, which is not possible if the suspect's exact name is not known. The draft takes
account of this problem by only requiring this information if possible, in other words if the
information is known (section 100b(2)(1) of the Code of Criminal Procedure - Draft).
The reference included in Section 100b(2)(2) of the Code of Criminal Procedure - Draft to
terminal equipment identification also clarifies that "IMEI1-based" telecommunications
monitoring is permitted, which was previously contested, though the legislator had already
in principle assented to it in Section 23b(4)(2) of the Customs Investigation Service Act
(ZFdG).
The Federal Constitutional Court's judgment of 4 February 2005 – 2 BvR 308/04 – led to
at times significant uncertainty regarding what provisions must be followed when seizing
1IMEI = International Mobile Equipment Identity.
53
data carriers on which traffic data are stored (see NJW 2005, 1637 et seq.). Section
110g(3) of the Code of Criminal Procedure - Draft makes it clear that the general provi-
sions apply to the permissibility of collecting such data. In addition to the general compe-
tence regulations in Sections 161 and 163 of the Code of Criminal Procedure, Section 94
et seq. thereof, in particular also apply for compulsory custody. This also corresponds to
the constitutional stipulations arising from the judgment since issued by the Federal Con-
stitutional Court on 2 March 2006. 2 BvR 2099/04, according to which traffic data stored
within the domain of the communications subscriber are protected not by the telecommu-
nications secrecy under Article 10(1) of the Basic Law but by people's right to self-
determination in terms of their information under Article 2(1) in conjunction with Article
1(1) of the Basic Law (Federal Constitutional Court, 2 BvR 2099/04 of 2 March 2006,
paragraph 72 = BVerfGE 115, 166 et seq.). In this connection, it should also be noted that
the collection and custody, where necessary compulsory, of inventory and usage data
from telemedia services in criminal proceedings also follow the general provisions, and
thus that there is no need for a specific statutory regulation such as the one in Section 8a
of the Federal Constitution Protection Act for the powers of the Federal Constitution Pro-
tection Office.
In practice, there is also occasionally uncertainty as to which court is responsible for issu-
ing monitoring and information orders, if a telecommunications service provider estab-
lishes a subsidiary or office in a different location from the headquarters, and this subsidi-
ary or office puts the monitoring measure into practice. The draft solves this problem by
means of the concentration regulation in Section 162(1) of the Code of Criminal Proce-
dure - Draft, which both promotes specialisation in judicial investigative activities and thus
is expected to increase the effectiveness of the legal control aimed at by the requirement
of judicial authority.
There have also been uncertainties in practice with respect to the question of whether
enquiries regarding the owner of a dynamic IP address can be based on an information
request under Sections 161 and 163 of the Code of Criminal Procedure in conjunction
with Section 113 of the Telecommunications Act, or whether they can only be made in ac-
cordance with Sections 100g and 100h of the Code of Criminal Procedure. Consideration
was therefore given to resolving this uncertainty by means of a clarifying regulation in
Section 113 of the Telecommunications Act. However, on the basis of applicable case law
on the applicability of Section 113 of the Telecommunications Act that has since been laid
down, this no longer seems necessary (see Stuttgart District Court, MMR [MultiMedia und
Recht] 2005, 628 et seq.; MMR 2005, 624 et seq..; Hamburg District Court, MMR 2005,
54
711; Würzburg District Court, NStZ-RR [Neue Zeitschrift für Strafrecht - Rechtsprechungs-
Report Strafrecht] 2006, 46; Hechingen District Court, decision of 19 April 2005 – 1 Qs
41/05; see also Austrian law: Austrian Supreme court, ZUM RD [Zeitschrift für Urheber-
und Medienrecht - Rechtsprechungsdienst] 2006, 59; the opposite view is, as far as can
be seen, taken only by the Bonn District Court, DuD [Datenschutz und Datensicherheit]
2005, 832 et seq.). Some of the literature follows this opinion (see Löffelmann, AnwBl
[Anwaltsblatt] 2006, 598, 601; Meyer-Goßner, op. cit., Section100g, paragraph 4; Sankol,
MMR 2006, 361, 365; ultimately also Seitz, Strafverfolgungsmaßnahmen im Internet [Law
enforcement measures on the Internet, 2004, p. 96 et seq.). Where the literature does
present the opposite view (see Bär, MMR 2005, 626 et seq., and Gercke, CR [Computer
und Recht] 2005, 598 et seq., in each case in comments regarding the aforementioned
decisions of the Stuttgart District Court; Gnirck/Lichtenberg, DuD 2004, 598; Köbele, DuD
2004, 609), the arguments put forward are unconvincing.
The general opinion is that the regulations in Section 111 et seq. of the Telecommunica-
tions Act in conjunction with the general powers of the law enforcement agencies laid
down in Section 161(1) sentence 1 and Section 163 of the code of Criminal Procedure are
relevant to enquiries regarding inventory data on a static IP addresses. The same is true
of enquiries regarding inventory data on a dynamic IP address. The decisive point is that
such requests for information by the law enforcement agencies relate only to provision of
the inventory data covered by the regulations in Section 11 et seq. of the Telecommunica-
tions Act, and not to the collection of traffic data, which are afforded special protection by
Article 10 of the Basic Law and which are necessarily already known to the law enforce-
ment agencies when they make the information request. The fact that, in the case of dy-
namic IP addresses, the service provider required to provide the information, in order to
fulfil the information request, must as a matter of course use internal traffic data records to
assign the IP to a customer identification and thus use this to find the customer's name
and address from the inventory data and report this does not change the fact that the law
enforcement agencies are, in such cases, only collecting inventory data. The legislator
made this clear when Sections 100g and 100h were inserted into the Code of Criminal
Procedure in the 14th legislative period, by pointing out that the provision of information
on the name of the person 'behind' an IP or email address is covered by the regulations in
the Telecommunications Act on requests for inventory data (see Bundestag parliamentary
papers 14/7008, p. 7). The Bundesrat adopted the substance of this opinion in its position
on the draft Act on improving the enforcement of intellectual property law (Bundesrat par-
liamentary papers 64/07 [Resolution] p. 7 et seq.).
55
V.
The aim of the draft is also to implement into national law the stipulations relating to proce-
dural criminal law in the Council of Europe's Convention on Cybercrime (No 185 in the Euro-
pean Treaties Series [ETS]), which Germany signed on 23 November 2001.
Article 16(1) of the Convention requires the parties to adopt such legislative measures as
may be necessary to enable their competent authorities to order or similarly obtain the ex-
peditious preservation of specified computer data, including traffic data, that has been
stored by means of a computer system, in particular where there are grounds to believe
that the computer data is particularly vulnerable to loss or modification.
Under German procedural criminal law, computer data is seized by means of seizing the
data carrier on which the data is stored (see Schäfer, in: Löwe/Rosenberg, Code of Crimi-
nal Procedure, 25th edition, Section 94, paragraph 14, 27 et seq.; Meyer-Goßner, loc. cit.,
Section 94, paragraph 4; Nack, in: Karlsruher Kommentar zur StPO [Karlsruhe commen-
tary on the Code of Criminal Procedure], 5th edition, Section 94, paragraph 4; Bär, Der
Zugriff auf Computerdaten im Strafverfahren [Access to computer data in criminal pro-
ceedings], 1992, 246 et seq.; Germann, Gefahrenabwehr und Strafverfolgung im Internet
[Risk prevention and law enforcement on the Internet], 2000, 533 et seq.; Gercke, MMR
2004, 801, 805). Under German law, the requirement in Article 16(1) of the Convention to
enable the expeditious preservation of stored computer data can be met in exigent cir-
cumstances by means of a seizure order by the public prosecutor's office and its investi-
gative officers under Section 98(1) sentence 1 of the Code of Criminal Procedure. How-
ever, this is problematic when it is necessary to access parts of a computer system (e.g. a
network computer on an intranet or the Internet) that are physically separated from the
access device (e.g. personal computer) and there is a risk that data relevant as evidence
could be deleted before the data carrier can be physically seized. Article 19(2) of the Con-
vention therefore also requires each party to adopt such legislative and other measures as
may be necessary to ensure that where its authorities search or similarly access a specific
computer system or part of it and have grounds to believe that the data sought is stored in
another computer system or part of it in its territory, and such data is lawfully accessible
from or available to the initial system, the authorities shall be able to expeditiously extend
the search or similar accessing to the other system. In this connection, Article 32 of the
Convention provides that, under the conditions set out in that article, the search can be
extended to accessible data in another country.
56
As the ability to extend the search to other computer systems is not yet laid down in cur-
rent law (see Bär, op. cit., p. 217 et seq.; Germann, op. cit. p. 544 et seq.; Matzky, Zugriff
auf EDV im Strafprozess [Access to computers in criminal proceedings], 1999, p. 238),
Section 110(3) of the Code of Criminal Procedure - Draft allows searches of electronic
data carriers to be extended to physically separate storage unit to which the party con-
cerned is entitled to grant access, and data that could be relevant to the investigation to
be stored, if there are grounds to believe that it could be lost before the physically sepa-
rate data carrier can be seized.
In connection with the expeditious preservation of traffic data referred to in Article 17 of
the Convention, it is also problematic that the data needed for the provision of information
under Sections 100g and 100h of the Code of Criminal Procedure are currently often ei-
ther not saved at all, or have already been deleted before a judicial information order can
be issued. It is therefore questionable whether the judicial order for the provision of infor-
mation that is in principle necessary adequately enables the expeditious preservation of
traffic data required under Article 17 in conjunction with Article 16(1) of the Convention
(see Gercke, CR [Computer und Recht] 2004, 782, 790; id., MMR [MultiMedia und Recht]
2004, 801, 802). In order to avoid the necessary data being lost and to counter constitu-
tional concerns regarding the widespread practice among law enforcement agencies of in-
formally contacting service providers by telephone to request the preliminary preservation
of the necessary data (see Gercke, MMR 2004, 801, 802), consideration was initially
given to laying down a requirement, in Section 100g of the Code of Criminal Procedure -
Draft, for parties obliged to provide information to keep traffic data generated by them pur-
suant to a police or public prosecutor's order for one week, if the law enforcement agen-
cies notify them of an application for a judicial order for the collection of the data. How-
ever, this proved to be unnecessary on the basis of Directive 2006/24/EC on the retention
of traffic data (in this regard, see Section VI below).
Articles 16 and 17 of the Convention relate in general terms to the preservation of saved
computer and traffic data for use in criminal proceedings. The regulations only restrict the
obligation to provide information to agencies that provide telecommunications services on
a commercial basis, as was previously the case in Section 100g(1) sentence 1 of the
Code of Criminal Procedure, subject to the reservation in Article 16(4) in conjunction with
Article 14(3)(b) of the Convention, in other words only in the case of the collection of traffic
data in real time. The draft thus extends the scope of Section 100g of the Code of Crimi-
57
nal Procedure to all persons and agencies involved in the transmission process, regard-
less of whether they provide the services in question on a commercial basis.
Finally, Article 20(1)(a) of the Convention requires the parties to adopt such legislative and
other measures as may be necessary to empower its competent authorities to collect traf-
fic data, in real-time, "associated with specified communications in its territory transmitted
by means of a computer system". Article 20 of the Convention does not provide for a re-
striction of real-time collection to certain offences, but this would be possible pursuant to
the reservation under Article 20(4) in conjunction with Article 14(3)(a) of the Convention.
The currently applicable German regulation giving equal treatment to the real-time collec-
tion of traffic data and data on the content of telecommunications in accordance with Sec-
tion 100a of the Code of Criminal Procedure would, at the same time, represent the fur-
thest extreme of a reservation that would be permitted under Article 14(3)(b) of the Con-
vention. Under the Convention, therefore, the real-time collection of traffic data must at
least be provided for those offences for which monitoring of telecommunications content is
permitted, i.e. for all the offences listed in Section 100a of the Code of Criminal Proce-
dure.
However, in Article 14(2) sentence 5 of the Convention the parties undertook to consider
restricting such a reservation to enable the broadest application of the collection of traffic
data in real time. The result of this consideration was:
Under German law, it would be constitutionally inappropriate to restrict the real-time col-
lection of traffic data according to the rules on the collection of content data within the
meaning of Section 100a of the Code of Criminal Procedure, even though this would be
possible, albeit detrimental to effective criminal prosecution, under the reservation option,
on account of the difference in the levels of interference presented by the two measures.
The material restrictions on obtaining traffic data already laid down in Section 100g(1) of
the Code of Criminal Procedure, and those added in the present draft, in fact also provide
sufficient limitations for the measure with regard to the collection of traffic data in real time.
In addition, the harmonisation of Section 100g of the Code of Criminal Procedure with the
procedural regulations in Sections 100b and 101 of the Code of Criminal Procedure - Draft
also provides better legal protection for the parties concerned than the current legal situa-
tion with regard to the collection of traffic data. It is therefore sensible and appropriate to
establish the principles of the power to collect traffic data such that it is also possible to
collect this data in real time under the conditions in Section 100g of the Code of Criminal
Procedure. This is achieved by regulatory means in particular via the extensive reference
58
to Section 100b of the Code of Criminal Procedure - Draft in Section 100g(2) sentence 1
of that Code.
However, because of the possibility of establishing a current picture of the movements of
the party concerned, the real-time collection of location data should only be permitted in
the case of a criminal offence, which, even in an individual case, is of considerable signifi-
cance, and not for all criminal offences committed using telecommunications. This is
made clear in Section 100g (1) sentence 3 of the Code of Criminal Procedure- Draft. This
does not involve a deviation from the provisions in Article 20 of the Council of Europe's
Convention on Cybercrime, since, under that article, real-time collection is only appropri-
ate in the case of data defined as traffic data in Article 1(d) of the Convention, and that
definition does not cover location data.
VI.
Finally, the draft serves to transpose Directive 2006/24/EC of the European Parliament and
of the Council of 15 March 2006 on the retention of data generated or processed in connec-
tion with the provision of publicly available electronic communications services or of public
communications networks and amending Directive 2002/58/EC (OJ L 105 p. 54 et seq.).
1.
The main key elements of the directive are as follows:
According to Article 1(1) of the Directive, it aims, first of all, to harmonise Member States'
provisions concerning the obligatory retention of traffic data and at the same time to ensure
that the data are available for the purpose of the prosecution of crime.
Under Article 3(1) of the Directive, the Member States must ensure that the data specified in
Article 5 of the Directive are "retained" without particular grounds in an individual case, to the
extent that those data are generated or processed by service providers in the process of
supplying their communications services. Article 6 of the Directive provides for a period of
retention of not less than six months and not more than two years. Article 5(2) of the Direc-
tive makes it clear that No data revealing the content of the communication may be retained
pursuant to the Directive.
59
It also follows from the description of the purpose of retention in Article 1(1) of the Directive
that data retained in accordance with the Directive may be used for the criminal prosecution
purposes referred to in that article. The Directive deliberately makes no stipulation on the
issue of whether this data may be used for other purposes. Article 11 of the Directive in con-
junction with Article 15(1) of the Directive on privacy and electronic communications
(2002/58/EC) instead states that, in this respect, the Directive does not constitute a definitive
regulation and therefore that the "retained" data may be used for other purposes within the
limits of Article 15(1) of Directive 2002/58/EC. Irrespective of the issue of the permitted uses,
Article 4 of the Directive requires the Member States to adopt appropriate provisions regard-
ing the forwarding of and access to data retained in accordance with the Directive.
Articles 7 and 13 of the Directive lay down requirements regarding data protection and data
security and remedies, liability and penalties that largely correspond to the current legal
situation and the applicability of which in relation to the data retained in accordance with the
Directive is clear.
Article 10 of the Directive requires the Member States to send the Commission statistics in-
cluding the data described in detail in that article on an annual basis. This data will be used
in the evaluation of the application of the Directive and its impact on economic operators and
consumers that, under Article 14 of the Directive, the Commission must submit by 15 Sep-
tember 2010. This evaluation will be used to determine what, if any, amendments need to be
made to the Directive, particularly due to further developments in telecommunications tech-
nology.
2.
The issue of the legal basis for an EU instrument introducing an obligation to retain traffic
data was the subject of much controversy during the consultations and European level and in
the Member States, and there still remain differences of opinion on the matter. Both the draft
Framework Decision proposed by France, Sweden, Ireland and the United Kingdom on 28
April 2004 and subjected to initial consultations, which was based on Articles 31 and 34 of
the Treaty on European Union (EU Treaty) and the Commission proposal for a Directive
based on Article 95 of the Treaty establishing the European Community (EC Treaty) were
objected to on the grounds of the lack of a legal basis.
60
The legal services of the Commission and Council both took the view, in their expert opinions
of 22 March 2005 and 5 April 2005, respectively, that the introduction of obligations to retain
traffic data was a Community matter that could not be regulated by a Framework Decision
within the 'third pillar' of the EU (Title VI of the EU Treaty on police and judicial cooperation in
criminal matters). They essentially justified this view by the fact that the handling of traffic
data was already regulated in Article 6(1) of the Directive on privacy and electronic commu-
nications (2002/58/EC), which provides, in principle, for the data to be erased or made
anonymous. A legal instrument requiring the Member States to enact regulations on the re-
tention of this data would affect this provision and thus be impermissible in the 'third pillar'
under Article 47 of the EU Treaty. They also state that the saving clause included in Article
15(1) of the Directive on privacy and electronic communications for certain deviating legal
provisions in the Member States does not lead to a different evaluation, as the exemption
should be set out restrictively and essentially only permitted deviating regulations in individ-
ual cases. The fact that the individual Member States have adopted widely differing retention
provisions for traffic data, or even none at all, hinders the internal market in electronic com-
munications, because service providers, most of which operate internationally, are faced with
varying legal provisions. A legal instrument introducing uniform retention obligations at EU
level would serve to harmonise these different legal systems and would thus improve the
operation of the internal market. Therefore, a legal instrument of this kind should be based
on Article 95 of the EC Treaty and should be adopted under the European Parliament's co-
decision procedure pursuant to Article 251 of the EC Treaty. This view has now been en-
dorsed by all the Member States (with the exception of Ireland and Slovakia).
Ultimately, the German Government also could not turn a deaf ear to the arguments pre-
sented, particularly since the contrary opinion that it initially held – in agreement between the
Bundestag and the Bundesrat – was considerably weakened by the judgment of the Euro-
pean Court of Justice of 13 September 2005 (case C-176/03), which annulled the Framework
Council Decision on the protection of the environment through criminal law on the grounds
that it encroaches on the powers granted to the Community. Against this background, the
German Government approved the Directive at the Justice and Home Affairs Council of 21
February 2006, having been called on to do so in the resolution of the Bundestag of 16 Feb-
ruary 2006 (Bundestag parliamentary papers 16/545, p. 4).
61
3.
Under Article 15(1) sentence 1 of the Directive, the legal provisions necessary to transpose
the Directive regarding traffic data in the fields of landline and mobile telephony must be
brought into force by 15 September 2007. With regard to the obligations to retain traffic data
from the Internet, Germany and 15 other Member States have made use of the option laid
down in Article 13(3) of the Directive to postpone entry into force until 15 March 2009.
These deadlines must be met regardless of the prospects of success in the action brought
before the European Court of Justice by Ireland on 5 July 2006 for annulment of the Directive
(case C-301/06). The calls from various quarters to postpone transposition until the Euro-
pean Court of Justice has made a judgment in that case cannot be heeded, not least for legal
reasons, as, under Article 242 sentence 1 of the EC Treaty, the action does not have sus-
pensory effect. The pending action thus does not release the Member States from their obli-
gation under Article 249 of the EC Treaty to transpose the Directive and does not justify an
infringement of Community law. Moreover, in its resolution of 16 February 2006 (Bundestag
parliamentary papers 16/545, p. 4), the Bundestag called on the German Government to
submit a transposing Act as soon as possible.
4.
The present draft takes account of the Bundestag's calls not to lay down regulations regard-
ing retention time and the types of data collected that go beyond the minimum requirements
set out in the Directive and to permit the use of the retained data for criminal prosecution
purposes only in the case of serious crime and crimes committed using telecommunications
(Bundestag parliamentary papers 16/545, p. 4). In accordance with these demands, Article 2
of this draft (amendment of the Telecommunications Act) essentially transposes the require-
ments of the Directive as follows:
The determination of the data types to be retained by the service providers under Section
113a(2) to (4) of the Telecommunications Act - Draft is limited to the stipulations in Article
5(1) of the Directive.
Under Section 113a(5) of the Telecommunications Act - Draft, these data must be retained in
the case of 'unsuccessful call attempts' within the meaning of Article 3(2) and Article 2(2)(f) of
the Directive only if this data is in any event retained or recorded by the service providers for
62
the purposes specified in Section 96(2) of the Telecommunications Act. Under Section
113a(2) to (4)(c) of the Telecommunications Act - Draft, only the location data of the tele-
phones making and receiving the call at the beginning of the mobile telephone call must be
retained.
Under Section 113a(8) of the Telecommunications Act - Draft, the content of the communica-
tion and any data concerning the websites called up must not be stored on the basis of the
foregoing retention regulations.
Section 113a(1) sentence 1 of the Telecommunications Act - Draft provides for a retention
time of 6 months.
Under Section 113b sentence 1 of the Telecommunications Act - Draft, the stored traffic data
may be used for the prosecution of criminal offences, to avert significant threats to public
safety and to fulfil statutory information service tasks. Under Section 100g(1) of the Code of
Criminal Procedure - Draft (in conjunction with Section 100b(3) thereof), law enforcement
agencies may require service providers to provide information regarding stored traffic data in
order to prosecute a criminal offence, which, even in an individual case, is of considerable
significance or a criminal offence committed using telecommunications, whereby, for the lat-
ter category, Section 100g(1) sentence 2 of the Code of Criminal Procedure - Draft restricts
the use of the data by means of a narrow subsidiarity clause and also stresses that the col-
lection of the data must be proportionate to the significance of the matter.
The draft does not provide for the service provider to be compensated for any investment
costs connected with meeting the retention obligations. This is in line with the current legal
situation under Section 110(9) sentence 2 of the Telecommunications Act, which is to be
retained. It seems that the expected investment costs will not be as high as was initially
feared during the consultations on the Directive, especially since it was possible to avoid par-
ticularly expensive storage provisions at European level (e.g. storage of "unsuccessful call
attempts", even if these were not previously stored or recorded by service providers; storage
of location data during and at the end of mobile telephone calls). Moreover, investment costs
necessary to fulfil storage obligations in comparable situations (e.g. under Section 9 of the
Money Laundering Act) are also not reimbursed. Furthermore, compensation would present
considerable practical problems, because it would be very difficult to determine reliably to
what extent a specific investment requirement was caused solely by the introduction of the
storage obligations, especially as the telecommunications sector is characterised by particu-
larly dynamic developments in installation and system technology. In addition, service pro-
63
viders are compensated for use during sovereign investigative measures in individual cases
under the Court Payment and Compensation Act.
Finally, the Federal Justice Ministry is currently planning – as called for by the Bundestag in
its resolution of 16 February 2006 (Bundestag parliamentary papers 16/545, p. 4) – to revise
the provisions of the Judicial Remuneration and Compensation Act (JVEG) on compensation
for service providers for use during sovereign investigative measures, with the aim, in par-
ticular, of simplifying the calculation and invoicing of compensation; this, too, should reduce
the administrative outlay of both the service providers and the user organisations and thus
help avoid costs. In addition, the user organisations and service providers – with the in-
volvement of the German Government – are currently discussing other options for standard-
ising and simplifying the information procedure, which would reduce costs for the service
providers if implemented and the development of which should be awaited.
5.
The transposition of the Directive as implemented in the current draft is constitutionally valid.
Although the introduction of legal provisions requiring service providers to retain traffic data
encroaches on telecommunications users' right to secrecy under Article 10(1) of the Basic
Law and on the freedom of occupational practice of telecommunications service providers
under Article 12(1) of the Basic Law, these basic rights are not guaranteed with no restric-
tions. They may be subject to statutory restrictions for reasonable public interest reasons,
provided, in particular, the limits of proportionality are respected, in other words the restrictive
statutory regulation is appropriate and necessary to achieve the intended aim and the extent
of the loss of constitutionally protected freedoms is in proportion to the public interest that the
restriction of basic rights aims to protect.
The statutory obligation for the service providers to retain certain traffic data aims, in particu-
lar, to guarantee effective criminal prosecution, and thus pursues a reasonable public inter-
est.
It is also appropriate for achieving this objective, as it ensures that the relevant traffic data
are available for criminal prosecution purposes for a certain period of time, even if the data is
not, or no longer, needed by the service providers for commercial reasons. The ability to ac-
cess available traffic data is very important for effective criminal prosecution (see Seitz,
Strafverfolgungsmaßnahmen im Internet [Criminal prosecution measures on the Internet],
64
2004, p. 147; Breyer, Die systematische Aufzeichnung und Vorhaltung von Telekommunika-
tions-Verkehrsdaten für staatliche Zwecke in Deutschland [The systematic recording and
retention of telecommunications traffic data for State purposes in Germany], 2008, p. 9 et
seq. and passim; Zöller, in: FG für Hilger, p. 291, 304 et seq.; Welp, Goltdammers Archiv für
Strafrecht (GA) 2002, 535, 536 et seq.; Wohlers/Demko, Strafverteidiger (StV) 2003, 241;
Wolter, in: Systematischer Kommentar zur StPO [Systematic commentary on the Code of
Criminal Procedure], Section 100g, margin number 5). This has also been acknowledged in
the case law of the Federal Constitutional Court (see Federal Constitutional Court, 2
BvR 2099/04 of 2 March 2006, paragraph 103 = BVerfGE [Collected Decisions of the Federal
Constitutional Court] 115, 166 et seq.; BVerfGE 107, 299, 316). The law enforcement agen-
cies' power to demand information from service providers regarding retained traffic data has
proven to be an important investigative tool in many areas of crime; knowledge of traffic data
is now more or less indispensable in uncovering the complex criminal networks characteristic
of international terrorism and organised crime, and in solving criminal offences committed
using telecommunications.
The introduction of “data retention” is also required, since less intervention-intensive means
are unsuited to achieving the sought-after goal in the same way. This applies, in particular, to
the safekeeping ordinance relating to individual cases, occasionally referred to as an alterna-
tive and already laid down for special cases in Section 16b(1)(1) of the Act on securities trad-
ing (what is known as the “Quick Freeze”, cf., in this connection, Article-29-data protection
group, position 4/2005 of 21 October 2005, p. 7; Scientific Service of the German Bundestag,
WD 3 – 282/06, p. 12; Bäumler, DuD [data protection and data security] 2001, 348, 351;
Alvaro, RDV 2005, 47, 48; Büllingen, DuD 2005, 349, 351). The legal regulation governing
such a safekeeping ordinance, applicable to individual cases and obliging the service pro-
vider not to delete stored traffic data, is not suited in the same way to promoting effective
criminal prosecution (see also Seitz, loc. cit. p. 242; Breyer, loc. cit. p. 346). The “quick-
freezing” of the required traffic data by the service providers at the request of the criminal
prosecution authorities would inevitably be to no avail if none of the relevant traffic data were
stored by the service providers or had already been deleted by them and so could not be
saved. Because of the increasing prevalence of flat-rate tariffs, whereby the service provid-
ers do not need traffic data for accounting purposes and are also not, therefore, in principle
obliged under current law to store it (cf. Darmstadt district court, MMR [Multi-Media und
Recht: multimedia and law] 2006, 330 et seq., having the force of law on the basis of the De-
cision of the Federal Supreme Court of 26 October 2006, III ZR 40/06), this is increasingly
the case. Even after the introduction of the legal conditions for short-term safekeeping ordi-
nances applicable to individual cases, the effectiveness of an investigative measure pursuant
65
to Section 100g of the Code of Criminal Procedure would depend on the particular remunera-
tion tariff agreed between the service provider and his customer.
Nor, finally, are the regulations laid down for the purpose of transposing the directive dispro-
portionate to the goal, pursued by means of said regulations, of promoting effective criminal
prosecution.
With regard to intrusion upon telecommunications secrecy, the telecommunications user is
obliged, when giving the required overall consideration to the matter, to ensure that traffic
data has meaningful content particularly worthy of protection since, in individual cases, the
data permits significant conclusions to be drawn concerning the behaviour of telecommunica-
tions users in terms of their communications and movements (cf. BverfG [Federal Constitu-
tional Court], 2 BvR [Constitutional appeal reference at the Federal Constitutional Court]
2099/04 of 2 March 2006, paragraph number 92 = BVerfGE [Collected Decisions of the Fed-
eral Constitutional Court] 115, 166 et seq.). What is more, data is stored independently of
any particular suspicion of a criminal act having been committed and embraces an unspeci-
fied large number of people. With regard to intrusion upon the relevant service providers’
freedom to exercise a profession, it should be noted that transposition of the legal storage
obligations will probably have something of a burden associated with it if the telecommunica-
tions industry too has not submitted specific, detailed and reconstructable information – hav-
ing an impact, therefore, on the Federal Government – about the costs that are in actual fact
to be expected.
On the other hand, a lot of importance is to be attached to guaranteeing effective criminal
prosecution. The Federal Constitutional Court has again emphasised the absolute need for
effective criminal prosecution, stressed the public interest in as complete as possible an in-
vestigation into the truth in criminal proceedings and designated the effective clearing up of,
in particular, serious criminal offences as an essential task for a community under the rule of
law (cf. only BVerfG [German designation: Federal Constitutional Court], 2 BvR [Constitu-
tional appeal reference at the Federal Constitutional Court] 2099/04 of 2 March 2006, para-
graph 98 = BVerfGE [Collected Decisions of the Federal Constitutional Court] 115, 166 et
seq.; BVerfGE 100, 313, 388 f.; 107, 299, 316). In fulfilling this task, the guaranteed availabil-
ity of traffic data for criminal prosecution purposes has an important and, in a number of ar-
eas of crime (particularly where complex criminal gangs and offences committed using tele-
communications are concerned), indispensable contribution to make.
66
Within the framework of the overall consideration given to this matter, it is also important that,
in the negotiations at European level, it was possible to limit the storage obligations to the
minimum required for the purposes of criminal prosecution and to dispense with the more
detailed regulations initially demanded, particularly in the area of the Internet and of mobile
telephony, and it is important, furthermore, that the storage obligations laid down for pur-
poses internal to particular states serve only the transposition of these minimum require-
ments. With special regard to intrusion upon the secrecy of telecommunications, it shall also
be ensured that data is stored automatically, that is to say without people being aware of it,
and that access to the stored traffic data continues in principle to require a court order pursu-
ant to Section 100g(2)(1) in conjunction with Section 100b(1) of the Code of Criminal Proce-
dure – Draft. Finally, the criminal prosecution authorities are only permitted to access the
traffic data stored in accordance with Section 113a of the Telecommunications Act – Draft for
the purpose of bringing prosecutions for criminal offences of considerable individual impor-
tance, as well as for the purpose of bringing prosecutions for criminal offences committed by
means of telecommunications and in circumstances when it would be impossible to research
the facts in any other way and when the data collection is suitably proportionate to the impor-
tance of the matter concerned.
Nor is the case law of the Federal Constitutional Court contrary to the introduction of storage
obligations for traffic data (cf. Seitz, op. cit. p. 243 f.). If a “strict ban on the collection of per-
sonal data for the purposes of retention" is emphasised in decisions by the Federal Constitu-
tional Court (most recently BVerfG [Federal Constitutional Court], 1 BvR [Constitutional ap-
peal reference at the Federal Constitutional Court] 518/02 of 4 April 2006, paragraph 105 =
BVerfGE [Collected Decisions of the Federal Constitutional Court] 115, 320 et seq.), this re-
fers to the collection of personal data “retained for unspecified or not yet specifiable pur-
poses” (cf. BVerfGE 65, 1, 46; 100, 313, 360). Such data collection for unspecified or not yet
specifiable purposes is not the subject of this draft. The introduction of storage obligations for
traffic data should guarantee that such data is available for the purposes of criminal prosecu-
tion.
VII.
In summary, the key elements of the draft can be characterised as follows. The purpose of
the draft is to
− harmonise and strengthen the legal protection of those persons affected by covert investi-
gative measures;
67
− harmonise and supplement the regulations relating to the use of the personal data ob-
tained through such measures;
− clarify the limitations on the search for truth and emphasise the particular worthiness of
protection of keepers of professional secrets;
− to eradicate uncertainties that have arisen in the application of the law with regard to cov-
ert investigative measures;
− to transpose the requirements of the Council of Europe’s Convention on Cybercrime and
the EU Directive relating to the “retention” of traffic data.
On the whole, the new regulation is intended to deal with the profusion of regulations and
unclear terminology in the legal sphere in question that has been criticised by the industry
(cf. Albrecht/Dorsch/ Krüpe, loc. cit., p. 461), while in principle retaining the previous struc-
ture.
As a result of the inclusion of tax offences in the list of criminal offences that justify monitor-
ing measures in Section 100a(2) of the Code of Criminal Procedure-Draft, the amendments
in Article 3 of the draft also eradicate the discrepancies in classification and problem situa-
tions in Section 370 et seq of the Fiscal Code.
VIII.
The legislative authority of the Bund follows essentially from Article 74(1) point 1 of the Basic
Law (criminal law, judicial proceedings, judicature) and Article 73(1) point 7 of the Basic Law
(telecommunications).
IX.
1.
The draft takes account of the provision in Section 1(2) of the Federal Equal Opportunities
Act, which requires the legal and administrative provisions of the Bund to also express the
equality of men and women linguistically. A gender-neutral language is used throughout, ex-
cept where it is necessary to retain legally defined terms (cf. Section 157 of the Code of
Criminal Procedure: "the suspect" [German: der Beschuldigte], "the defendent" [German: der
68
Angeklagte]; Section 76(1) of the Act on the constitution of courts: "the presiding judge"
[German: der Vorsitzende]; Section 19 of the Federal Data Protection Act: “the person con-
cerned" [German: der Betroffene].
2.
The draft is compatible with European law. In particular, it takes account of the transposal
obligations in Directive 2006/24/EC.
X.
The following cost-related effects can be expected as a result of the draft:
1.
Cost-related effects for law enforcement agencies and courts of the Bund and Länder
The law enforcement agencies and courts of the Bund and Länder will essentially experience
the following additional and reduced costs:
- No additional or reduced costs are expected as a result of the regulations in Section
53b of the Code of Criminal Procedure–Draft in view of the fact that keepers of profes-
sional secrets have hitherto only been affected by investigative measures in individual
cases.
- The amendments to telecommunications monitoring in Sections 100a and 100b of the
Code of Criminal Procedure, in particular the restriction to criminal offences that are
also serious in individual cases, whilst undertaking a moderate amendment of the list of
criminal offences that justify monitoring measures, enable this investigative instrument
to be used in an even more targeted manner and consequently are not expected to re-
sult in any additional costs. The inclusion of criminal offences pursuant to the Fiscal
Code will also help to secure tax revenues and will therefore have a (no more precisely
quantifiable) positive effect on the tax budgets. The collection of statistics provided for
in Section 100b(5) and (6) essentially makes the current voluntary practice mandatory
and is therefore not expected to result in any considerable additional burden.
- The possibilities for collection of traffic data pursuant to Section 100g of the Code of
Criminal Procedure(–Draft) are extended as a result of the transposal of the Directive
69
on “retention” effected in Article 2. This is expected to result in an increase in informa-
tion requests received by the telecommunications undertakings pursuant to Section
100g of the Code of Criminal Procedure from the law enforcement agencies, these in-
formation requests being subject to the reimbursement obligation pursuant to Section
23 of the Court Payment and Reimbursement Act [German designation: JVEG]. The
extent to which the total the reimbursement payments to be paid from the budgets of
the Bund and Länder will increase cannot be reliably estimated, as it is not known how
many corresponding requests are currently not made due to the absence of a storage
obligation that would give any chance of the request being successful. If is assumed
that there will be an additional 10 000 information requests per year, the hourly rate of
a maximum of EUR 17 laid down in Section 23 of the Court Payment and Reimburse-
ment Act and an assumed processing time of one hour per information request will re-
sult in expenditure of EUR 170 000 per year, which, in view of the fact that criminal
prosecution is primarily the responsibility of the Länder, will predominantly need to be
financed from the budgets of the Länder. On the other hand, there will be a consider-
able increase in efficiency, since, on account of the obligation to store traffic data con-
tained in Section 113a of the Telecommunications Act–Draft, there will be fewer unsuc-
cessful information requests and as a result of successful information requests, alterna-
tive methods of investigation, which are usually more expensive, can be avoided.
- Additional expenditure will result from the collection of statistics provided for in Section
100g(4) of the Code of Criminal Procedure–Draft. This (no more precisely quantifiable)
additional expenditure is unavoidable on account of the requirements of Article 10 of
Directive 2006/24/EC.
- The marking obligations regulated in Section 101(3) of the Code of Criminal Proce-
dure–Draft are unavoidable on account of constitutional requirements, and may be met
by means of simple identification marks (e.g. stamps). Often no special mark is re-
quired, as, on account of current practice, it already states in the data or documents
that are required to be marked, which in many cases are already kept in special fold-
ers, that they are derived from measures pursuant to Section 101(1) of the Code of
Criminal Procedure – Draft. This is frequently the case with regard to evaluation re-
cords from telecommunications monitoring measures.
- The meeting of the notification obligations regulated in Section 101(4) to (8) of the
Code of Criminal Procedure-Draft, implementing the case law of the Federal Constitu-
tional Court, shall not have any effect on expenditure:
70
On one hand, the system of measures that the obligations to notify give rise to is in-
deed expanded (extension of the notification obligations to measures pursuant to Sec-
tions 100h, 100i, 110a, 163e of the Code of Criminal Procedure-Draft), but on the other
hand it is also reduced (elimination of the obligation to notify in the case of measures
pursuant to Section 81e of the Code of Criminal Procedure). However, in accordance
with the current Section 101(1) of the Code of Criminal Procedure, – all – parties in-
volved in the measures referred to therein shall be notified. In the case of telecommu-
nications monitoring, for example, this also includes all those persons with whom the
monitored suspect has communicated using telecommunications. Whether or not the
intelligence obtained has been used is immaterial (cf. Meyer-Goßner, loc.cit., Sec-
tion 101 margin number 2), as the protective purpose of the notification obligations is to
grant the parties involved, whose prior consultation would jeopardise, if not completely
put paid to, the purpose of the measure, the retrospective right to a hearing (Section
33(4) sentence 1 of the Code of Criminal Procedure) in order to give them the opportu-
nity to defend themselves against this intervention (BGHSt [Criminal case reference at
the Federal Supreme Court of Justice] 36, 305, 311, with supporting documents).
Therefore, although the new regulation includes this obligation to notify all parties in-
volved in Section 101(4) sentence 1 point 3 of the Code of Criminal Procedure-Draft, it
also for the first time regulates (including for the other covert investigative measures re-
ferred to in Section 101(4) sentence 1 of the Code of Criminal Procedure-Draft) in Sec-
tion 101(4) sentences 3 to 5 of the Code of Criminal Procedure-Draft, within the bounds
of constitutional law, extensive and thus, for the industry, clear exceptions to this, which
entail relaxations, so that, compared with the previous legislation, if not a considerable
reduction in costs there will at least be a neutral situation with regard to costs.
If, on the other hand, the industry should point out that the new regulation in Section
101(4) of the Code of Criminal Procedure-Draft will give rise to considerable additional
costs for notification, in particular in the case of telecommunications monitoring meas-
ures, this estimate will obviously be based on the findings, which are also confirmed in
the study by Albrecht/Dorsch/Krüpe, indicating that the industry does not always take
account of the existing notification obligations in the manner required under current
law. Any future additional costs will not therefore be a result of the new statutory regu-
lation, but of an obviously not infrequent unsatisfactory implementation of the existing
statutory requirements.
- The ex post facto legal protection provided for in Section 101(9) of the Code of Criminal
Procedure makes mandatory the case law of the Federal Constitutional Court,
according to which the party affected by an intervention-intensive covert investigative
71
measure shall be granted the right to a hearing by way of ex post facto legal protection.
The new regulation constitutes a clarification, which will counteract the uncertainty that
is met repeatedly in judicial case law with regard to the requirement for legal protection.
Experience of the regulation relating to ex post facto legal protection, which has been
in existence since 1998, in the case of acoustic monitoring of private premises leads to
the expectation that the persons affected will make only very sparing use of this oppor-
tunity. As yet, the industry has reported no cases in which a person affected by the
acoustic monitoring of private premises has taken advantage of the possibility of ex
post facto legal protection.
- The possibility provided for in Section 110(3) of the Code of Criminal Procedure-Draft
for an open online search will make the investigations more efficient and will therefore
save on (no more precisely quantifiable) additional costs for alternative – frequently
more expensive – methods of investigation.
- The concentration of the local competence of the investigating court provided for in
Section 162(1) of the Code of Criminal Procedure-Draft will promote the specialisation
of the court and therefore help to make the fulfilment of tasks more efficient and will
thus result in a no more precisely quantifiable reduction in costs.
Overall, the individual additional and reduced costs are expected to balance each other out,
so that implementation of the revised regulations relating to covert investigative measures in
the Code of Criminal Procedure by the law enforcement agencies and courts is expected on
the whole to be neutral in terms of costs.
2.
Cost-related effects for other public bodies in the Bund and Länder
The amendment to the provisions of the Telecommunications Act in Article 2 will give rise to
additional enforcement costs for the Federal Network Agency, separated into physical in-
vestments and personnel costs, which are estimated by the Federal Ministry of Economics
and Technology to be as follows: In the area of the automated information procedure in ac-
cordance with Section 112 of the Telecommunications Act, investment costs in the region of
EUR 1 million are expected for expanding the system. At the same time, the personnel re-
quirements for the qualified planning and updating of the project are expected to be two
clerical posts and two ancillary clerical posts. This is a result of the extension of the retrieval
options to include e-mail addresses and the related five-fold increase in the associated un-
72
dertakings. Finally, as a result of the obligation to store traffic data there is an increased re-
quirement for control within the framework of the supervision under Section 115 of the Tele-
communications Act, including the application of new actions subject to administrative fines,
which creates the need for two executive posts with legal training and two clerical posts. Per-
sonnel costs amounting to a total of around EUR 640 000 per year are expected as a conse-
quence.
In the case of other public bodies, there will be direct and indirect savings (which cannot be
determined more precisely), as a result of the increased efficiency of investigative facilities
within criminal proceedings, therefore enabling an improvement in the combating of crime,
which results in high costs to society as a whole.
3.
Cost-related effects on municipalities
It is not expected to affect the municipalities’ budgets.
4.
Budget expenditure excluding enforcement costs
No budget expenditure, excluding enforcement costs, are expected.
5.
Cost-related effects for trade and industry
For undertakings affected by the obligation to store traffic data, additional costs will arise as a
result of their fulfilment of the storage obligation in Sections 111 and 113a of the Telecom-
munications Act-Draft. It has not been possible to quantify the extent to which this is the
case, despite several requests for statements from the telecommunications industry and in-
tensive discussions in this regard. One plausible explanation given was essentially that the
amount of the additional costs differ depending on the previous – widely differing and subject
to change – handling of the storage of data and the size of the undertaking, and can amount
to between a few thousand and several hundred thousand euros. However, the telecommu-
nications industry has not submitted any specific and individually comprehensible calcula-
73
tions (as regards the problem of incomprehensible cost information in connection with the
necessary reorganisation of the storage and deletion of traffic data relating to flat-rate tariffs,
see also the Decision of the Federal Supreme Court of 26 October 2006, III ZR 40/06, p. 4 et
seq). In some cases, the necessary reorganisation in the telecommunications industry, which
is characterised by constant technical change, will be carried out within the context of techni-
cal adaptations that occur on a regular basis anyway, and consequently this can reduce the
costs resulting from the storage obligation alone.
In view of the findings set out above, it is not possible to definitively quantify in any more de-
tail the total additional costs incurred by the telecommunications industry, even in the form of
an estimate.
For smaller businesses, the raising of the 'marginal limit' from 1000 to 10 000 subscribers or
other authorised users laid down in Section 3(2)(5) of the Draft Telecommunications Monitor-
ing Order will result in a significant reduction in costs. Furthermore, the businesses con-
cerned will have their costs reduced to a certain extent by the fact that the regulations on
storage obligations, which also include incoming calls, make the incoming call search under
Section 100g(2) of the Code of Criminal Procedure, which was complicated to implement in
practice, largely unnecessary and by the fact that the obligation previously laid down in Sec-
tion 110(8) of the Telecommunications Act for businesses to gather and transmit statistic
regarding orders under Sections 100a and 100b of the Code of Criminal Procedure has been
deleted, because these tasks will now be performed by public bodies (law enforcement
agencies) on the basis of the regulations in Section 100b(5) and (6) of the Code of Criminal
Procedure.
While the costs for the provision of traffic data are reimbursed under Section 23(1)(2) of the
Court Payment and Reimbursement Act [German designation: JVEG], the draft does not
provide for the reimbursement of the investment required to meet the storage obligations or
of any increase in operating costs. It can therefore be expected that the businesses con-
cerned will essentially include those costs for which no compensation is envisaged in their
prices, and thus pass them on to their customers, insofar as the telecommunications market,
which is affected by the storage obligation at EU level, allows this. The retail price index in
the area of telecommunications services may therefore increase slightly.
No costs over and above this will be incurred by the business sector, particularly by medium-
sized undertakings. The Order is not therefore expected to have any further impact on indi-
vidual prices or the general price index, in particular the retail price index.
74
6.
Future re-regulation of the reimbursement obligations
The draft does not contain any new regulations on the reimbursement of telecommunications
businesses. A new regulation in this area, and the issue of its location, are currently the sub-
ject of a special legislative procedure, which is being prepared in parallel and will be imple-
mented as a matter of priority. The corresponding draft Act will be submitted to Parliament for
resolution as soon as possible.
75
B.
Regarding the individual provisions
Re Article 1 (Amendment of the Code of Criminal Procedure)
Re point 1 (Section 53b of the Code of Criminal Procedure-Draft)
The new provision being introduced institutes a harmonised system to take account of the
interests outside of interrogation situations protected by the entitlements on the part of the
keeper of professional secrets to refuse to testify (Sections 53, 53a of the Code of Criminal
Procedure). With regard to its basic design, reference is made to what is stated above in the
general part of the explanatory statement (under A. III. 3).
Re paragraph 1
Paragraph 1 – coupled with obligations relating to erasure and documentation – constitutes a
ban on the collection and exploitation of evidence for information covered by the entitlement
to refuse to testify on the part of the clergy (in their capacity as pastors), defence counsels
and parliamentarians (Section 53(1) sentence 1 points 1, 2 and 4 Code of Criminal Proce-
dure). In so doing, this regulation adopts the decision already included in legislation under
Section 100h(2) of the Code of Criminal Procedure to grant special release to these occupa-
tional groups, in the light of the entitlement granted to them to refuse to testify, from investi-
gative measures by the state. The existing special regulation under Section 100h(2) of the
Code of Criminal Procedure thus becomes superfluous. The associated protection of the
confidentiality of communication with these keepers of professional secrets – subject to the
regulation on involvement under paragraph 4, also contained in Section 97(2) sentence 3,
Section 100c(6) sentence 3 and Section 100h(2) sentence 2 – is absolute and is conse-
quently not dependent on considerations of proportionality in individual cases. It is thus not
permissible for communication with a defence counsel, a pastor or a parliamentarian, insofar
as the said parties are acting within the sphere of work from which their respective entitle-
ments to refuse to testify obtain, to be purposefully impaired by investigative measures. This
absolute level of protection is provided under constitutional law:
Ensuring adequate defence rights is of great importance for the constitutionality of criminal
proceedings. The opportunity of engaging the assistance of a criminal defence counsel en-
sures the proper preservation of the rights of the accused and plays a part in allowing the
latter not merely to become the object of criminal proceedings. In this context, the conversa-
76
tion with the defence counsel fulfils an important function in the preservation of human dignity
(BVerfGE [Collected Decisions of the Federal Constitutional Court] 109, 279, 322). Estab-
lished case law thus provides that contact with the defence counsel must therefore not be
impaired in any way that might harm the chances of the accused’s defence; the same applies
where the accused personally provide documentation for their own defence (argumentation
from Section 148 Code of Criminal Procedure, cf. Federal Constitutional Court, 2 BvR [Con-
stitutional appeal reference at the Federal Constitutional Court] 2248/00 of 30 January 2002,
NJW [Neue Juristische Wochenschrift legal periodical] 2002, 1410 et seq.; BGHSt [Criminal
case reference at the Federal Court of Justice] 38, 372 et seq.; 42, 15, 18 et seq.; 42, 170 et
seq.; 44, 46, 48 et seq.; BGHR [Federal Court of Justice Reports] Code of Criminal Proce-
dure Section 97 Defence documentation 1, 2; BGH [Federal Court of Justice], 1 BJs 6/71,
StB 34/73 of 13 August 1973, NJW [Neue Juristische Wochenschrift] 1973, 2035).
The same applies to the clergy in their capacity as pastors. Dialogue with a pastor must be
regarded as falling within the core area of private lifestyles to which the state is simply denied
access and thus comprehensive protection from the state getting to know what is said is re-
quired (BVerfGE [Collected Decisions of the Federal Constitutional Court] 109, 279, 322).
The entitlement to refuse to testify on the part of parliamentarians and the corresponding
prohibition on seizure is already contained in Article 47 of the Basic Law and the correspond-
ing regulations of the constitutions of the German Länder (e.g. Article 49(1) of the North
Rhine-Westphalian constitution [German abbreviation: VerfNW] and protects the mandate-
based relationship of trust between the parliamentarian and third parties. This protection,
which is granted under constitutional law such that it is not dependent on considerations of
proportionality in individual cases, has the aim of strengthening the free mandate and, at the
same time, unhindered parliamentary work and the functionality of popular representation
that stems from this. The immunity regulations in the Federal and Länder constitutions also
serve to provide this protection (cf., for example, Article 46 of the Basic Law). It would seem
proper to supplement the already existing - ultimately declaratory – sub-constitutional law
regulations of Section 53(1) sentence 1 point 4 and Section 97(3) of the Code of Criminal
Procedure on entitlement to refuse to testify and on prohibition on seizure in the case of par-
liamentarians by means of the comprehensive prohibition on the collection and exploitation of
evidence under Section 53b(1) of the Code of Criminal Procedure-Draft and thus to provide
comprehensive protection to information confided in a parliamentarian (as Rudolphi has al-
ready pointed out in respect of telecommunications monitoring on the basis of current law, in:
Systematischer Kommentar zur StPO [Systematic commentary on the Code of Criminal Pro-
cedure], Section 100a, margin number 20).
77
Sentence 1 thus lays down that investigative measures are impermissible if they are directed
against a member of the clergy, a defence counsel or a parliamentarian and, in so doing, it
could be anticipated that they would bring to light information about which the said parties
would be entitled to refuse to testify. However, measures directed against other parties –
meaning against a suspect or a third party – remain permissible, even when it is not possible
to rule out the possibility of communication with the aforementioned keepers of professional
secrets touching on subjects covered by an entitlement to refuse to testify - or even when
this is in fact to be anticipated.
The new regulation counteracts this last situation, in which the keeper of professional secrets
is accidentally affected, through the ban on the exploitation of information obtained from the
keeper of professional secrets and about which the said party would be entitled to refuse to
testify, which ban is included in sentence 5 by means of the reference therein to sentence 2.
In particular individual cases and on application of the principle of proportionality, this ban on
the exploitation of information may give rise to an obligation to suspend the measure against
a third party, where, for example, what is in question is the real-time monitoring, on an ex-
ceptional basis, of telecommunications and, in the course thereof, a conversation is recog-
nised as a conversation with the defence counsel. In this case, it would not be permissible to
collect any information that it would not be allowed to exploit under the ban on the exploita-
tion of information set out in sentence 2. There is, however, no duty to collect information in
real time arising from this and a duty of that nature would not be practicable (see explanation
of Section 100a(4) Code of Criminal Procedure-Draft below). This ban on the exploitation of
information ensures the confidentiality of communications with the said keepers of profes-
sional secrets within the framework of the entitlements to refuse to testify granted to them. At
the same time, it ensures adherence to the ban on information collection pursuant to sen-
tence 1. Since a ban on the exploitation of information does not necessarily follow from a ban
on the collection of information - the former, rather, involving a conscious self-limitation on
the part of the state in the investigation of the truth in criminal proceedings and potentially
involving a considerable obstacle to the reaching of a correct verdict - the ban on the exploi-
tation of information had to be expressly set out in the text of the Act.
The ban on the exploitation of information – as is the case for the entire provision of Section
53b of the Code of Criminal Procedure-Draft – clearly does not apply to the questioning of
the keeper of professional secrets as a witness. In this case, what is regulated under Section
53 of the Code of Criminal Procedure (Entitlement to refuse to testify) in fact directly corre-
sponds to the exceptions set out in paragraph 2 of the same section.
78
The ban on the exploitation of information pursuant to sentence 2 is backed up by the obliga-
tion under sentence 3 to destroy immediately information obtained by means of an impermis-
sible intervention. This prevents the potential perpetuation of the harm caused by the ban on
the collection of information pursuant to sentence 1 and ensures adherence to the ban on the
exploitation of information pursuant to sentence 2. On the issue of which party is responsible
for destroying the information, reference is made to the explanatory comments to Section
100a(4) sentence 3 of the Code of Criminal Procedure-Draft.
According to sentence 4, the actual obtaining of information falling within the ban on the col-
lection of information pursuant to sentence 1 and the destruction of records about such in-
formation must be documented. This ensures compliance with the obligation to destroy in-
formation and records but is primarily designed to facilitate subsequent demonstration that
these requirements were met as part of any claim for legal protection on the part of the par-
ties involved.
Under sentence 5, the ban on the exploitation of information pursuant to sentence 2, the re-
quirement to destroy information and records pursuant to sentence 3 and the documentation
obligation pursuant to sentence 4 shall apply mutatis mutandis where, by means of an inves-
tigative measure that is not directed against a keeper of professional secrets as referred to in
Section 53(1) sentence 1 points 1, 2 and 4, information has nevertheless been obtained from
such keepers of professional secrets about which they would be entitled to refuse to testify,
cf., in this regard, the remarks above in connection with the explanatory notes to sentence 1.
Consideration was further given to having a regulation on the model of Section 100c(7) of the
Code of Criminal Procedure, according to which it is a requirement to immediately seek a
court decision on whether information may be exploited where there are doubts about
whether non-exploitable information had been obtained. From practical experience, however,
it has been pointed out that, in the light of the decades of experience in the use of these
regulations, there has been no need for the assistance that such a measure is intended to
provide in determining the scope of the entitlements to refuse to testify pursuant to Section
53 of the Code of Criminal Procedure. In addition, there are significant system-related diffi-
culties with reaching conclusive decisions during the actual course of the investigative proc-
ess about whether information obtained may or may not be used. This is because evaluating
whether information may or may not be used is the responsibility, under German criminal
law, of the trial court – which court it is often impossible to determine at the investigative
process stage – the decision of that court additionally being subject to supervision by higher
79
or the highest ranking courts. In this way it is possible to best ensure, in the interests of legal
certainty, the desirable uniform design and application of the regulations.
Re paragraph 2
Paragraph 2 contains a ban on the collection and exploitation of information, which ban is
relative, designed around proportionality considerations and conventionally recognised and
in use in the case law as part of what is known as the tenet of balance (cf. Meyer-Gossner,
loc. cit., introduction, margin number 55a, with supporting documents) and which, in individ-
ual cases, may be brought to bear on keepers of professional secrets not covered by para-
graph 1 to whom the Act grants an entitlement to refuse to testify. Specifically, sentence 1
covers the counselling and medical occupations referred to in Section 53(1) sentence 1
points 3 to 3b of the Code of Criminal Procedure and the media personnel referred to in Sec-
tion 53(1) sentence 1 point 5 of the said Code. As part of the examination of proportionality
required by sentence 1 the primary public – however, depending on the circumstances of the
case in question (interests of the victim), also based on individuals’ considerations – interest
in having an effective administration of criminal justice which aims to investigate the material
truth and reach a correct verdict must be balanced against the public interest in the tasks
undertaken by the persons entitled to refuse to testify and the individual interest in keeping
confidential that which is confided in or which has come to the attention of a keeper of pro-
fessional secrets. The special consideration of these interests as part of the examination of
proportionality is justified on the grounds now set out below.
There is high public interest in the functions performed by the keepers of professional secrets
referred to in Section 53(1) sentence 1 points 3 to 3b of the Code of Criminal Procedure from
the field of counselling and medical occupations. These functions presuppose by their very
nature the existence of a relationship of trust between the keeper of professional secrets and
the party engaging the services of the keeper of professional secrets. The trust placed in the
keeper of professional secrets and the entitlement on the part of the person contacting the
keeper of professional secrets to self-determination in terms of their information and the prin-
ciple that no accused party is obliged to play an active role in their own conviction tend to
have a restraining effect on the collection of information from the sphere protected by the
keeper of professional secrets’ entitlement to refuse to testify. Since the functions of the
counselling and medical occupations also have a high social value in a social state under the
rule of law, criminal prosecution measures that could have a negative impact on the said
functions can only be applied if proportionality is strictly maintained. Sentence 1 ensures this
by expressly specifying that these factors are to be given special attention in the examination
80
of the proportionality of a measure, whereby such an examination of proportionality is always
required to be carried out. Depending on the result of the examination of proportionality, the
measure at hand in the specific case may be permissible in its full scope or else – where
proportionality was either partly or entirely lacking – there arises a necessity to limit or omit
the measure; this latter case being expressly spelled out by sentence 2.
In the case of conversations with a doctor in particular, the necessity of omitting or limiting
the investigative measure will often arise; this usually applies where the aim of the said
measure is to reap information from such conversations. Information from the doctor about
medical history, diagnoses and therapeutic treatments and thus also conversation with the
doctor are protected under the established case law of the Federal Constitutional Court
within the auspices of the general personal rights under the Basic Law, with the result that
State is strictly denied access to information of this nature (cf. simply Federal Constitutional
Court, 2 BvR [Constitutional appeal reference at the Federal Constitutional Court] 1349/05 of
6 June 2006, paragraph 32, and Federal Constitutional Court, 2 BvR 28/71 of 25 June 1974,
paragraph 24 et seq.). In light of this it is to be assumed that, during the examination of pro-
portionality envisaged under sentence 1, a preponderance of individual interests meriting
protection is to be expected, leading to an investigative measure becoming impermissible
where the information in question is from the core area of private lifestyles or is at least es-
pecially sensitive information close to the core area given out in a doctor-patient conversa-
tion.
This model of regulation under paragraph 2 also covers the media personnel referred to in
Section 53(1) sentence 1 point 5 of the Code of Criminal Procedure. In the light of the high
level of importance attached to press and radio freedom, the constitution grants the activities
of such media personnel a special, and institutional, form of protection (BVerfGE [Collected
Decisions of the Federal Constitutional Court] 20, 162, 175; 77, 65, 74; 107, 299, 332; 109,
279, 323 et seq.; Federal Constitutional Court, 2 BvR [Constitutional appeal reference at the
Federal Constitutional Court] 1112/81 of 12 March 1982, NStZ [Neue Zeitschrift für Strafrecht
criminal law periodical] 1982, 253 et seq.; Federal Constitutional Court, 1 BvR 77/96 of 22
August 2000, NStZ 2001, 43) that is likewise to be regarded as a measure during the exami-
nation of proportionality. A general prioritisation of the interests of journalists meriting protec-
tion ahead of the public interest in criminal prosecution, on the other hand, cannot be justified
under constitutional law, as the Federal Constitutional Court has expressly determined
(BVerfGE [Collected Decisions of the Federal Constitutional Court] 107, 299, 332). In par-
ticular, the entitlements on the part of media personnel to refuse to testify are without any
81
direct reference to the core area of private lifestyles (BVerfGE [Collected Decisions of the
Federal Constitutional Court] 109, 279, 323).
Sentence 3 renders the exploitation of information subject to the entitlement of the occupa-
tional groups referred to in sentence 1 to refuse to testify dependent on an examination of
proportionality in each individual case. In principle, this means that, in respect of whether or
not such information may be exploited, the same criteria apply as have to be considered un-
der sentence 1 in respect of whether or not the collection of the corresponding information is
permissible. This leads to extensive synchronisation in the assessment of whether or not
information may be collected and exploited. It should be noted, however, that such examina-
tions often need to be undertaken at different points in time with the result that, due to
changes in the circumstances on the ground in the meantime, the examination of whether
information collected may be exploited may differ from the earlier assessment of whether an
investigative measure is permissible. If, for example, the collection of information subject to
the entitlement to refuse to testify was originally justified in the light of what was initially as-
sumed to be a serious criminal offence, but it becomes apparent in the course of proceed-
ings that at worst a minor offence was committed, a ban on the exploitation of information
may arise irrespective of the fact that the collection undertaken was lawful. The likewise re-
verse applies: If collection was initially deemed disproportionate in the light of what was at
that stage to be assumed to be a criminal offence of only minor severity but it later turns out
that the offence in question is very much a serious criminal offence, the exploitation of infor-
mation collected – initially against the law – may nevertheless be permissible. It is also pos-
sible for a suspicion of involvement in the crime being investigated on the part of the keeper
of professional secrets to arise from the initially impermissible collection of information, with
the result that – under the preconditions set out in paragraph 4 – the protection afforded un-
der paragraph 2 no longer applies, meaning that information gained may be exploited; the
same also applies to cases that fall within the scope of paragraph 1.
It should be noted in this context that the regulation on balancing interests under paragraph 2
and the absolute regulation on protection under paragraph 1 only take effect within the scope
of the relevant entitlement to refuse to testify in each case and that, as a result of this, there
may be varying assessments in relation to whether or not it is permissible to collect informa-
tion and to exploit information collected. Where, for example, in an individual case, an effec-
tive release from the obligation to secrecy is issued following the initially impermissible col-
lection of information (cf. Section 53(2) sentence 1 of the Code of Criminal Procedure), there
is no entitlement to refuse to testify and thus no longer any basis for any ban on the exploita-
tion of information.
82
On the other hand, the requirement under paragraph 2 to balance interests also applies
where information from the law enforcement agencies protected by an entitlement to refuse
to testify – such as from the person entitled to refuse to testify – is voluntarily handed over.
This is because the interest, for instance, of the accused, which merits protection, in the
keeping secret of information that they have confided in a keeper of professional secrets enti-
tled to refuse to testify is not eliminated in this way, something also rejected under the crimi-
nal law evaluation of Section 203 of the Penal Code (cf. Rudolphi, loc. cit., Section 97, mar-
gin numbers 18, 29).
Re paragraph 3
Paragraph 3 extends the regulations under paragraphs 1 and 2 to the relevant professional
assistants in each case, on the pattern of Section 97(4) of the Code of Criminal Procedure.
Re paragraph 4
In accordance with the regulations on involvement under Section 97(2) sentence 3 and Sec-
tion 100c(6) sentence 3 of the Code of Criminal Procedure, the special protection provided
under paragraphs 1 to 3 of the relationship with a keeper of professional secrets is ended
under paragraph 4 where the keeper of professional secrets is suspected of being involved in
the criminal act or in assisting offenders, obstructing criminal justice or handling stolen goods
(on the further need to establish an investigative process see below). This is because the
protection of the affected relationships of trust or of the institutions is not, in itself, supposed
to lead to the establishment of areas of secrecy in which criminal behaviour is simply taken
out of reach of investigation by the state.
In contrast to the regulations on involvement that have existed up to now, paragraph 4 sen-
tence 1 requires an investigative process to have already been instigated against the keeper
of professional secrets on the basis of suspicion of committing a criminal act. This takes ac-
count of the legal policy objectives of informing the investigational authorities even better
than hitherto of the interests protected by the entitlements to refuse to testify on the part of
the keepers of professional secrets and of ruling out circumvention of the regulations on pro-
tection solely on the basis of mere supposition. This is not a case of failing to realise that
establishing an investigative process is fundamentally not bound to any one form and also
occurs where the public prosecutor puts in place measures against a party suspected of a
criminal offence that identifiably aim to proceed against the latter, such as filing a petition to
83
question the said party as an accused pursuant to Section 162 of the Code of Criminal Pro-
cedure.
This protection – likewise taking account of the legal policy objective – is also strengthened
by sentence 2 in respect of media personnel in crimes where a petition or authorisation is
necessary for prosecution, to the effect that what is regulated under sentence 1, in respect of
members of the media who are under suspicion of being involved in the criminal offence,
may only be applied once any necessary petition to prosecute has been filed or any neces-
sary authorisation granted.
Re paragraph 5
Paragraph 5 makes clear that the more specialist regulations of Sections 97 and 100c(6) of
the Code of Criminal Procedure override what has now been regulated in Section 53b of the
Code of Criminal Procedure-Draft. Only where these more specialist provisions do not regu-
late a given situation – such as Section 97 of the Code of Criminal Procedure with regard to
whether or not objects not permitted to be seized may be exploited – is Section 53b of the
Code of Criminal Procedure-Draft to apply instead.
Re point 2 (Section 58a(2) of the Code of Criminal Procedure-Draft)
This is a consequential amendment as a result of the repeal of Section 100b(6), the regula-
tory content of which (on the deletion of data no longer required) is now to be found in Sec-
tion 101(10) of the Code of Criminal Procedure-Draft.
Re point 3 (Section 97 of the Code of Criminal Procedure-Draft)
Re point a (paragraph 2)
It is being clarified in sentence 1 that the “health card” referred to is the electronic health
card.
The new sentence 3 adopts the regulation on involvement contained in Section 53b(4) sen-
tence 1 of the Code of Criminal Procedure-Draft. This means that the regulation on involve-
ment under Section 97(2) of the Code of Criminal Procedure will also only take effect once a
84
process of investigation has been instigated into the keeper of professional secrets on
grounds of suspected involvement.
Re point b (paragraph 5)
The addition to paragraph 5(2) adopts the regulation contained in Section 53b(4) sentence 2
of the Code of Criminal Procedure and applying to members of the media, according to
which the regulation on involvement for crimes where petition or authorisation are necessary
for prosecution only applies when the necessary petition has been filed or the authorisation
granted (cf. explanatory notes to Section 53b(4) Code of Criminal Procedure-Draft).
Re point 4 (Section 98 of the Code of Criminal Procedure-Draft)
The replacement of the words Richter [‘(male) judge’] and richterlich [‘judicial’, pertaining to a
Richter (male judge)] in paragraphs 1 to 3 is designed to ensure the use of gender-neutral
legal language, thereby taking account of Section 1(2) of the Federal Equal Opportunities Act
[German abbreviation: BGleiG]).
The other amendments in paragraph 2 sentences 3 to 6 bring the regulations set out therein
on court competence in decisions on seizure into line with the new wording of the regulation
of general competence under Section 162(1) of the Code of Criminal Procedure-Draft (Con-
centration of the competence of the investigating court at the jurisdiction of the public prose-
cutor).
Re point 5 (Section 98b of the Code of Criminal Procedure-Draft)
Consequential and editorial amendments are being undertaken in Section 98b of the Code of
Criminal Procedure as follows:
Paragraphs 1 and 2 are being adapted in order to ensure the use of gender-neutral lan-
guage (Section 1(2) of the Federal Equal Opportunities Act.
The regulation on use set out in paragraph 3 sentence 3 is being deleted because what
was regulated thereby is now encompassed by Section 477(2) sentence 2 of the Code of
Criminal Procedure-Draft. This therefore does not involve any change of content.
85
Paragraph 4 sentence 1 is being deleted. The obligation to notify that was hitherto con-
tained in the said sentence by means of reference to Section 163d(5) of the Code of
Criminal Procedure now applies pursuant to Section 101(1), (4) et seq. of the Code of
Criminal Procedure-Draft. At the same time, Section 101(3) of the Code of Criminal Pro-
cedure-Draft also establishes an obligation to label data collected as a result of a measure
pursuant to Section 98a of the Code of Criminal Procedure. This obligation to label, which
is intended to ensure compliance with the restrictive regulations on use under Section
477(2) sentences 2 and 3 of the Code of Criminal Procedure-Draft, accommodates stipu-
lations made by the Federal Constitutional Court (cf. BVerfGE [Collected Decisions of the
Federal Constitutional Court] 100, 313, 360 et seq.; 109, 279, 374, 379 et seq. and the
explanatory notes to Section 101(3) of the Code of Criminal Procedure-Draft).
Re point 6 (Section 100 of the Code of Criminal Procedure – Draft)
The provision’s wording is merely revised and amplified:
In paragraphs 1 to 4, the words “the judge” [“der Richter”] are replaced by “the court” [“das
Gericht”] and “judicial” [“richterlich”] by “court” [“gerichtlich”] in order to take account of
Section 1 (2) of the Federal Equality Act (German designation: BGleiG). The text is also
clarified by replacing the term “articles” [“Gegenstände”] by “postal items” [“Postsendun-
gen”] in paragraphs 3 and 4.
New paragraphs 5 and 6 introduce provisions that were previously contained in Section
101 (2) and (3) of the Code of Criminal Procedure, but which logically belong in Sections
99 and 100 of the Code of Criminal Procedure (forwarding of originals or copies of postal
items). At the same time, the new paragraph 5 brings the wording into line with the new
paragraph 6 (formerly Section 101 (3) of the Code of Criminal Procedure), so that postal
items the opening of which has not been ordered must be forwarded to the intended re-
cipient (formerly: “party”) without delay.
The view taken in parts of the literature on jurisprudence, that there is a contradiction be-
tween the contents of the terms of Sections 99 and 100 and those of Sections 100a and
100b of the Code of Criminal Procedure requiring the creation of a uniform provision for the
surveillance of “distance communication” (cf. Valerius, Zur Bedeutung des § 99 StPO im
Zeitalter des Internets [The Importance of Section 99 of the Code of Criminal Procedure in
86
the Age of the Internet] in: Hilgendorf [ed.], Informationsstrafrecht und Rechtsinformatik
[Criminal Law of Information and Legal Informatics], 2004, p. 119, 143, 148 et seq.; Böcken-
förde, loc. cit., p. 382 et seq., 456 et seq.; Bär, loc. cit., p. 295 et seq.), is not accepted. It is
of course correct that both the secrecy of letters and mail and the secrecy of telecommunica-
tions are uniformly protected by Article 10 of the Basic Law and that conventional correspon-
dence and postal services have to a large extent been replaced by modern forms of tele-
communications. There are, however, fundamental structural differences between the sur-
veillance of mail on the one hand and of telecommunications on the other, which make dif-
ferent statutory provisions appear necessary. The immediacy, quantity and availability of the
data obtained through the monitoring of telecommunications traffic and its ease of duplica-
tion, bringing a risk of going further than the initial intervention, make it essentially different
from postal items and it requires special protection. Separate safeguards for the confiscation
of postal items, which are tailored to the measure but which cannot automatically be applied
to telecommunications monitoring, are contained in Section 100 (3) and (4) and Section 101
(2) and (3) of the Code of Criminal Procedure, and now in Section 100 (5) and (6) of the
Code of Criminal Procedure – Draft. Moreover, owing to the large and still increasing volume
of telecommunications and the associated continuing increase in the number of telecommu-
nications monitoring measures on the one hand and the comparatively infrequent use made
of the confiscation of postal items on the other, the conditions for free telecommunications
(cf. BVerfGE [Decisions of the Federal Constitutional Court] 100, 313, 359) may be particu-
larly jeopardised by telecommunications monitoring measures.
Re Point 7 (Sections 100a and 100b of the Code of Criminal Procedure – Draft)
Because of its usefulness in fighting crime, the frequency of its application and the intensity
of its intervention, the telecommunications monitoring governed by Sections 100a and 100b
of the Code of Criminal Procedure is the starting point for the statutory rules governing pow-
ers of covert investigation in criminal matters.
In the last few years, the number of monitoring orders under both Section 100a and Section
100b of the Code of Criminal Procedure has increased markedly in absolute terms (cf. Fed-
eral Government reports in Bundestag documents 14/2004, p. 5 et seq.; 14/4863, p. 8 et
seq.; 14/7521, p. 5 et seq.; 14/10001, p. 2 et seq.; 15/2107, p. 11 et seq.; 15/4011, p. 5 et
seq.; 15/6009, p. 7 et seq.; 16/2812, p. 11 et seq.). These absolute figures are probably not
very meaningful, however, given the appreciable growth in the German mobile telephone
market and the fact that criminals deliberately use a large number of mobile lines in order to
87
evade monitoring measures. The study by Albecht, Dorsch and Krüpe shows that, bearing in
mind the exponential growth in the market and changing communications behaviour, if you
look at the ratio of monitored lines to the constantly rising number of lines registered, the
monitoring density is actually declining. This suggests that the increase in telecommunica-
tions monitoring reflects the development of the telecommunications market.
The draft seeks to ensure that telecommunications monitoring is deployed purposefully and
with little “spread”. The study referred to above proposes replacing the list of offences in Sec-
tion 100a of the Code of Criminal Procedure by material criteria that will serve to identify in
abstract terms the offences in connection with which telecommunications monitoring will be
admissible (cf. Albrecht/Dorsch/Krüpe, loc. cit., p. 464 et seq.). The draft does not adopt that
approach, but retains the list of such offences in modified form, with checks as to whether
telecommunications monitoring is appropriate, necessary and reasonable. Such checks of all
offences where telecommunications monitoring might be admissible are also rendered desir-
able by the Federal Constitutional Court decision of 27 July 2005, 1 BvR 668/04 (paragraphs
152 et seq., NJW 2005, 2603, 2610 et seq.), which calls for a legislative concept where it will
be clear why every criminal offence appearing in the list has been included. That cannot be
guaranteed by a blanket description of circumstances under which monitoring may be or-
dered that is based solely on material criteria. It therefore seemed necessary to check each
individual offence in particular to see whether it could be successfully investigated by means
of telecommunications monitoring.
The Federal Constitutional Court’s call (cf. BVerfG, 1 BvR 668/04 of 27 July 2005, para-
graphs 160 et seq., NJW 2005, 2603, 2611 et seq.) for the creation of simple statutory safe-
guards also to protect the core area of private life where telecommunications monitoring is
involved is taken into account by Section 100a(4) of the Code of Criminal Procedure – Draft.
The rules governing the permissible duration (Section 100b (1) sentences 3 and 4 of the
Code of Criminal Procedure – Draft) and the necessary content of a monitoring order (Sec-
tion 100b(2) of the Code of Criminal Procedure – Draft) are revised. Provision is also made
for statistical surveys of telecommunications monitoring measures (Section 100(5) and (6) of
the Code of Criminal Procedure – Draft).
Rules required by constitutional law concerning obligations relating to identification, deletion
and notification are found in the general provision of Section 101 of the Code of Criminal
Procedure – Draft.
88
Re Section 101a (1) of the Code of Criminal Procedure - Draft
1. At the beginning of paragraph 1, the formulation “whether or not with the knowledge of
the persons concerned” [“Auch ohne Wissen der Betroffenen“], which – apart from the
phrase “whether or not” [“auch“] – is already used in Section 100c(1) and Sec-
tion 100f(1) of the Code of Criminal Procedure and Section 100h(1) of the Code of
Criminal Procedure - Draft (formerly Section 100f(2) of the Code of Criminal Proce-
dure), highlights the secrecy of the measure as a particular characteristic of its intensity
of intervention. The German word “auch“ [translated “whether or not”] makes clear that
the measure does not become inadmissible if, for example, the person or persons con-
cerned become aware of it. On the other hand, the fact that the parties concerned
know about the measure does not mean that the conditions of Sections 100a and 100b
of the Code of Criminal Procedure no longer have to be complied with. Only if all the
persons affected by the monitoring measure – including the various parties to the
communication – effectively consent to it can it be carried out vis-à-vis the consenting
parties on the basis of the general powers under Sections 161 and 163 of the Code of
Criminal Procedure.
2. In paragraph 1 point 1, the term “serious criminal offence” highlights the relationship of
telecommunications monitoring to other covert investigation methods as regards the in-
tensity of their intervention and the corresponding material prerequisites for ordering
them. While Article 13(3) sentence 1 of the Basic Law speaks of “particularly serious
criminal offences”, which must carry maximum sentences in excess of five years’ im-
prisonment (BVerfGE 109, 279, 343 et seq.), other covert investigation measures must
be occasioned by a “criminal offence of considerable importance”, which may in part be
defined by further criteria, such as the manner in which they are committed (cf. Sec-
tion 98a(1) sentence 1, Section 100f(1) point 2, Section 100g(1) sentence 1, Sec-
tion 100i (2) sentences 2 and 3, Section 110a (1) sentence 1, Section 163e (1) sen-
tence 1 and Section 163f (1) sentence 1 of the Code of Criminal Procedure). The term
“criminal offence of considerable importance” has now been defined quite precisely in
literature and case law (cf. Rieß, GA 2004, 623 et seq. with further references) and
recognised with this understanding by the Federal Constitutional Court (BVerfGE 103,
21, 33 et seq.; 107, 299, 321 et seq.; 110, 33, 65; BVerfG, 2 BvR 1841/00 of 15 March
2001, NJW 2001, 2320, 2321; BVerfG, 2 BvR 483/01 of 20 December 2001, StV 2003,
1 et seq.). A criminal offence of considerable importance must fall at least within the
scope of moderate crime, cause an appreciable disturbance to law and order and be
89
likely to have a considerably detrimental effect on the population’s sense of legal secu-
rity (Schäfer, loc. cit., Section 100g, marginal note13 with further references).
Compared to the particularly serious criminal offences laid down as a criterion in Article
13(3) sentence 1 of the Basic Law and to criminal offences of considerable importance,
the serious criminal offences referred to in Section 100a(1) point 1 of the Code of
Criminal Procedure - Draft occupy an intermediate position. They may be understood
as criminal offences carrying a maximum penalty of at least five years’ imprisonment,
but in some cases also a shorter term of imprisonment where the object of legal protec-
tion is particularly important or there is a particular public interest in the law being en-
forced. A maximum penalty of one year’s imprisonment no longer corresponds to the
concept of serious criminal offence. Statutory mitigations of sentence for less severe
cases are disregarded for the consideration of these penalty ranges (cf. BVerfGE 109,
279, 349).
In accordance with the existing law, it need not of course yet be established that a seri-
ous criminal offence has been committed; on the contrary, this may not be ascertained
until the end of the main criminal proceedings. The suspicion, based on particular facts,
that a serious criminal offence has been committed, criminally attempted or has been
prepared for by means of another criminal offence continues to be sufficient – but also
necessary – for telecommunications monitoring to be ordered.
3. Paragraph 1, point 2, makes clear that the offence justifying monitoring measures –
whether committed, criminally attempted or prepared by another criminal offence that
need not itself be serious – must be serious not only in the abstract, but also in the in-
dividual case. This takes account of the Federal Constitutional Court’s observations in
BVerfGE 107, 299, 322 (re Section 100g of the Code of Criminal Procedure), in
BVerfGE 109, 279, 346 (re Section 100c of the Code of Criminal Procedure) and in 1
BvR 668/04, paragraph No. 154, NJW 2006, 2603, 2611 (on the concept of criminal of-
fence of considerable importance used in the Lower Saxon Public Order Act), accord-
ing to which a particularly serious criminal offence or a criminal offence of considerable
importance must also be particularly serious or of considerable importance in the spe-
cific case if it is to justify intervention in the basic right in question. The purpose of this
is to eliminate cases which, while involving a listed offence, are in the specific case not
sufficiently serious to justify the intervention in telecommunications secrecy that tele-
communications monitoring involves. However, the less serious cases specified in the
Act as grounds for mitigation of sentence must not be ruled out from the outset when
90
this individual assessment is made. For one thing, it will at the investigation stage not
generally be possible to say whether the prerequisites for a less serious case, such as
might have a bearing on the sentence, are present. For another, even a less serious
case may in a particular instance be so serious in its effects, especially as regards the
consequences of the offence for the victim, that the intervention associated with tele-
communications monitoring seems reasonable.
4. Paragraph 1 point 3 contains a qualified subsidiarity clause, which corresponds to the
existing Section 100a sentence 1 of the Code of Criminal Procedure.
Re Section 100a (2) of the Code of Criminal Procedure - Draft
This list of offences justifying telecommunications monitoring measures is revised in the light
of the Federal Constitutional Court judgment of 27 July 2005, 1 BvR 668/04, paragraph No.
152 et seq. (cf. NJW 2005, 2603, 2610 et seq.), of jurisprudential insights (cf.
Albrecht/Dorsch/Krüpe, loc. cit. p. 12 et seq., 462 et seq.) and the requirements of law en-
forcement practice and are harmonised with the list in Section 100c (2) of the Code of Crimi-
nal Procedure.
In addition to the categories of criminal offences of considerable importance and particularly
serious criminal offences, which the Code of Criminal Procedure has contained up until now,
a further category is created, occupying an intermediate position. Thus, higher requirements
are set for ordering measures involving more intensive intervention, according to a graduated
scheme. The draft therefore deletes from the list of offences where monitoring is justified
such criminal offences as are not serious offences in the sense described above or for the
retention of which there is no obvious practical legal need. Offences in the fields of transac-
tion and economic crime and organised crime, which were not previously included, are
added to the list because telecommunications monitoring has proved an effective and effi-
cient means of investigation in these areas in particular (cf. Albrecht/Dorsch/Krüpe, loc. cit.,
p. 355 et seq.), as are offences which it would be perverse not to include since they appear
in the list of offences where acoustic surveillance of domestic premises is permitted (Section
100c (2) of the Code of Criminal Procedure). This is because telecommunications monitoring
has hitherto not been permitted for some crimes that may justify surveillance of domestic
premises even though it constitutes a less intensive intervention in fundamental rights. In
shaping the list of offences where monitoring may be used, the overall aim of the draft is, by
basically allowing the measure, to give the prosecuting authorities the necessary means to
prosecute serious crime that is difficult to investigate, while at the same time not allowing
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telecommunications monitoring, which normally amounts to appreciable intervention in the
rights of the persons concerned, in cases where the importance of the rights to be protected
and the public interest in law enforcement do not appear significant enough for the meas-
ure’s expected benefits to outweigh the infringement of rights it would entail. This takes ac-
count of the principle that the truth must not be sought out “at any price” even in criminal pro-
ceedings (BGHSt [Federal Supreme Court decisions in criminal matters] 14, 358, 365; 17,
337, 348; 31, 304, 309).
The list of offences is also redrafted to make it clearer. In detail:
The criminal offences hitherto contained in Section 100a sentence 1 point 1a of the Code
of Criminal Procedure now appear in paragraph 2 point 1(a); Section 86 of the Criminal
Code and Section 20(1) points 1 to 4 of the Associations Act [German designation: Ver-
einsG] are excluded since they do not constitute serious criminal offences in the above
sense.
The following offences appear in paragraph 2, point 1 (b), (q) and (s) as offences justifying
monitoring measures in order to ensure effective combating of corruption, which is assum-
ing increasing importance:
− bribery of elected representatives pursuant to Section 108e of the Criminal Code;
− conspiracy to restrain competition in tendering pursuant to Section 298 of the Criminal
Code;
− particularly serious cases of giving and receiving bribes in business pursuant to Section
299 of the Criminal Code subject to the conditions set out in Section 300, sentence 2,
thereof;
− giving and receiving bribes pursuant to Sections 332 and 334 of the Criminal Code.
On the one hand, this takes account of the fact that the particularly serious cases of giving
and receiving bribes pursuant to Section 335(1) under the conditions set out in Section
335(2) points 1 to 3 of the Criminal Code are already specified for the more intensive in-
tervention of acoustic surveillance of domestic premises. On the other hand, the crimes of
corruption that are now additionally included are characterised by the fact that they are
typically committed by the perpetrators in secret and are not apparent to outsiders, so that
92
there are not normally any witnesses to observe the acts constituting the offence and re-
port them to the authorities. Successful investigation of such forms of crime requires the
use of covert investigation measures, including telecommunications monitoring, and their
use in practice has been demanded for a long time.
On the other hand, the crimes of accepting advantages pursuant to Section 331 of the
Criminal Code and granting advantages pursuant to Section 333 are not included in the
list because they do not constitute serious criminal offences in the above sense and also
because it is doubtful that telecommunications monitoring is needed given the specific
ways in which they are committed (Section 331(2) and Section 333(2) of the Criminal
Code).
Section 100a(2) point 1 (d) of the Code of Criminal Procedure – Draft takes over the pub-
lic order offences under Sections 129 to 130 of the Criminal Code hitherto contained in
Section 100a, sentence 1, point 1 (c) of the Code of Criminal Procedure. It does not take
over the reference to the criminal offence under Section 95(1) point 8 of the Residence
Act [German designation: AufenthaltsG] which, carrying as it does a penalty of one year’s
imprisonment or a fine, does not satisfy the minimum requirements for a serious criminal
offence.
Section 100a sentence 1 point 1(d) of the Code of Criminal Procedure is deleted because
telecommunications monitoring has no practical relevance for successful investigation of
the crimes referred to therein (incitement to or aiding and abetting of desertion or incite-
ment to insubordination, both committed by non-soldiers) (cf. Albrecht/Dorsch/Krüpe, loc.
cit., p. 463). Moreover, in the light of the range of punishments provide by law, these of-
fences are not serious enough to be included in the list of offences for which monitoring is
permitted. Although the maximum penalty for soldiers is five (Section 16 of the Military
Criminal Code [German designation: WStG]) and three (Section 19 of the Military Criminal
Code) years’ imprisonment respectively, for non-soldiers, who are the only ones referred
to here, the maximum penalty under Section 28 in conjunction with Section 49 (1) of the
Criminal Code is only 4 years and three months or 2 years and 4 months respectively,
while under Section 27 (2) in conjunction with Section 49 (1) of the Criminal Code the
penalty must be further reduced for accomplices.
Section 100a sentence 1 point 1 (e) of the Code of Criminal Procedure is deleted because
telecommunications monitoring has no practical relevance for the crimes against NATO
forces referred to. Except for the years 2001 and 2005, the number of cases in the years
93
1998 to 2005 was zero (cf. Bundestag Documents 16/2812, p. 11 et seq., 15/6009, p. 7 et
seq.; 15/4011, p. 5 et seq.; 15/2107, p. 11 et seq.; 4/10001, p. 2 et seq.; 14/7521, p. 5 et
seq., 14/4863, p. 8 et seq.; 14/2004, p. 5 et seq.) Neither is retention of this provision nec-
essary on the basis of the international law obligation contained in Article 29(1) and (2) of
the Agreement to Supplement the Agreement between the Parties to the North Atlantic
Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the
Federal Republic of Germany of 3 August 1959 (hereinafter: the Supplementary Agree-
ment). Under this, the sending states are entitled to expect that the acts listed in the Sup-
plementary Agreement will incur penalties and as a matter of principle be prosecuted in
accordance with the standard applied to the Federal Armed Forces. Rules to that effect,
which are not affected by the deletion proposed here, were created with the Fourth Crimi-
nal Law Amendment Act of 11 June 1957 (Federal Law Gazette I p. 597).
In line with the list of offences justifying monitoring measures in Section 100c (2) of the
Code of Criminal Procedure, in the field of money and stamp counterfeiting paragraph 2
point 1(e) includes for the first time the commercial or organised falsification of payment
cards, cheques and bills of exchange pursuant to Section 152a (3) of the Criminal Code
and the falsification of payment cards with guarantee function and eurocheque forms pur-
suant to Section 152b(1) to (4) of the Criminal Code. These are all criminal offences falling
within the scope of organised crime and the successful investigation of which is very much
in the public interest (cf. also Bundesrat Document 163/04, p. 9).
Paragraph 2, point 1(f) includes as offences justifying the use of monitoring measures the
less severe cases of serious sexual abuse of children pursuant to Section 176a (4) of the
Criminal Code. In view of the considerable severity of these crimes and their extensive
negative consequences for the victim, there seems to be no justification for excluding
these acts, which carry a penalty of from three months’ to five years or from one year’s to
ten years’ imprisonment. Legislation must therefore seek to afford children greater protec-
tion from sexual interference through effective enforcement of the law. Making telecom-
munications monitoring possible for such offences will contribute to this.
To harmonise with the list of offences in Section 100c of the Code of Criminal Procedure,
Section 177 (2) point 2 and Section 179 (5) point 2 of the Criminal Code are also included.
This avoids discrepancies of classification and takes account of aspects of proportionality:
in suitable cases, telecommunications monitoring may allow the use of acoustic surveil-
lance of domestic premises, with the more intensive intervention that generally entails, to
be avoided.
94
As well as the commercial or organised distribution, acquisition and possession of child
pornography pursuant to Section 184b(3) of the Criminal Code, which is already covered
by Section 100a of the Code of Criminal Procedure, paragraph 2 point 1(g) also includes
the unqualified cases of the distribution, acquisition and possession of child pornography
pursuant to Section 184b(1) and (2) of the Criminal Code. These are also serious criminal
offences and, in view of the widespread use of the Internet, have now become crimes
typically involving telecommunications. Most child pornography is now distributed over
electronic communications media and stored on electronic data carriers (hard disks, serv-
ers). This is shown by the evaluations of the evidence obtained in connection with investi-
gations of offences under Sections 184 et seq. of the Criminal Code.
In addition to the crimes against personal freedom already included, paragraph 2, point 1
(i) also includes cases of
− human trafficking for the purpose of sexual exploitation pursuant to Section 232(1) and
(2) of the Criminal Code,
− human trafficking for the purpose of the exploitation of labour pursuant to Section 233(1)
and (2) of the Criminal Code and
− the promotion of human trafficking pursuant to Section 233a of the Criminal Code.
This means that crimes involving human trafficking will in future all be covered. This is jus-
tified in the light of the severity of these crimes – they are all at least serious, in some
cases particularly serious, criminal offences – and is a practical requirement, since the
successful investigation of these offences, which involve organised crime, relies on tele-
communications monitoring to penetrate the gangs of perpetrators, who act conspiratori-
ally behind closed doors.
Theft accompanied by violence pursuant to Section 252 of the Criminal Code is included
in paragraph 2, point 1(k) in order to avoid discrepancies of classification and problems of
differentiation from the crimes of robbery and blackmail that are already contained in the
list of offences justifying monitoring measures.
By including particularly serious cases and the defining characteristics of fraud, computer
fraud, subsidy fraud and bankruptcy, paragraph 2, point 1 (n), (o) and (q) takes account of
95
the need for more effective prosecution of offences in the area of economic crime. These
are crimes which are typically committed by persons acting in organised structures using
corresponding organisational and communications structures and can therefore normally
be successfully investigated only by using covert investigation measures. Extending tele-
communications monitoring to these crimes will in particular offer the possibility of pene-
trating these organised and generally closed structures. However, given that a large num-
ber of crimes involving fraud are investigated, the extension is limited to particularly seri-
ous cases and to the characteristics defined.
Paragraph 2, point 1(p) brings in for the first time particularly serious cases of the falsifica-
tion of documents and cases where such crimes are committed on an organised and/or
commercial basis. These crimes must be considered to lie at the heart of organised crime
and are typically committed as concomitant crimes in organised, closed structures – spe-
cifically in connection with “people smuggling” offences and organised car theft, but also
by other gangs (cf. Kinzig, “die Rechtliche Bewältigung von Erscheinungsformen der or-
ganisierten Kriminalität” [“The Legal Handling of Manifestations of Organised Crime”],
2004, p. 417). For the reasons stated above, the extension is limited to particularly serious
cases and those committed on an organised and/or commercial basis.
Paragraph 2, point 2, includes for the first time serious criminal offences under the Fiscal
Code [German: Abgabenordnung].
− The inclusion of the particularly serious case of tax evasion pursuant to Sec-
tion 370(3) sentence 2 point 5 of the Fiscal Code (as amended by Article 3 of this
Draft: organised persistent evasion of turnover tax or excise duties) will in particular
improve the prosecution of what are known as turnover tax carousels, for which there
is a considerable practical need. This form of economic and transaction crime re-
quires organisational structures that are not accessible from outside in a way that can
be openly investigated.
− The inclusion of commercial, violent and organised smuggling pursuant to Section
373 of the Fiscal Code is designed to allow effective action to be taken against organ-
ised smuggling (e.g. of cigarettes), where means of telecommunications are widely
used.
− The receiving or handling of tax-evaded goods on a commercial or organised basis
pursuant to Section 374(2) of the Fiscal Code (as amended by Article 3 of this Draft)
96
must also be considered organised crime, and its inclusion as an offence justifying
telecommunications monitoring measures is a necessary addition in order to deprive
organised crime of the advantages of the tax crimes referred to in Section 374(1) of
the Fiscal Code and hence of its funding.
Paragraph 2 point 3 includes for the first time particularly serious cases of a doping of-
fence pursuant to Section 95(1) point 2a of the Medicines Act (German designation:
AMG). The inclusion of the putting into circulation, prescribing or use of stimulants on a
commercial or organised basis pursuant to Section 95(3) sentence 2 point 2(b) of the
Medicines Act (as amended by the parallel legislative proposal for the improvement of the
combating of doping in sport) is intended to improve the prosecution of commercial or or-
ganised doping crime and the protection of public health. Their inclusion therefore seeks
to allow more effective action to be taken against organised doping networks.
Paragraph 2, points 4 to 8, adopt the criminal offences under the Asylum Procedure Act,
the Residence Act, the Foreign Trade Act, the Drugs Act and the Weapons of War Control
Act (German designation: KrWaffKontrG) that were already contained in the list of criminal
offences in Section 100a of the Code of Criminal Procedure. Point 8 includes for the first
time the penal provision, which is framed as a crime, of Section 20a(1) to (3) of the
Weapons of War Control Act (antipersonnel mines). Its inclusion is justified by the seri-
ousness of this offence and the fact that illegal dealings in antipersonnel mines normally
take place in an organised and covert manner, making telecommunications monitoring
particularly suitable for the successful investigation of this crime.
In order to bring things into line with Section 100c(2) point 6 of the Code of Criminal Pro-
cedure, paragraph 2 point 9 introduces for the first time the crimes pursuant to Sections 7
to 12 of the Code of Crimes Against International Law (German designation: VStGB)
(crimes against humanity, war crimes against persons, was crimes against property and
other rights, war crimes against humanitarian organisations and emblems, war crimes of
the use of prohibited methods of warfare). Section 6 of the Code of Crimes Against Inter-
national Law (Genocide), to which reference is also made, is already an act for which
monitoring measures are permitted under Section 100a sentence 1 point 2 of the Code of
Criminal Procedure.
In paragraph 2 point 10 concerning criminal offences under the Firearms Act, the refer-
ence to the offence of negligence pursuant to Section 51(4) of the Firearms Act has been
97
deleted, since it is not a serious criminal offence (under the Act, it carries a penalty of not
more than two years’ imprisonment or a fine).
Re Section 100a (3) of the Code of Criminal Procedure - Draft
The provision corresponds to the existing Section 100a sentence 2 of the Code of Criminal
Procedure.
Re Section 100a(4) of the Code of Criminal Procedure - Draft
Paragraph 4 concerns regulations governing the protection of the core area of private life-
styles where telecommunications monitoring measures are concerned.
The Federal Constitutional Court has on several occasions recognised core areas of private
lifestyles to which the state is simply denied access (BverfGE [Collected Decisions of the
Federal Constitutional Court] 6, 32, 41; 27, 1, 6; 32, 373, 379; 34, 238, 245; 80, 367, 373;
109, 279; BVerfG [Federal Constitutional Court], 1 BvR [Constitutional appeal reference at
the Federal Constitutional Court] 668/04 of 27 July 2005, paragraphs 160 et seq. NJW [Neue
Juristische Wochenschrift legal periodical] 2005, 2603, 2611 f.). In its decision on the acous-
tic surveillance of private premises (BverfGE [Collected Decisions of the Federal Constitu-
tional Court] 109, 279 et seq.), the Federal Constitutional Court has for the first time de-
manded standard precautionary measures governing the protection of this core area where
measures pursuant to Section 100c of the Code of Criminal Procedure are concerned. The
legislature has complied with this requirement through the Act of 24 June 2005 (Federal Law
Gazette I p. 1841). Subsequent to this case law, the number of measures pursuant to Sec-
tion 100c of the Code of Criminal Procedure (acoustic surveillance of private premises) has
been reduced from a previous average figure of just under 30 to a figure clearly less than 10.
In its judgment of 27 July 2005 (1 BvR [Constitutional appeal reference at the Federal Consti-
tutional Court] 668/04, NJW [Neue Juristische Wochenschrift legal periodical] 2005, 2603 et
seq.), the Federal Constitutional Court also demanded, in addition to this, standard precau-
tionary measures governing the protection of the core area of private lifestyles where tele-
communications monitoring measures (designed to counteract risks) are concerned. At the
same time, it recognised, however, that other benchmarks are to be set in this connection (cf.
Löffelmann, ZStW [Zeitschrift für die gesamte Strafrechtswissenschaft legal periodical] 118
[2006], 358, 375 et seq. for significant criticisms of these Constitutional Court requirements).
98
A special regulation, in particular one that would oblige the law enforcement agencies sys-
tematically to predict any possible core-area relevance of the conversations concerned be-
fore the legal protection measure was requested, ordered and implemented is – unlike in the
case of the acoustic surveillance of private premises (cf. Section 100c(4)(5) of the Code of
Criminal Procedure) – unnecessary in the case of telecommunications monitoring and would
not be practicable, either. Because telecommunications monitoring is a medium that depends
on the distance of the communicating parties from each other and that typically does not of-
fer a framework for exchanging highly personal information that is comparable with the use of
a flat and because such monitoring not only requires the services of third parties (the tele-
communications service providers) but also often takes place in public using mobile phones,
the risk of conversations being intercepted that belong to the core area of private lifestyles
and thus are sacrosanct with a view to protecting the human dignity of the person concerned
exists to a distinctly smaller degree than in the case of the acoustic surveillance of private
premises, through which there is direct interference in the citizen’s “last area of privacy”
(BVerfGE [Collected Decisions of the Federal Constitutional Court] 109, 279, 314). Preventa-
tive protection against any conceivable danger to this core area brought about by telecom-
munications monitoring would, moreover, be impracticable since – and this is a consideration
to which the Federal Constitutional Court also refers (BverfGE [Collected Decisions of the
Federal Constitutional Court], 1 BvR [Constitutional appeal reference at the Federal Constitu-
tional Court] 668/04 of 27 July 2005, paragraph 164, NJW [Neue Juristische Wochenschrift
legal periodical] 2005, 2603, 2612) – clues as to the core-area relevance of a conversation
usually only emerge from the conversation itself.
Telecommunications monitoring as a fact-finding tool is deemed to be very important both in
Germany and internationally. The investigation by Albrecht, Dorsch and Krüpe shows that it
is to be regarded as an important and indispensable fact-finding tool (loc. cit. p. 463). In view
of the State’s constitutional responsibility for law enforcement, it is therefore necessary for a
practicable area of application to remain for indispensable fact-finding tools such as tele-
communications monitoring.
Section 100a(4) of the Code of Criminal Procedure-Draft therefore makes it clear that tele-
communications monitoring is impermissible if there are real indications that information from
this core area would be obtained through monitoring alone. Insofar as such indications exist,
monitoring must not take place. Paragraph 4 ties in with the regulation governing the protec-
tion of the core area of private lifestyles in the case of the acoustic surveillance of private
premises pursuant to Section 100c(4) of the Code of Criminal Procedure, but differs from it in
significant respects. Pursuant to Section 100c(4) of the Code of Criminal Procedure, the
99
acoustic surveillance of private premises may only be arranged when the prognosis can be
made that there is no threat to the core area and, before the measure is ordered, clarification
is to be obtained as to the type of premises to be monitored and the persons expected to
reside there. If, in contrast, the other basic conditions are present, telecommunications moni-
toring is in principle permissible and need only not take place if a prognosis based on real
indications shows that only information from the core area of private lifestyles is to be ex-
pected. No special prior investigations need be carried out in connection with preparing this
prognosis, unlike in the case of the acoustic surveillance of private premises.
Attention has been given to taking account of the Federal Constitutional Court’s requirements
in decision 1 BvR [Constitutional appeal reference at the Federal Constitutional Court]
668/04 of 27 July 2005 (NJW [Neue Juristische Wochenschrift legal periodical 2005, 2603 et
seq.) in such a way that only a ban on the exploitation of evidence is provided for in respect
of information obtained in the core area of personal lifestyles (cf., in the area of police laws:
Act on Security and Order of the state of Mecklenburg-Vorpommern, Official Gazette M-V
2006, p. 551). The literature also in some cases indicates that the requirements in the afore-
said decision by the Federal Constitutional Court relate not to whether, but to how, the
measure should be implemented. The various areas of, and trends towards, protection in
Article 10 of the Basic Law, on the one hand, and Article 13 of the Basic Law, on the other,
are such as to indicate that a ban on the exploitation of evidence is sufficient where tele-
communications monitoring is concerned (cf. Gusy, Lower Saxony Official Gazette 2006, 65,
69).
The compatibility of this view with the requirements of the Federal Constitutional Court is,
however, at least doubtful. In accordance with what has been stated by the Federal Constitu-
tional Court, the measure is not to be implemented if the core area of private lifestyles is af-
fected. The ban on the collection of information in Section 100a(4), sentence 1 of the Code of
Criminal Procedure-Draft takes account of this. Unlike in the case of the acoustic monitoring
of private premises through which clues can be obtained on the basis of the type of premises
to be monitored and the relationship with each other of the persons to be monitored, the fact
of the matter – also pointed out by the Federal Constitutional Court – is that, in the case of a
telecommunications monitoring measure, it can scarcely be foreseen whether or not there
will be content relevant to the core area. Should a private connection be listened in to, there
will generally be no ruling out the possibility of private conversations – right up to the ex-
change of the most intimate communications – being intercepted. Experience shows, how-
ever, that private conversations with possible content relevant to the core area are also con-
ducted from fixed network connections used primarily for business or professional purposes.
100
The interception of content relevant to the core area cannot, therefore – as is also pointed
out by the Federal Constitutional Court – generally be ruled out in the case of telecommuni-
cations monitoring.
In theory, the interception of communications relevant to the core area in the case of tele-
communications monitoring could largely be prevented, however, through real-time listening.
As soon as a conversation that was to be monitored became relevant to the core area, the
eavesdropping on, and recording of, the telecommunication would have to be interrupted or
even brought definitively to an end. Such a procedure is, however, neither practicable nor
capable of being implemented with justifiable – and even additional – expenditure on, for
example, staff. A large proportion of the telecommunications at present monitored for the
purposes of bringing prosecutions is, for example, conducted in foreign, and not always eas-
ily identifiable, languages and dialects and, moreover, using secret codes. Even with an in-
terpreter constantly listening in alongside, it could not be guaranteed that the content of the
conversations would immediately be intercepted and translated appropriately. Often, it is in-
dispensable, rather, repeatedly to play and listen to the recorded communication, having re-
gard to information obtained so far in the course of the procedure. For other reasons due to
the way in which the medium is used (for example, background noise and poor reception),
many conversations are, moreover, barely intelligible at first hearing without technical proc-
essing. It is also a fact that the people being monitored sometimes also possess, and some-
times use in parallel, a wide range of telecommunications methods involving, for example,
telephony agreements on activities to be conducted in parallel on the Internet (with faxing
perhaps also engaged in at the same time). With the requirement for real-time listening, the
round-the-clock monitoring that, in practice, is generally necessary for intercepting all com-
munications relevant to an investigation could not even be carried out with a significant in-
crease in the number of staff. This applies most particularly to organised crime, which is top
of the list for telecommunications monitoring and which generally requires the parallel moni-
toring of several persons sometimes using a multiplicity of telecommunications connections.
No doubt bearing this state of affairs in mind, the Federal Constitutional Court has not de-
manded real-time listening in telecommunications monitoring, either, but stated that the same
strict standards do not have to be set as in the case of the acoustic monitoring of private
premises which, moreover, does not always require real-time listening, either.
The regulation in Section 100a(4), sentence 1 of the Code of Criminal Procedure – Draft
takes account of these factors. The regulation also facilitates the effective implementation of
telecommunications monitoring measures necessary for bringing prosecutions in respect of
101
serious criminal offences and also guarantees that the core area of private lifestyles is pro-
tected in a practical manner. With a view to protecting the core area of private lifestyles, it on
the one hand introduces, as early as at the stage of making arrangements, a ban on the col-
lection of information in the event of albeit unexploitable information (cf. paragraph 4, sen-
tence 2) from the core area of private lifestyles being, from the very outset, anticipated. On
the other hand, it restricts this ban on the collection of information to cases in which the
measure leads to an expectation of information exclusively from the core area of private life-
styles. Such cases are seldom to be found outside the scope of Section 53b(1) of the Code
of Criminal Procedure – Draft. One example would be communication using the spiritual wel-
fare telephone line that is made available by the Catholic and Protestant churches and that is
not for the most part run by clergy within the meaning of Section 53(1), sentence 1, point 1 of
the Code of Criminal Procedure but by specially trained full-time and voluntary workers under
the auspices of the churches.
In accordance with paragraph 4, sentence 2, information from the core area of private life-
styles should not be exploited. This corresponds to the requirements laid down by the Fed-
eral Constitutional Court, as well as to established specialist judicial precedents (cf. BGHSt
[Criminal case reference at the Federal Court of Justice] 14, 358 et seq.; 19, 325 et seq.; 34,
397, 399 et seq.; 36, 167, 173 et seq.; 44, 46, 48; BGHR [Federal Court of Justice Reports]
Code of Criminal Procedure Section 261 ban on the exploitation of information 8, 11; Federal
Court of Justice, 2 BJs 112/97-2 – StB 10 and 11/99 of 13 October 1999, NStZ [Neue
Zeitschrift für Strafrecht criminal law periodical] 2000, 383), which proceed on the assump-
tion that, through such exploitation, there would be still further unwarranted interference in
the core area. Applying the principle of proportionality, this ban on the exploitation of informa-
tion might, in particular cases, give rise to the obligation to interrupt the monitoring and re-
cording of telecommunications. If a situation (which the regulations in Section 100a(4) of the
Code of Criminal Procedure – Draft do not make obligatory and which should in practice be
exceptional) arises in which, in the course of implementing a telecommunications monitoring
measure, a telecommunication is, exceptionally, listened to in real time and the content of the
communication acknowledged, without doubt, to be relevant to the core area, the further col-
lection of such content is impermissible because, in the light of the ban on the exploitation of
information in sentence 2, it is inappropriate to seek to achieve the purpose for which the
measure was employed. In such exceptional cases, the monitoring and recording of the tele-
communication is therefore to be interrupted temporarily.
To the ban on the exploitation of information, there corresponds, in paragraph 4 sentence 3,
the duty immediately to destroy information obtained by means of an intervention in the core
102
area. This requirement immediately to destroy such information places this obligation in prin-
ciple on the person who is best placed to carry it out, usually one of the investigators en-
trusted with the exploitation of recordings made in the course of monitoring. This person may
– and will in doubtful cases – seek a decision by the public prosecution office before destroy-
ing any information. Because it heads the investigative procedure, the public prosecution
office is at liberty, either in individual cases or generally, to reserve for itself the decision as
to whether or not to destroy the information. The decision as to its destruction or otherwise
must always, however, be reached immediately – that is to say, without culpable hesitation –
so that, if sanctioned, the actual destruction might also take place without delay.
In order to ensure that legal protection against such monitoring is achieved, the fact of such
information having been intercepted and of relevant records having been destroyed is – pur-
suant to paragraph 4, sentence 4 – to be documented.
Attention was also given to a regulation on the model of Section 100c(7) of the Code of
Criminal Procedure, according to which, in the case of doubts as to whether unexploitable
information has been obtained, a decision of the court as to its exploitability is to be obtained
without delay. For the reasons already presented in the light of Section 53b(1) of the Code of
Criminal Procedure – Draft (prior to the comments on Section 53b(2) of the Code of Criminal
Procedure – Draft), no corresponding regulation was introduced.
Re Section 100b of the Code of Criminal Procedure - Draft
Section 100b of the Code of Criminal Procedure–Draft still summarises the hitherto applica-
ble procedural regulations governing the arrangement and implementation of telecommuni-
cations monitoring insofar as these are not inserted in general provisions and, in particular, in
Section 101 of the Code of Criminal Procedure–Draft or – in view of the regulation on use
hitherto contained in Section 100b(5) of the Code of Criminal Procedure – in Section 477(2)
of the Code of Criminal Procedure–Draft.
Re Section 100b, paragraph 1 of the Code of Criminal Procedure-Draft
Paragraph 1 makes telecommunications monitoring still subject to judicial order and states
the deadlines to be met for arranging such monitoring.
103
Sentence 1 lays down that measures pursuant to Section 100a of the Code of Criminal Pro-
cedure – Draft still have to be applied for by the public prosecution office and are still subject
to judicial order. The competent court in the investigative process is the Local Court in the
district in which the public prosecution office is located, and this in accordance with Sec-
tion 162(1) of the Code of Criminal Procedure - Draft.
Pursuant to sentence 2, the public prosecution office may, in accordance with current law,
also make the arrangements itself (urgent arrangement) if delay constitutes a danger to the
process.
Also in accordance with current law, sentence 3(1) lays down that the public prosecution’s
office’s urgent arrangement is no longer valid if it is not confirmed by the court within three
working days. What is new is the regulation set down in sentence 3(2), designed to prevent a
possible circumvention of judicial authority. According to this regulation, the personal data
obtained on the basis of the urgent arrangement may only be used for purposes of evidence
in criminal proceedings if the danger to the process, which was the precondition of the urgent
arrangement on the part of the public prosecution’s office, lay in delay. If information ob-
tained on the basis of an urgent arrangement on the part of the public prosecution’s office
has been used for evidential purposes, the recognising court has therefore also to examine
whether the danger that was a precondition of the urgent arrangement lay in delay.
Pursuant to sentence 4, a time limit of no more than two months is to be set on the measure.
The associated shortening of the period of the order from what has hitherto been three
months to two months takes account of the constitutionally neutral information obtained from
the Albrecht/Dorsch/Krüpe investigation (loc. cit. p. 166 et seq., 170 f.), according to which
some three quarters of telecommunications measures are conducted over a period of up to
two months and only some 9% of connections are in actual fact monitored over the period of
three months. An order period of no more than two months therefore appears to be adequate
for the majority of measures. Because of this shortening of the order period, an increase in
the number of extension orders and, therefore, also in the total number of annual telecom-
munications orders should, however, be expected.
In accordance with sentence 5, an order may, as hitherto, be extended – and on a number of
occasions, too – if this is required in individual cases. What is new is that a time limit of no
more than two months is to be placed on the extension. This takes account of the aforesaid
constitutionally neutral information. It is also made expressly clear that an extension is only
permissible when, account having been taken of the results obtained from the investigation,
104
the preconditions of the order continue to exist. This requires in practice that the court be
sufficiently informed by the law enforcement agencies of the results of the investigation that
have by then been obtained – results not only from the telecommunications monitoring but
also from any other more recent investigative measures.
When it comes to determining the deadlines for both the initial order and the extension, the
general regulations apply that are to be found in Sections 42 et seq. of the Code of Criminal
Procedure (cf. Günther, crime statistics 2006, p. 683 et seq. used for determining the dead-
lines within the framework of the applicable Section 100b of the Code of Criminal Procedure).
The start of the period concerned is triggered no later than on the issue of the first judicial
order or judicial extension order. Only in that way is it guaranteed that the relevant current
information can form the basis for ordering the measure and can be integrated into the judi-
cial examination of the preconditions of the order. This also applies when an extension order
is clearly issued before the expiry of the initial order with the result that the period for the ini-
tial order is not in fact completely used up. This rules out the issue of “precautionary” exten-
sion orders. In this way, timely judicial control of the telecommunications monitoring measure
within the meaning of as effective as possible protection under German Basic Law of the
persons affected by the measure is guaranteed. For the purpose of determining the end of
the period concerned, see also the re-regulation in paragraph 2, sentence 2, point 3 (indica-
tion of the finish date).
Sentence 6 supplements this system of control inasmuch as orders extending over a period
of more than six months may only be arranged through the court responsible for the legal
process: usually the regional court. This only applies, however, subject to Section 169 of the
Code of Criminal Procedure. In matters that come within the competence of the investigating
magistrate at the Higher Regional Court or the Federal High Court, the court is question also
retains its competence in respect of extensions of more than six months.
Re Section 100b(2) of the Code of Criminal Procedure - Draft
As a modification to Section 100b(2), sentences 1 to 3 of the Code of Criminal Procedure
and in accordance with Section 100d(2) of the Code of Criminal Procedure, the provision
contains qualified obligations relating to the form and content of an order decision. However,
qualified justification obligations are – unlike in the case of the acoustic surveillance of pri-
vate premises (Section 100d(3) of the Code of Criminal Procedure) – not provided for, since
the conditions for ordering the monitoring of telecommunications, especially with a view to
the qualified core-area prognosis required in the case of the acoustic surveillance of private
105
premises, are less extensive overall. Moreover, the established precedents – also applicable
in this case - concerning the necessary content by way of justifying decisions on searches
are in any case to be taken account of (BVerfGE [Collected Decisions of the Federal Consti-
tutional Court] 96, 44, 52; 103, 142, 151; 107, 299 et seq.; BverfG, 2 BvR [Constitutional ap-
peal reference at the Federal Constitutional Court] 27/04 of 8 March 2004, NJW [Neue Ju-
ristische Wochenschrift legal periodical] 2004, 1517 et seq.). The adoption of a qualified justi-
fication obligation in the case of telecommunications monitoring orders would relativise the
special orders that are to be issued for justifying an order for the acoustic surveillance of pri-
vate premises and, to turn the argument on its head, would raise the issue as to whether less
extensive orders are to be issued for justifying the ordering of other covert and open investi-
gative measures. There is already a general duty under Section 34 of the Code of Criminal
Procedure to provide appropriate justification for an order that makes it possible to recon-
struct and examine the decision.
In accordance with paragraph 2, sentence 1, an order for telecommunications monitoring
is to be issued in writing. This corresponds to current law and relates both to the judicial
order and to the public prosecution office’s urgent order and any extension orders.
Pursuant to paragraph 2, sentence 2, point 1, the name and address of the person against
whom the measure is directed is to be given, where possible. The qualification “where
possible” takes account of the fact that complete information about the person concerned
is not always present, for example because the person concerned has an alias or as-
sumed name or because the person’s name is still not known.
In accordance with the aforesaid requirements established by precedent and relating to
the necessary content of an order pursuant to Section 100d(2), point 2 of the Code of
Criminal Procedure, consideration was given to requiring that the wording of the decision
include the charge on the basis of which the measure is being ordered. Out of considera-
tions of proportionality where data protection is concerned, this was not done, given the
fact that, in the cases described in paragraph 3 – that is to say, generally – the decision is
to be communicated to the telecommunications company.
Pursuant to paragraph 2, sentence 2, point 2, the order must also contain the telephone
number or other identification (for example, International Mobile Subscriber Identity) of the
connection or terminal equipment that is to be monitored.
106
The ability to give an identification for the terminal equipment that is to be monitored is
qualified by the fact – provided for by the legislator in Section 23b(4), sentence 2, point 2
of the ZFdG [Customs Investigation Service Act], too – that the terminal equipment identi-
fication to be given is also to be allocated solely to the terminal equipment that is to be
monitored. What is known as the “IMEI-based” monitoring of mobile telephones – monitor-
ing that, in future, it will also be possible to use in the context of criminal proceedings –
takes account of the difficulties that currently arise in monitoring perpetrators with experi-
ence of the police and investigations. Such perpetrators (known as “card players”) some-
times have numerous (in some cases more than 100) different mobile telephone cards
(SIM cards) at their disposal, which they insert alternately into what, in the main, is the
same mobile telephone. In that way, the identification of the mobile telephone connection
to be monitored constantly changes so that the new identification of the connection has
first to be investigated and then a judicial decision made on the monitoring of this identifi-
cation too. Through this tactic, the suspect can evade monitoring for certain periods and,
sometimes, indefinitely. The resultant gaps in monitoring give rise to a need for practice
designed to bring about as uninterrupted a monitoring as possible of telecommunications
via the equipment identification (IMEI) of the mobile telephone used on a permanent ba-
sis. The re-regulation in paragraph 2, sentence 2, point 2 takes account of this.
The requirement that the terminal equipment identification be allocated solely to the termi-
nal equipment to be monitored will in practice guarantee that, before the monitoring
measure is implemented, the telecommunications service providers responsible, in accor-
dance with paragraph 3, for participating in the monitoring and for providing information
will check whether the equipment identification concerned has been booked into the mo-
bile telephone network on more than one occasion.
Paragraph 2, sentence 2, point 3 adopts from Section 100b(2), sentence 3 of the Code of
Criminal Procedure the requirement to state the type, extent and time of the measure.
Through corresponding concrete measures also concerning the type of technical action to
be taken in respect of the telecommunications to be monitored, a situation is achieved in
which the measure is purposefully put in place and the judicial authority exercised in terms
of a comprehensive examination of all aspects of the action to be taken. What is new is
that, with regard to the duration of the measure, the finish date of the measure is also to
be stated in the orders. The required deadline calculations are therefore to be made by
the ordering office, with the obligation also, and in particular, placed on the telecommuni-
cations service providers required, pursuant to paragraph 3, to collaborate. This prevents
107
uncertainties, as well as disputes of the kind that have occasionally occurred in the past
about, for example, on which precise date an ordered measure is to be implemented.
Re Section 100b(3) of the Code of Criminal Procedure - Draft
Paragraph 3 lays down – in accordance with current law – a duty on the part of telecommu-
nications service providers to collaborate in facilitating telecommunications monitoring. Such
service providers are obliged to facilitate the implementation of the monitoring measure and
– something now made expressly clear in the text of the Act and in the light of the reference
in Section 100g(2) of the Code of Criminal Procedure-Draft to Section 100b(3) – to commu-
nicate the information required.
The need to place telecommunications service providers under this obligation arises from the
fact that telecommunications monitoring measures can generally only be efficiently carried
out with the collaboration of the telecommunications service providers, with the latter sending
a copy of the now thoroughly digitalised telecommunications signals to the prosecution au-
thorities. An obligation on the part of the prosecution authorities always to implement tele-
communications monitoring measures with the collaboration of a telecommunications service
provider is, however, not justified. Rather, Section 100a(1), sentence 1 of the Code of Crimi-
nal Procedure – Draft contains authorisation, not dependent on the collaboration of the tele-
communications service providers, to monitor and record telecommunications. This authori-
sation is limited only by the type of monitoring (cf. Section 100b(2), sentence 2, point 3 of the
Code of Criminal Procedure - Draft) to be specified in more detail in the judicial order deci-
sion. According to the judicial order decision, the prosecution authorities are therefore also
justified in implementing monitoring measures exclusively using their own resources. The
fact that technical resources may also be employed in this connection is also already evident
from Section 100a(1), sentence 1 of the Code of Criminal Procedure – Draft, since the moni-
toring and recording of telecommunications expressly allowed therein can generally only take
place through the use of technical resources. In individual cases, it is, however, strictly to be
ensured when implementing a monitoring measure that only such telecommunications are
intercepted whose monitoring is legitimised through the judicial order.
With a view to the transposition of Article 17 in conjunction with Article 16 of the Convention
on Cybercrime – transposition that does not provide for any restriction, in terms of the current
paragraph 3, on collaboration obligations imposed on telecommunications service providers
who provide their services on a commercial basis – the provision needs to be extended to
include such persons and institutions as provide telecommunications services or collaborate
108
in providing them but do so on a non-commercial basis. The “commercial provision of tele-
communications services” is the sustained offer of telecommunications to third parties, with
or without profit-making intent (Section 3, point 10 of the Telecommunications Act [abbrevi-
ated in German to TKG]). What are not included are telecommunications services that come
within a closed system, for example between extensions operated for “own use” only, as in
the case of hotels, hospitals or firms or in the case of domestic telephone equipment. (Nack,
loc. cit. Section 100a, margin number 18). Articles 16 and 17 of the Convention on Cyber-
crime make provision for restricting the duty of collaboration to institutions and persons that
offer telecommunications services on a commercial basis, but make that provision only in the
light of the option to make a reservation, provided for by Article 16(4) in conjunction with Arti-
cle 14(3), letter b of the Convention on Cybercrime. This extends, however, only to measures
pursuant to Articles 20 and 21 of the Convention and, in the case, therefore, of traffic data, to
its real-time collection.
Because of the increasing prevalence of closed telecommunications systems, there is, in
terms of combating crime, great significance in correspondingly extending the duty of col-
laboration also to include service providers that do not operate on a commercial basis. If
criminal acts are committed within a company or authority, information concerning telecom-
munications internal to the company or authority may also help in clearing up the crimes.
These considerations also apply to the real-time collection of traffic data, which ought there-
fore – without making use of the reservation option in Article 16(4) in conjunction with Arti-
cle 14(3), letter b of the Convention – to be regulated correspondingly. So as not to burden
institutions that are beginning to operate on a non-commercial basis with disproportionate
costs, the obligation - laid down in the Telecommunications Monitoring Order [German ab-
breviation: TKÜV] – to put safeguards in place in connection with the transposition of moni-
toring measures is limited to “public” service providers. The corresponding reference in para-
graph 3, sentence 2 is worded more generally in order to prevent frequent amendments due
to amendments to the Telecommunications Act referred to.
Re Section 100b(4) of the Code of Criminal Procedure - Draft
In terms of content, sentence 1 corresponds to the current regulation in Section 100b(4),
sentence 1 of the Code of Criminal Procedure and makes it clear that the measures taken on
the basis of the monitoring order are to be terminated without delay if the prerequisites of the
order no longer prevail.
109
The regulation contained in the current sentence 2 on communicating the termination of the
measure to the court and to the telecommunications service provider that has obligations
pursuant to Section 100b(3) of the Code of Criminal Procedure has not been accepted with-
out an associated amendment in terms of content. That is because the duty to inform the
telecommunications service provider already proceeds from sentence 1, according to which
the measures adopted on the basis of the order are to be terminated without delay. With re-
gard to the passing on of the monitored telecommunications from the telecommunications
service provider to the criminal prosecution authority, this already presupposes that the tele-
communications service provider will be correspondingly informed by the criminal prosecu-
tion authority and does not therefore require any separate legal regulation.
The new sentence 2 extends the current duty to inform the court of the termination of the
measure, so that the court has now also to be informed of the course and the results of the
monitoring. The duty of information – regulated in accordance with Section 100d(4) of the
Code of Criminal Procedure – serves to strengthen the constitutional control aimed at by the
requirement of judicial authority. It is to enable the court - which at present receives no notifi-
cation in many cases, so that it is not entrusted with further decisions (on, for example, ex-
tension orders) - to carry out a check on the success of the measures so that it is able to take
account of what it learns in future decisions.
Re Section 100b(5)(6) of the Code of Criminal Procedure – Draft
Together with other regulation content, paragraphs 5 and 6 are revised. The content of cur-
rent paragraph 5 (restriction on use) is now in Section 477(2), sentence 2 of the Code of
Criminal Procedure - Draft, and that of current paragraph 6 (destruction regulation) is in Sec-
tion 101(10) of the Code of Criminal Procedure - Draft.
The revised paragraphs 5 and 6 create a uniform provision for the collection of statistics re-
lating to telecommunications monitoring measures pursuant to Section 100a(1) of the Code
of Criminal Procedure - Draft, which replaces Section 110(8) of the Telecommunications Act
and the corresponding regulation in Section 25 of the Telecommunications Monitoring Order
[German designation: TKÜV] and establishes an explicit statutory obligation regarding the
statistical reports to be submitted by the judicial departments of the Länder and the General
Federal Attorney to the Federal Supreme Court of Justice.
Paragraph 5, sentence 1 specifies that the Länder and the General Federal Attorney shall
inform the (future) Federal Office of Justice each calendar year of the measures ordered
110
within their area of jurisdiction pursuant to Section 100a of the Code of Criminal Procedure –
Draft. As may be seen from paragraph 6, the reports contain pure statistical information.
They are not concerned with the transmission of personal data. In order to guarantee timely
notification regarding current developments in telecommunications monitoring measures, the
reports are to be submitted by 30 June of the year following the year under review. It is left to
the Länder and the General Federal Attorney to determine how it is to be ensured that the
reports are drawn up and submitted on time. The Länder will, presumably through the Justice
authorities of the Länder and according to how they have handled these matters in the past,
draw up corresponding reports on the basis of notifications by the public prosecution offices.
Paragraph 5, sentence 2 obliges the Federal Office of Justice, on the basis of the data com-
municated by the Länder and the General Federal Attorney, to draw up a nationwide review
and publish this on the Internet. In this way, a high measure of transparency in respect of the
development of telecommunications monitoring measures arranged for repressive purposes
will be achieved.
Paragraph 6 specifically lists the detailed information to be provided in the reports pursuant
to paragraph 5.
Points 1 to 3 relate to data easily obtainable from the decisions on orders or extensions
(number of procedures in which orders have been issued; number of orders, broken down
into initial and extension orders and according to the type of communication to be moni-
tored; grounds for these orders).
Point 4 requires the quantity of monitored telecommunications to be stated, broken down
according to whether they are fixed network, mobile phone or Internet telecommunica-
tions. This should provide information about the degree to which telecommunications are
monitored through measures pursuant to Section 100a of the Code of Criminal Procedure
and the degree to which people’s basic rights are thereby compromised. The approximate
number of people monitored is also to be stated. Consideration was first given to having
the number of participants in the monitored telecommunications stated. This would have
come up against practical problems, however. Where, for example, the participants in
telephone calls were unknown, it would, if need be, require quite considerable additional
and disproportionate expenditure to determine whether the people concerned were the
same or other people. Reliable figures concerning the number of participants are not,
therefore, obtainable. This no doubt corresponds, however, to the usual method of pro-
ceeding in the case of telecommunications monitoring measures, whereby the record of
111
each telecommunication is evaluated separately so that it is possible easily and without
high additional expenditure to count the number of intercepted telecommunications.
Re point 8 (Section 100c of the Code of Criminal Procedure - Draft)
The amendments to be made to paragraphs 1 and 6 are essentially editorial in nature:
The antepositioning of the word “also” in sentence 1 makes it clear that the measure will
not become impermissible through one of the people concerned becoming aware of it (cf.
the details of the comments on the corresponding amendment in Section 100a(1) of the
Code of Criminal Procedure - Draft).
The insertion of the words “as perpetrator or accessory”, which are also contained in the
editorially corresponding regulation in Section 100a(1), point 1 of the Code of Criminal
Conduct – Draft, helps make it clear that the acoustic surveillance of private premises may
also be ordered in respect of anyone accused of being an accessory.
The replacement of the word “or” by “and” in paragraph 1, point 1, letter b takes account
of the fact that the enumeration concerned is a cumulative one.
The more stringent wording of paragraph 1, point 1, letter c does not involve any amend-
ments to content.
The replacement of paragraph 6, sentence 3 by a reference to Section 53b(4) of the Code
of Criminal Procedure–Draft adapts the current regulation on involvement to the general
and – in view of the new requirement that the suspicion of involvement must already have
led to an investigative procedure being instituted against the keeper of professional se-
crets – stricter regulation on involvement in Section 53b(4) of the Code of Criminal Proce-
dure–Draft.
Re Point 9 (Section 100d of the Code of Criminal Procedure - Draft)
The amendments to Section 100d, too, of the Code of Criminal Procedure are merely edito-
rial:
112
Paragraph 2, sentence 2, point 1 is adapted, through the replacement of the word “known”
by the word “possible”, to Section 100b(2), sentence 2, point 2 of the Code of Criminal
Procedure – Draft, without this involving any amendment to the content.
The current paragraph 5 lapses, since the regulation on destruction contained in it is now
contained in the general provision of Section 101(10) of the Code of Criminal Procedure –
Draft.
Individual terminological details of the current paragraph 6, which becomes paragraph 5,
have been reworked in view of the terms and definitions established in data protection
law, and without this involving any amendments to the content.
Current paragraphs 7 to 10 lapse because what was regulated by them (marking, notifica-
tion, ex post facto legal protection) is now regulated by the provision in Section 101(3) (4
to 9) of the Code of Criminal Procedure – Draft, said provision being applicable to all cov-
ert investigative measures.
Re point 10 (Section 100e of the Code of Criminal Procedure - Draft)
The regulation in paragraph 1 on the preparation of (statistical) reports on orders for the
acoustic surveillance of private premises is shortened through the reference in sentence 1 to
the new Section 100b(5) of the Code of Criminal Procedure – Draft. Sentence 2 makes it
clear that, in fulfilment of its duty to report to the Federal Parliament in accordance with Arti-
cle 13(6) of the Basic Law, the Federal Government shall continue to report each year on
measures ordered in accordance with Section 100c of the Code of Criminal Procedure. As is
expressly made clear at the beginning of sentence 2, the report to the Federal Parliament
must be made before the review is duly published on the Internet by the Federal Office of
Justice pursuant to Section 100b(5), sentence 2 of the Code of Criminal Procedure – Draft.
In accordance with current practice, it is to find its way into a Bundestag document. If practi-
cable, the Federal Office of Justice may also, therefore, publish the review through a link to
the Federal Parliament’s website on which Bundestag documents are posted.
A consequential amendment of a merely editorial nature is made to paragraph 2, point 8,
which means that, in future, the referred-to regulations on notification in the case of the
acoustic surveillance of private premises will no longer be contained in Section 100d(8) of
113
the Code of Criminal Procedure, but emerge from the general provision in Section 101(4)
et seq. of the Code of Criminal Procedure - Draft.
Re: Number 11 (Sections 100f to 101 of the Code of Criminal Procedure-Draft)
Re: Section 100f of the Code of Criminal Procedure-Draft
In keeping with the provisions on acoustic surveillance of private premises in Sections 100c
to 100e of the Code of Criminal Procedure, Section 100f of the Code of Criminal Procedure-
Draft will still only regulate acoustic surveillance outside private premises in future. The regu-
lations governing photography and observation equipment contained in (old) Section 100f of
the Code of Criminal Procedure have been moved to Section 100h of the Code of Criminal
Procedure-Draft.
(Old) paragraph (1) has been deleted as its regulatory content is now covered by Sec-
tion 100h of the Code of Criminal Procedure-Draft.
The first sentence in (old) paragraph (2) is now the first sentence in (new) paragraph (1),
with the opening words (“Even without”) in line with Section 100a (1) and Section 100c of
the Code of Criminal Procedure-Draft (cf. comments on these sections).
The procedural regulations contained in the (old) second and third sentences of Section
100f (2) of the Code of Criminal Procedure have been replaced by a reference in (new)
paragraph (4) to Section 100b (1), (4) first sentence, and Section 100d (2) of the Code of
Criminal Procedure-Draft, thereby bringing the procedures into line for comparable tele-
communications monitoring measures, as far as their intensity of intrusion is concerned,
with the surveillance of the spoken word outside private premises:
− the regulation governing the jurisdiction to issue orders in the second sentence of (old)
paragraph (2) (hitherto reserved for judges or, in an emergency, for the public prosecu-
tor or investing officer) has been replaced by a general reference in paragraph (4) to
Section 100b (1) of the Code of Criminal Procedure-Draft which, taking covert investi-
gation methods as a whole, would appear to be more in keeping with the intensity of in-
trusion of in the case of surveillance of the non-publicly spoken word. This means that
investigation officers attached to the public prosecutor’s office (Section 152 of the Judi-
114
cature Act) will in future no longer have the jurisdiction to issue orders, even where to
delay would be dangerous;
− the reference in the third sentence of (old) Section 100f (2) to the second sentence of
Section 98b (1) of the Code of Criminal Procedure has been deleted, because it ap-
pears to be systematically inappropriate and unclear and, given the reference (now in-
serted in paragraph (4)) to the third sentence of Section 100b (1) of the Code of Crimi-
nal Procedure-Draft, no longer of any significance per se;
− given the formal requirement for an order, the reference to Section 100b (2) of the
Code of Criminal Procedure has been changed to a reference to the more materially
pertinent Section 100d (2) of the Code of Criminal Procedure;
− the reference to the first sentence of Section 100b (4) of the Code of Criminal Proce-
dure-Draft (termination of the measure where the preconditions to the order no longer
apply) has been maintained;
− compulsory deletion, as regulated in Section 100f (2) of the Code of Criminal Proce-
dure in the form of a reference to Section 100b (6) of the Code of Criminal Procedure,
shall be safeguarded in future by the reference to the regulations in Section 101 of the
Code of Criminal Procedure-Draft, which also makes measures under Section 100f of
the Code of Criminal Procedure-Draft subject to the compulsory marking and compul-
sory notification referred to therein (cf. statement of reasons on Section 101 of the
Code of Criminal Procedure-Draft);
the first sentence of (old) paragraph (3) is now to be found in the first sentence of (new)
paragraph (2);
the second sentence in (old) paragraph (3) has been deleted because its regulatory con-
tent referred to photography, which is now regulated under Section 100h of the Code of
Criminal Procedure-Draft;
the third sentence of (old) paragraph (3) has been edited and is now to be found in the
second sentence of (new) paragraph (2);
the (old) fourth sentence is now to be found in (new) paragraph (3), which adopts the
wording in Section 163f (2) of the Code of Criminal Procedure for other persons affected
(“third parties” rather than “other persons”);
115
(old) paragraph (5) has been deleted, because its regulatory content (governing usage) is
now to be found in the second sentence of Section 477 (2) of the Code of Criminal Proce-
dure-Draft.
Re: Section 100g of the Code of Criminal Procedure-Draft
Section 100g of the Code of Criminal Procedure has been comprehensively revised, in order
to take account of the requirements and implications of the Data Retention Directive
(2006/24/EC) of 15 March 2006, the Council of Europe Convention on Cybercrime of 23 No-
vember 2001 (SEV no. 185) and constitutional imperatives.
Re: Section 100g (1) of the Code of Criminal Procedure-Draft
Paragraph (1) has been worded, on the basis of Section 100a (1) of the Code of Criminal
Procedure-Draft as a general authorisation to collect traffic data, thereby introducing the pos-
sibility of real-time collection of traffic data required under Article 20 of the Cybercrime Con-
vention.
1. The provision in the old legislation only authorised prosecuting authorities to request
information on stored connection data (cf. definitions of connection data and traffic data
under 2. below) from persons providing telecommunication services on a commercial
basis or involved in such provision. Real-time collection of traffic data, on the other
hand, was only allowed subject to the preconditions set out in Sections 100a and 100b
of the Code of Criminal Procedure, while the provision of past non-real time traffic data
and future traffic data required an order under Section 100g (1) of the Code of Criminal
Procedure. This differentiated approach to obtaining traffic data stored by service pro-
viders, the real-time collection of traffic data and information on future traffic data would
appear to be unnecessarily complicated and materially unjustified. The intensity of in-
trusion of investigations into telecommunications is judged on the basis of the quality of
the data obtained, i.e. whether they provide information on the content of monitored
communications or simply on their external circumstances or even merely on circum-
stances which do not relate to a specific telecommunication, for example where posi-
tioning data is collected on a mobile telephone which is simply ready for use but has
not been used. The case law of the Federal Constitutional Law also follows this differ-
entiation (cf. BVerfGE 67, 157, 172; 100, 313, 358 f.; 107, 299, 312 f.; 110, 33, 52 f., 68
116
f.; BVerfG, 1 BvR 668/04 of 27 July 2005, paragraph point 81, and 2 BvR 1345/03).
Section 100g of the Code of Criminal Procedure has therefore now been worded as a
comprehensive authorisation to collect traffic data, rather than merely as a regulation
governing requests for information from telecommunications service providers, thereby
also taking account of Article 20 (1) (a) of the Cybercrime Convention, which requires
the possibility of real-time collection of traffic data.
Although this possibility is not restricted under the said provision to specific offences,
such a restriction would be possible in principle on the basis of the reservation allowed
under Article 20 (4), in conjunction with Article 14 (3) (a) of the Convention. The old
German regulation, which treated real-time collection of traffic data and data on the
contents of a telecommunication under Section 100a of the Code of Criminal Proce-
dure equally, would represent the outer limit of a reservation allowed under Article 14
(3) (b) of the Convention. Be that as it may, the contracting parties have undertaken
(fifth sentence of Article 14 (2) of the Convention) to examine the possibility of limiting
any such reservation, so that real-time collection of traffic data can be applied to the
widest possible extent.
The possible restriction on real-time collection of traffic data within the meaning of this
option, which corresponds to the rules on the collection of content data within the
meaning of Section 100a of the Code of Criminal Procedure, is not required under
German law due to the different intensity of intrusion of the two measures. On the con-
trary, the material restrictions on information on traffic data already contained in (old)
Section 100g (1) of the Code of Criminal Procedure and the additional restrictions in
this draft guarantee that measures will also be sufficiently restricted in respect of real-
time collection of traffic data. Moreover, harmonising Section 100g of the Code of
Criminal Procedure-Draft with the procedural rules in Sections 100b and 101 of the
Code of Criminal Procedure-Draft also substantially improves the legal protection of the
persons affected, even in connection with the collection of traffic data, compared with
the previous legislation. As far as the planned limitations in Section 100g of the Code of
Criminal Procedure for regulations on data retention are concerned, cf. explanations
under point 5 below.
The fact that the first sentence of Section 100g (1) of the Code of Criminal Procedure-
Draft is worded as a comprehensive authorisation to collect traffic data does not dis-
pense with the duty of information of service providers expressly contained in (old)
Section 100g (1) of the Code of Criminal Procedure. On the contrary, their duty to help
117
reroute traffic data in real time or to provide information on stored traffic data is implied
in the reference in the first sentence of Section 100g (2) to Section 100b (3) of the
Code of Criminal Procedure-Draft, under which unlimited (but necessary) information
may be requested on stored traffic data relating to past telecommunications and under
which it will still be possible to request information on future traffic data, provided that
the deadlines for orders laid down in the first sentence of Section 100g (2), in conjunc-
tion with Section 100b (1) of the Code of Criminal Procedure-Draft, are complied with.
The regulation therefore makes provision for two ways for the prosecuting authorities to
collect data: firstly, these data can be collected in real time, i.e. rerouted “live” from the
telecommunications service provider to the prosecuting authorities and, secondly, the
data can be collected by bundling traffic data which postdate the order and routing
them to the prosecuting authorities at certain intervals.
The first sentence of Section 100g (1) of the Code of Criminal Procedure-Draft also ap-
plies, for the reasons already explained in connection with Section 100b (3) of the
Code of Criminal Procedure-Draft, both to traffic data stored by persons or agencies
providing telecommunications services on a commercial basis or involved in such pro-
vision, and to persons or agencies that do not provide such services commercially, in
that the need for traffic data to be collected for prosecution purposes is not obviated by
the fact that the telecommunications services are not provided on a commercial basis.
What is important is that data under the control of a telecommunications service pro-
vider must be allocated to a telecommunication protected under Article 10 of the Basic
Constitutional Law and Section 100g of the Code of Criminal Procedure-Draft therefore
creates a constitutional legal basis for the collection of these data. Section 100g of the
Code of Criminal Procedure-Draft does not regulate if and, where applicable, what pre-
cautions the telecommunications service provider in question must take so that, if an
order is given by the prosecuting authorities, it is in a position to route the traffic data;
on the contrary, this question is governed by the provisions of telecommunications leg-
islation, such as the Telecommunications Act (e.g. Section 113a of the Telecommuni-
cations Act-Draft) and of the (future) contents of the Telecommunications Monitoring
Order.
2. The term “telecommunications connection data” previously used in Section 100g of the
Code of Criminal Procedure has been replaced by the term “traffic data” (data col-
lected, processed or used during the provision of telecommunications services) used in
Section 96 (1) of the Telecommunications Act, the statutory definition of which is given
in Section 3 (point 30) of the Telecommunications Act, in keeping with the requirements
118
of the Cybercrime Convention and common parlance in modern telecommunications
law. As the first sentence of paragraph (1) on data which may be collected refers gen-
erally to Section 96 (1) of the Telecommunications Act, the definition of traffic data in
(old) Section 100g (3) of the Code of Criminal Procedure is no longer required. This
simplification is based on the general premise that traffic data, which service providers
are allowed to collect for their own purposes, may also be collected by the prosecuting
authorities subject to the strict preconditions laid down. The reference to Section 96 (1)
of the Telecommunications Act goes beyond Section 100g (3) of the Code of Criminal
Procedure, insofar as Section 100g (3) makes no reference to personal authorisation
identifiers (Section 96 (1) point 1 of the Telecommunications Act), billable data volumes
transmitted (Section 96 (1) nos. 2 and 4 of the Telecommunications Act) and other traf-
fic data needed in order to set up and maintain the telecommunication and keep billing
accounts (Section 96 (1) point 5 of the Telecommunications Act). This does not sub-
stantially broaden the authorisation to collect data:
personal authorisation identifiers (Section 96 (1) point 1 of the Telecommunications
Act) can already be collected under the special provision in the second sentence of
Section 113 (1) of the Telecommunications Act, subject to the preconditions set out
therein;
billable data volumes transmitted (Section 96 (1) nos. 2 and 4 of the Telecommuni-
cations Act) only allow the content of the communication to be inferred in the same
way as knowledge of the duration of the connection;
the inclusion of other traffic data needed to set up and maintain the telecommunica-
tion and keep billing accounts (Section 96 (1) point 5 of the Telecommunications
Act) is needed in order to solve cases. If fraudulent manipulation of charges is sus-
pected, a situation might otherwise arise in which this suspicion cannot be properly
clarified, because there is no authorisation to collect the other traffic data needed in
order to keep billing accounts. In addition, the telecommunications industry is
marked by rapid technological progress; this alone is reason enough for the techni-
cally open-ended authorisation to collect data in Section 100g (1) of the Code of
Criminal Procedure-Draft (by including the “other traffic data” referred to in Sec-
tion 96 (1) point 5 of the Telecommunications Act), in order to be able to keep up
with progress in the telecommunications sector.
119
3. The authorisation to collect data in accordance with Section 100g of the Code of Crimi-
nal Procedure-Draft no longer depends on an established communication connection
(as made clear by the words “if a connection is established” in Section 100g (3) of the
Code of Criminal Procedure). This allows the new regulation to dispense, where posi-
tioning data are collected, with the need to send (a legally contentious) “stealth ping”
SMS, and the positioning data of a mobile telephone which is switched on can also be
collected in real time even if it is not actually being used, e.g. in order to enable or fa-
cilitate surveillance measures. However, even though this sort of facility is of consider-
able help to the prosecution, it is only applied, for reasons of proportionality, in the case
of very serious offences within the meaning of paragraph (1) (first sentence, point 1) of
the Code of Criminal Procedure-Draft, as the third sentence in paragraph (1) explicitly
clarifies (cf. last paragraph under V above on the compatibility of this restriction with the
requirements of the Council of Europe Cybercrime Convention).
4. The precondition in (old) Section 100g of the Code of Criminal Procedure (that the
measure must be necessary to the investigation) has been made more precise, in
keeping with the wording in other special authorisation rules (e.g. in Section 100a (1) of
the Code of Criminal Procedure-Draft), by stipulating that the collection of traffic data
must be necessary in order to investigate the facts or establish the suspect’s where-
abouts.
5. Section 100g (1) of the Code of Criminal Procedure-Draft will in future include two
categories of offences which warrant the collection of traffic data: extremely serious
criminal offences and offences committed through telecommunications.
a) the new wording clarifies, in keeping with the case law of the Federal Constitu-
tional Court that, in the case of extremely serious criminal offences (paragraph
(1), first sentence, point 1), the offence must be extremely serious both in the ab-
stract (e.g. in light of the statutory punishment) and in the case in question (cf.
BVerfGE 107, 299, 322 and explanations above on Section 100a (1) point 2 of
the Code of Criminal Procedure-Draft);
b) the description of the old category of offences committed “using a terminal de-
vice” (which if interpreted literally could also be understood to include use of a
terminal device to inflict physical injury) has been clarified by stating that the of-
fence must be committed “through telecommunications” (paragraph (1), first sen-
tence, point 2). The fact the legislation also makes provision for the collection of
120
traffic data, in the case of an offence committed through telecommunications,
even if the offence is not extremely serious, does not give rise to any constitu-
tional concerns (cf. explicitly in BVerfG, 2 BvR 1085/05 of 17.06.2006, paragraph
point 17).
However, in light of this constitutional case law, it was considered advisable to
make several changes for this category too (the regulations for which contained
no restrictions in terms of the seriousness of the initial offence other than the
general principle of proportionality), in order to guarantee a proportionate authori-
sation rule in light of the rules on data retention as a whole (Article 2, Sec-
tions 113a and 113b of the Telecommunications Act-Draft):
firstly, this category will still only apply in future if the offence committed through
telecommunications has been completed. Offences through telecommunica-
tions which only reach the stage of attempt or for which criminal preparations
are merely made are no longer included in this category. However, if the of-
fence being investigated is extremely serious, it can warrant the collection of
traffic data in accordance with the first sentence, point 1;
furthermore, the collection of traffic data on offences committed through tele-
communications in accordance with the second sentence of Section 100g (1)
of the Code of Criminal Procedure-Draft will still only be permitted in future if
there is no hope of investigating the facts or establishing the suspect’s where-
abouts without the traffic data. This strict secondary clause takes specific ac-
count of the principle of proportionality and is fitting because traffic data collec-
tion gains in intensity of intrusion as a result of the increase in data volumes
accompanying data retention and would therefore only appear to be warranted
for this category if there are no other (permissible) investigation methods or if
they are highly unlikely to be successful (cf. definition of futility and interplay of
various secondary clauses in Schäfer, ibid, Section 110a, paragraph 30 f.). In
future, therefore, it will be necessary to establish on a case-by-case basis if al-
ternative investigation methods are available or if traffic data collection is the
only practicable and, at the same time, proportionate method. In numerous
cases (e.g. telephone threats), equally suitable but less incriminating investi-
gation methods are often not available if there is no starting point for the inves-
tigation other than the time of the call. In such cases, which come under stalk-
121
ing crimes, traffic data collection is an indispensable investigation method,
generally because there is no alternative;
in addition, again in application of the principle of proportionality, this category
has been restricted by only permitting the collection of traffic data if it is in pro-
portion to the seriousness of the offence. As data retention involves a serious
infringement of constitutional rights, this should remove lighter crimes from the
scope of the data collection powers, even where there is no other way of in-
vestigating the offence. This is important, for example, in the case of one-off
minor offences of slander committed through telecommunications.
These restrictions on the grounds of proportionality will allow data retained under
Section 113a of the Telecommunications Act-Draft to be collected for both cate-
gories referred to in Section 100g (1). This is made clear by the reference in
brackets in sentence 1 to Section 113a of the Telecommunications Act-Draft.
This wording of data collection powers in Section 100g (1) of the Code of Criminal Pro-
cedure-Draft is in keeping with Article 1 (1) of the Data Retention Directive, requiring
the Member States to ensure that traffic data are retained for the purpose of the inves-
tigation, detection and prosecution of serious crime, as defined by each Member State
in its national law. Following the explanation of Article 1 (1) of the directive adopted by
the Council of Ministers of Justice and Home Affairs on 21 February 2006, the Member
States must take suitable account of the offences listed in Article 2 (2) of the Council’s
framework decision on the European Arrest Warrant (offences punishable by a custo-
dial sentence or detention order for a maximum period of at least three years) and of-
fences in which telecommunications systems are used, when defining the term “serious
crime” in their national law. Account is taken of these requirements in Section 100g (1)
of the Code of Criminal Procedure-Draft by linking it to extremely serious criminal of-
fences and/or offences committed through telecommunications, bearing in mind that
the term “serious crime” which appears in the English version of Article 1 of Directive
2006/24/EC has been translated (rather unhappily) in the German version as “schwere
Straftat”, but does not have the same meaning in the European context as the term
“serious crime” now used in Section 100a of the Code of Criminal Procedure-Draft.
Whereas, as far as punishment is concerned, a serious crime under Section 100a of
the Code of Criminal Procedure-Draft generally requires a custodial sentence of at
least five years (cf. explanations on Section 100a (1) of the Code of Criminal Proce-
dure-Draft), this term is generally used in European legal acts to define offences which
122
generally only qualify as administrative offences or minor offences, due to the fact that
not all the Member States have finished downgrading what previously qualified as
criminal conduct to administrative offences, a procedure which has already been com-
pleted in German law. The term “serious crime” should therefore be translated in the
European legal context as “ernsthafte Straftat”, rather than being associated with ex-
tremely serious crime.
This is illustrated by comparing with other legal acts in the European judicial area:
For example, under Article 99 (2) (a) of the Schengen Implementation Convention, an
alert can only be issued for “extremely serious criminal offences”, which has been
translated into the German version as “außergewöhnlich schwere Straftat”; however, it
is undisputed that this is not to be understood as “very serious crime” within the mean-
ing, for example, of Articles 13 (3) of the Basic Constitutional Law or Section 100c of
the Code of Criminal Procedure. It is clear from the regulation in Section 163e of the
Code of Criminal Procedure that German legislation classifies “extremely serious crimi-
nal offences” as “Straftaten von erheblicher Bedeutung”.
The European Commission assumes within the meaning of European law that a seri-
ous crime has been committed if it is punishable by a custodial sentence of at least one
year. This is clear, for example, from the Commission’s explanations on the European
Arrest Warrant, which can be issued if a serious crime has been committed: “Its pur-
pose is to replace lengthy extradition procedures with a new and efficient way of bring-
ing back suspected criminals who have absconded abroad and for people convicted of
a serious crime who have fled the country.” (cf.
http://ec.europa.eu/justice_home/fsj/criminal/extradition/fsj_criminal_extradition_en.htm).
Under Article 2 (1) of the Council Framework Decision on the European Arrest Warrant
and the surrender procedures between Member States of 13 June 2002
(2002/584/JHA, OJ L 190 p. 1), a European Arrest Warrant may be issued for acts pun-
ishable by the law of the issuing Member State by a custodial sentence or a detention
order for a maximum period of at least twelve months or, where a sentence has been
passed or a detention order has been made, for sentences of at least four months.
As a result, Section 100g (1) of the Code of Criminal Procedure-Draft makes provision,
in light of the above points, for no threshold below “serious crime”. For the rest, it
should be borne in mind that Article 1 of Directive 2006/24/EC does not specify a
threshold for access to retained data, merely outlining the purpose of the directive. The
123
question of access to retained data is in fact addressed in Article 4 of the directive,
which leaves the regulation of access to the laws of the Member States, merely requir-
ing the relevant provisions of European Union law or public international law and the
need for necessity and proportionality to be complied with. Particular account is taken
of this in the wording of the collection powers predicated on the principle of proportion-
ality in Section 100g (1) of the Code of Criminal Procedure-Draft. Nor does this conflict
with the requirements of the Cybercrime Convention, Article 15 (1) of which also ex-
pressly requires domestic law to incorporate the principle of proportionality.
6. Section 100g (1) of the Code of Criminal Procedure-Draft does not include the possibil-
ity of traffic data being preserved by the person or agency at which they are stored, as
required under Article 16 (2) of the Cybercrime Convention (“quick freezing”), such a
regulation having been rendered obsolete mainly by the fact that the Data Retention Di-
rective is being transposed at the same time. The data which would have been “frozen”
on the basis of such a storage order will already be preserved in future on the basis of
the compulsory storage provided for in Section 113a of the Telecommunications Act-
Draft (article 2 of this law), insofar as they are regularly requested for the prosecution
purposes. Moreover, the emergency powers of the prosecuting authorities (Sec-
tion 100g (2), in conjunction with the second sentence of Section 100b (1) of the Code
of Criminal Procedure-Draft) means that traffic data can be accessed at very short no-
tice, thereby preventing the service provider from deleting them.
However, if (and some consideration was given to this during discussions of legislative
policy, although it was not provided for in the draft for the reasons explained under
point 5 and the practical reasons explained below) the collection of traffic data retained
solely on the basis of Directive 2006/24/EC was provided for only in the case of ex-
tremely serious criminal offences or only for serious offices within the meaning of Sec-
tion 100a (1) point 2 and (2) of the Code of Criminal Procedure-Draft, the possibility of
a retention order based on Article 16 of the Cybercrime Convention would have to be
created for other offences, especially offences which were committed through tele-
communications but which did not exceed the required threshold in terms of serious-
ness. That is because, under Article 14 (2) (b) of the Convention, the powers and pro-
cedures provided for therein (including the preservation order provided for in Article 16
and the collection powers specified in Article 17 for the competent authorities) must
also be provided for the offences outlined in Articles 2 to 11 of the Convention (which
include, for example, offences in connection with infringement of copyright and related
property rights, Article 10 of the Convention) or offences committed through a computer
124
system (and hence regularly through telecommunications). Restricting the collection of
retained traffic data to extremely serious criminal offences would (depending on the
specific wording of the legislation) result in (technical and possibly costly) juxtaposition
(e.g. as a result of separate storage systems) or in a complicated overlap of data reten-
tion and preservation orders. It would appear proper to avoid this juxtaposition or over-
lap, which would probably also be more costly when put into practice by service pro-
viders, in that access to retained traffic data is also permitted in principle for offences
committed through telecommunications, but collection powers have been worded more
narrowly than previously. The changes described above (secondary and special pro-
portionality clause, exclusion of attempt and preparation) take account of this.
Re: Section 100g (2) of the Code of Criminal Procedure-Draft
The express regulation in (old) Section 100g (2) of the Code of Criminal Procedure on speed
dial searches, which is used to establish from which (unknown) terminal a connection was
established to a specific (known) terminal by comparing all the service providers’ incoming
traffic data sets over a specific period of time has been deleted:
firstly, in future service providers providing telecommunications services to the public will
have to store the telephone numbers of incoming calls which they process (cf. Article 2
point 5 − Section 113a (2) point 1 of the Telecommunications Act-Draft), so that they too
can be generally investigated in future without the need for a speed dial search;
secondly, on the rare occasions when they might still be needed in future, speed dial
searches will still be possible on the basis of the general traffic data collection powers
under Section 100g (1) of the Code of Criminal Procedure-Draft, which also allows speed
dial searches to be ordered. A special regulation within the meaning of (old) Section 100g
(2) of the Code of Criminal Procedure with higher permissibility preconditions is no longer
needed for these rare occasions, especially as the Federal Constitutional Court has since
ruled that traffic data comparisons during the course of a speed dial search only infringe
the communications secrecy of the persons notified to the prosecuting authorities as “hits”
and that speed dial searches do not affect the subjective rights of the other people (cf.
BVerfGE 100, 313, 366; 107, 299, 328).
Paragraph (2) has been reworded and includes a comprehensive reference to Section 100a
(3) and Section 100b (1) to (4), first sentence, of the Code of Criminal Procedure-Draft,
thereby harmonising procedural regulations governing traffic and content data investigations.
125
This takes account of the fact that real-time collection of traffic data now comes under Sec-
tion 100g (1) of the Code of Criminal Procedure-Draft. This harmonisation of procedural
regulations on Sections 100a, 100b and 100g (1) of the Code of Criminal Procedure-Draft
structures the regulatory content of these provisions more clearly and makes the technical
aspects of the regulations much simpler, thereby enhancing legal certainty and, hence, the
legal protection of the persons affected.
The first sentence achieves the following:
the reference to Section 100a (3) of the Code of Criminal Procedure-Draft replaces the
regulatory content of the second sentence of (old) Section 100g (1) of the Code of Crimi-
nal Procedure (targets of the measure);
the reference to Section 100b (1) of the Code of Criminal Procedure-Draft replaces the
reference to Section 100b (1) of the Code of Criminal Procedure in the first clause of the
third sentence of Section 100h (1) of the Code of Criminal Procedure (jurisdiction to issue
orders) and to the fourth and fifth sentences in Section 100b (2) of the Code of Criminal
Procedure in the second clause of the third sentence of Section 100h (1) of the Code of
Criminal Procedure (duration of measure). As with telecommunications monitoring, the du-
ration of traffic data collection ordered in future has been reduced to two months (fourth
sentence of Section 100b (1) of the Code of Criminal Procedure-Draft). If, on the other
hand, information is requested on past traffic data, all traffic data in the service provider’s
possession must be provided (as in the old law), without any limitation in time. This also
applies, as the reference in brackets in the first sentence of paragraph (1) to Section 113a
of the Telecommunications Act-Draft clarifies, to data retained under the Telecommunica-
tions Act;
the reference to Section 100b (2) of the Code of Criminal Procedure-Draft replaces the
reference to the first and third sentences of Section 100b (2) of the Code of Criminal Pro-
cedure in the first sentence and in the first clause of the third sentence in Section 100h (1)
of the Code of Criminal Procedure (form and content of the order);
the reference to Section 100b (3) of the Code of Criminal Procedure-Draft is needed be-
cause Section 100g (1) of the Code of Criminal Procedure-Draft no longer refers to com-
pulsory information and reference is therefore needed to the compulsory assistance re-
quired of service providers regulated in Section 100b (3) of the Code of Criminal Proce-
dure-Draft. At the same time, this makes the reference to Section 95 (2) of the Code of
126
Criminal Procedure in the first clause of the third sentence of Section 100h (1) of the Code
of Criminal Procedure superfluous (means of ordering and forcing service providers who
refuse to provide assistance), because this is already included through the reference to
Section 100b (3), which in turn refers to Section 95 (2);
the reference to the first sentence of Section 100b (4) of the Code of Criminal Procedure-
Draft replaces the reference to the first sentence of Section 100b (4) of the Code of Crimi-
nal Procedure in the second clause of the third sentence of Section 100h (1) of the Code
of Criminal Procedure (termination of measure if preconditions to order no longer apply).
The express obligation to advise the court and the telecommunications service provider
ordered to provide information on future telecommunications connections of termination of
the measure in the second clause of the third sentence of Section 100h (1) of the 2 Code
of Criminal Procedure, in conjunction with the second sentence of Section 100b (4) of the
Code of Criminal Procedure, has been deleted. The duty to notify the telecommunications
service provider already ensues from the first sentence of Section 100b (4) of the Code of
Criminal Procedure-Draft, because immediate termination of the measure presupposes
that the prosecuting authorities have asked the telecommunications service provider not
to transmit any further traffic data. Separate notification of termination of the measure to
the court, as under current legislation, would not appear to be necessary, because it does
not imply any clarification for the court. The additional information on telecommunications
monitoring which the court is entitled to receive in connection with progress in and the re-
sults of a telecommunications monitoring measure (second sentence of Section 100b (4)
of the Code of Criminal Procedure-Draft) is not required for traffic data collection and
would cause considerable additional work in practice;
the destruction rule previously applied through the reference in the third sentence of Sec-
tion 100h (1) of the Code of Criminal Procedure to Section 100b (6) of the Code of Crimi-
nal Procedure is now contained in Section 101 (10) of the Code of Criminal Procedure-
Draft.
The regulation on “radio cell scans” (whereby adequate identification of the telecommunica-
tion in space and time suffices in the case of an extremely serious criminal offence where it
would otherwise be impossible or much more difficult to investigate the facts), as previously
contained in the second sentence of Section 100h (1) of the Code of Criminal Procedure, has
been adopted in the second sentence of Section 100g (2) of the Code of Criminal Procedure-
Draft and the reference in the first sentence of paragraph (2) to point 2 in the second sen-
127
tence of Section 100b (2) of the Code of Criminal Procedure-Draft has been amended as a
result.
Following the controversy caused by a radio cell scan carried out in Schleswig-Holstein dur-
ing an arson investigation in 2005 (cf. Bizer, DuD 2005, 578), the following comments need
to be made:
This regulation on radio cell scans (only) negates the requirement which otherwise applies
during traffic data collection under the first sentence of Section 100g (2) of the Code of
Criminal Procedure-Draft, in conjunction with point 2 in the second sentence of Section 100b
(2) of the Code of Criminal Procedure-Draft, to give the telephone number or other identifier
of the connection or terminal to be put under surveillance, not the precondition under the first
sentence of Section 100g (2) of the Code of Criminal Procedure-Draft, in conjunction with
Section 100a (3) of the Code of Criminal Procedure-Draft, whereby the order to collect traffic
data must only be directed against the suspect or the suspect’s contact. It is true that traffic
data is commonly and unavoidably collected during a radio cell scan on third parties, viz. on
persons who, even though they are not the suspect or the suspect’s contact, communicated
in the radio cell using a mobile telephone at the stated time. However, under the unequivocal
regulation in the first sentence of Section 100g (2) of the Code of Criminal Procedure-Draft,
in conjunction with Section 100a (3) of the Code of Criminal Procedure-Draft, radio cell scans
must not be carried out in the aim of collecting traffic data on such persons. On the contrary,
it is not allowed to use a radio cell scan purely to find witnesses who have not even been
considered as contacts in the case in question. If, on the other hand, the aim is to collect traf-
fic data on the suspect or the suspect’s contact (even if their identity is not yet known), the
measure is permitted in principle, provided the other preconditions have been satisfied
(mainly that the reason for the measure is to solve an extremely serious criminal offence).
However, special account must be taken when verifying proportionality of the extent to which
third parties are affected by the measure, which may therefore need to be further limited in
time and space in specific cases on the grounds of proportionality or abandoned if such limi-
tation is not possible and the extent to which third parties are affected appears to be inap-
propriate. If, however, the measure is duly ordered and carried out, the data obtained during
it may be used both as the starting point for the investigation or in evidence, even if they af-
fect third parties.
128
Re: Section 100g (3) of the Code of Criminal Procedure-Draft
The regulatory content of (old) paragraph (3) (list of connection data within the meaning of
Section 100g of the Code of Criminal Procedure) has been deleted, because the first sen-
tence of Section 100g (1) of the Code of Criminal Procedure-Draft refers in connection with
the data collection which it regulates to the traffic data listed in Section 96 (1) of the Tele-
communications Act (cf. explanations on paragraph (1)).
The new regulation in paragraph (3) clarifies that traffic data must be collected on the basis
of general provisions (especially Sections 94 ff of the Code of Criminal Procedure), once the
telecommunication has been concluded, if it is collected other than under an information or-
der to the service provider (e.g. by securing items such as electronic data carriers or proof of
connections in hard copy which may provide information on traffic data). Section 100g (1)
and (2) of the Code of Criminal Procedure-Draft do not apply in this respect. This clarification
remedies the uncertainty occasionally caused by the judgment in chambers of the Federal
Constitutional Court of 4 February 2005 (2 BvR 308/04) on the question of which standards
apply for the purpose of confiscating data carriers used to store traffic data not in the custody
of the telecommunications service provider. A clear, user-friendly regulation is essential here
in order to give the prosecuting authorities a clear and practicable authorisation rule and in
order to safeguard the legal protection of affected parties otherwise (but no less) guaranteed
under Sections 94 ff of the Code of Criminal Procedure. This also satisfies constitutional im-
peratives, whereby the communication connection data stored under the control of the party
to the communication once the transmission procedure has been completed are not pro-
tected by Article 10 of the Basic Constitutional Law (cf. explicitly in BVerfG, 2 BvR 2099/04 of
2 March 2006, paragraph point 72 = BVerfGE 115, 166 et seq).
Re: Section 100g (4) of the Code of Criminal Procedure-Draft
Section 100g (4) of the Code of Criminal Procedure-Draft incorporates rules (in transposition
of Article 10 of Directive 2006/24/EC) on statistical reports on traffic data collection under
Section 100g (1) of the Code of Criminal Procedure-Draft which systematically link to Sec-
tion 100b (5) and (6) and Section 100e of the Code of Criminal Procedure (cf. individual ex-
planations on Section 100b (5) and (6) of the Code of Criminal Procedure-Draft).
129
Re: Section 100h of the Code of Criminal Procedure-Draft
The regulatory content of (old) Section 100h of the Code of Criminal Procedure has been
replaced by other provisions (cf. explanations above on the first sentence of Section 100g (2)
of the Code of Criminal Procedure-Draft):
the first sentence of Section 100h (1) of the Code of Criminal Procedure has been re-
placed by the reference to Section 100b (2) in the first sentence of Section 100g (2) of the
Code of Criminal Procedure-Draft (contents of order);
the second sentence of Section 100h (1) of the Code of Criminal Procedure regulating the
contents of orders for radio cell scans has been replaced by the regulation in the second
sentence of Section 100g (2) of the Code of Criminal Procedure-Draft;
the references in the third sentence of Section 100h (1) of the Code of Criminal Procedure
have been replaced by the references to Section 100b (1) to (4), first sentence, in the first
sentence of Section 100g (2) of the Code of Criminal Procedure-Draft. The reference to
the second sentence of Section 100b (4) of the Code of Criminal Procedure-Draft has
been deleted (cf. explanations above on Section 100g (2) of the Code of Criminal Proce-
dure-Draft). The destruction rule referred to hitherto through the reference to Section 100b
(6) of the Code of Criminal Procedure is now in Section 101 (10) of the Code of Criminal
Procedure-Draft;
Section 100h (2) of the Code of Criminal Procedure has been deleted in light of the gen-
eral and comprehensively valid rules on the protection of professional secrecy during in-
vestigation measures in Section 53b of the Code of Criminal Procedure-Draft;
the usage rule in Section 100h (3) of the Code of Criminal Procedure has been deleted in
light of the general regulation in the second and third sentences of Section 477 (2) of the
Code of Criminal Procedure-Draft.
The new regulatory content of Section 100h of the Code of Criminal Procedure-Draft is a
revised version of the provisions on the use of equipment previously contained in Sec-
tion 100f (1), (3) and (4) of the Code of Criminal Procedure, insofar as it is used for photog-
raphy and observation:
130
Section 100h (1) of the Code of Criminal Procedure-Draft has the same content as (old)
Section 100f (1) of the Code of Criminal Procedure. For editorial adjustments to the intro-
duction (“Whether or not with”), cf. statement of reasons on Section 100a (1) of the Code
of Criminal Procedure-Draft;
the first sentence of Section 100h (2) of the Code of Criminal Procedure-Draft has the
same content as the first sentence of (old) Section 100f (3) of the Code of Criminal Proce-
dure;
point 1 in the second sentence of Section 100h (2) of the Code of Criminal Procedure-
Draft has the same content as the second sentence of (old) Section 100f (3) of the Code
of Criminal Procedure;
point 2 in the second sentence of Section 100h (2) of the Code of Criminal Procedure-
Draft has the same content as the third sentence of (old) Section 100f (3) of the Code of
Criminal Procedure;
Section 100h (3) of the Code of Criminal Procedure-Draft has the same content as (old)
Section 100f (4) of the Code of Criminal Procedure and adopts the wording in Sec-
tion 163f (2) of the Code of Criminal Procedure for persons who are also affected (“third
parties” rather than “other persons”).
Re: Section 100i of the Code of Criminal Procedure-Draft
The rule in Section 100i of the Code of Criminal Procedure on the use of IMSI1 catchers,
which the Federal Constitutional Court ruled was constitutional in its judgment of 22 August
2006 (2 BvR 1345/03) has been revised in keeping with the first sentence, point 1, of Sec-
tion 100g (1) of the Code of Criminal Procedure-Draft, thereby integrating into Section 100i of
the Code of Criminal Procedure-Draft the material threshold of the need for an extremely
serious criminal offence already contained for observation equipment in point 2 of Sec-
tion 100f (1) of the Code of Criminal Procedure (now in the first sentence, point 1, and the
second sentence of Section 100h (1) of the Code of Criminal Procedure-Draft) and for
longer-term observation in Section 163f (1) of the Code of Criminal Procedure. At the same
time, this makes it possible to use IMSI catchers to assist an observation measure and to
prepare traffic data collection in accordance with Section 100g of the Code of Criminal Pro-
cedure-Draft. The new version gives a much more tightly-worded regulation. This also takes
account of complaints about the obscurity of the old Section 100i of the Code of Criminal
1
IMSI = International Mobile Subscriber Identity.
131
Procedure based on opinions formed in practice (cf. Albrecht, Dorsch and Krüpe, ibid, p.
204).
Paragraph (1) contains the material preconditions to the use of IMSI catchers: as in the first
sentence, point 1, of Section 100g (1) of the Code of Criminal Procedure-Draft, the authori-
ties must suspect, on the basis of specific facts, that an extremely serious criminal offence
has been committed or criminally attempted or that an offence has been committed in order
to prepare an extremely serious criminal offence and that the device or card number or the
location of a mobile telephone need to be established using an IMSI catcher in order to in-
vestigate the facts or establish the suspect’s whereabouts.
Paragraph (2) is the same as (old) paragraph (3).
The first sentence of paragraph (3), with its reference to Section 100a (3) and large parts of
Section 100b of the Code of Criminal Procedure-Draft, contains the procedural rules for or-
dering the use of and using an IMSI catcher:
the purpose of the reference to Section 100a (3) of the Code of Criminal Procedure-Draft
is to ensure that it is only used against the suspect and the suspect’s contacts;
the purpose of the reference to the first to third sentences of Section 100b (1) is to main-
tain the jurisdiction of the judge and the emergency powers of the prosecuting authorities
and to adopt the new usage regulation included in the second clause of the third sen-
tence of Section 100b (1) of the Code of Criminal Procedure-Draft;
it is clear from the reference to the first sentences of Section 100b (2) and (4) that use of
an IMSI catcher must be ordered in writing and that use must cease when the precondi-
tions to the order no longer apply.
The first and second sentences of paragraph (3) adopt a revised version of the regulation in
the second and third sentences of (old) Section 100i (4) on order deadlines.
The revised version of Section 100i of the Code of Criminal Procedure-Draft no longer explic-
itly mentions the admissibility of the measure for the purpose of self-defence by arresting
officers, as currently expressly provided for in the third sentence of the Section 100i (2).
Nonetheless, this possibility is retained: the use of an IMSI catcher in terms of self-defence is
used to determine the actual whereabouts of the suspect. This use is expressly mentioned in
the last clause of paragraph (1).
132
The duty of information requiring commercial telecommunications service providers to pro-
vide device and card numbers previously contained in the fourth sentence of Section 100i (5)
is also no longer expressly regulated in Section 100i of the Code of Criminal Procedure-
Draft. The powers to collect this information derive from general authorisation rules (Sec-
tions 94 et seq, 161 and 163 of the Code of Criminal Procedure), in conjunction with the duty
of telecommunications service providers to provide the information regulated in Sections 111
et seq of the Telecommunications Act.
The demands resulting from prosecution in practice for powers to collect location identifiers
(radio cell information) from telecommunications service providers for the purpose of prepa-
ration for the use of IMSI catchers have already been taken into account in the new regula-
tion in Section 100g of the Code of Criminal Procedure-Draft.
Section 100i of the Code of Criminal Procedure-Draft has been supplemented by the regula-
tions in Section 101 of the Code of Criminal Procedure-Draft which apply to all covert investi-
gations. The legal protection of persons affected has been enhanced in that the regulations
in Section 101 of the Code of Criminal Procedure-Draft safeguarding constitutional rights
also apply in full to the use of IMSI catchers, thereby introducing compulsory notification of
the target whose right to informational self-determination is affected by the measure. Insofar
as, because of how IMSI catchers function, data from third party mobile telephones are also
collected temporarily, technically processed and then re-eliminated by forming an intersec-
tion from the data from several recordings, there is some doubt as to whether there is any
intrusion in the rights of these third parties (cf. BVerfGE 100, 313, 366; 107, 299, 328). In any
event, the fact that the law makes no provision for (identifying and) notifying third parties also
affected does not give rise to any constitutional concerns (cf. BVerfG, 2 BvR 1345/03 of 22
August 2006, paragraph point 77).
Re: Section 101 of the Code of Criminal Procedure-Draft
Section 101 of the Code of Criminal Procedure-Draft brings together all the procedural regu-
lations for investigation powers under Sections 98a, 99, 100a, 100c, 100f to 100i, 110a and
163d ff of the Code of Criminal Procedure-Draft which were previously regulated separately
(and therefore with discrepancies between them) or which are needed additionally, for ex-
ample on the basis of constitutional imperatives. This provision contains uniform regulations
on compulsory identification (paragraph (3)), compulsory notification (paragraph (4)) and de-
133
ferral and verification thereof by the courts (paragraphs (5) to (8)) for all special covert meas-
ures, in keeping with the case law of the Federal Constitutional Court. Ex post facto legal
protection is granted (paragraph (9)), irrespective of the status of the person affected in the
proceedings, in order to strengthen the constitutional right to a hearing under Article 103 (1)
of the Basic Constitutional Law and the need to guarantee effective legal protection under
Article 19 (4) of the Basic Constitutional Law. A general rule requiring the deletion of per-
sonal data obtained from covert measures and no longer required is contained in paragraph
(10).
The content of (old) Section 101 (1) of the Code of Criminal Procedure and of (old) Sec-
tion 100d (8) and (9) (compulsory notification) has been transferred as it stands to (new)
paragraphs (4) to (8).
The content of (old) Section 101 (2) and (3) of the Code of Criminal Procedure needs to
be systematically brought under the rules on mail confiscation and has therefore been in-
serted in Section 100 (5) and (6) of the Code of Criminal Procedure-Draft.
The old regulation on keeping separate files in Section 101 (4) is now in Section 101 (2) of
the Code of Criminal Procedure-Draft.
Re: Section 101 (1) of the Code of Criminal Procedure-Draft
Paragraph (1) extends the scope of the following paragraphs to all covert measures, except
where individual aspects are regulated otherwise. This means that the following are encom-
passed by the regulations in Section 101 of the Code of Criminal Procedure:
database surveillance under Section 98a of the Code of Criminal Procedure-Draft;
mail confiscation under Section 99 of the Code of Criminal Procedure-Draft;
telecommunications monitoring under Section 100a of the Code of Criminal Procedure-
Draft;
acoustic surveillance of private premises under Section 100c of the Code of Criminal Pro-
cedure-Draft;
134
acoustic surveillance outside private premises under Section 100f of the Code of Criminal
Procedure-Draft;
traffic data collection under Section 100g of the Code of Criminal Procedure-Draft;
use of special equipment under Section 100h of the Code of Criminal Procedure-Draft;
use of IMSI catchers under Section 100i of the Code of Criminal Procedure-Draft;
use of undercover investigators under Section 110a of the Code of Criminal Procedure-
Draft;
dragnet searches under Section 163d of the Code of Criminal Procedure-Draft;
alerts under Section 163e of the Code of Criminal Procedure and
longer-term observation under Section 163f of the Code of Criminal Procedure-Draft.
Per contra, DNA analysis in the cases referred to in Section 81e of the Code of Criminal Pro-
cedure, to which compulsory notification applied under (old) Section 101 (1) of the Code of
Criminal Procedure, is not included (for criticism of this cf. Löffelmann, ZStW 118 [2006], p.
358, 367 in: Krekeler/Löffelmann, Legal commentary on the Code of Criminal Procedure,
Section 101 paragraph 1):
the case referred to in Section 81e (1) (molecular-genetic analysis of body cells removed
from a person) is not a covert investigative measure because, when the removal of body
cells is ordered for the purpose of DNA analysis, the person affected necessarily knows of
the measure. There is therefore no cause to apply the regulations governing covert inves-
tigative measures (especially the compulsory notification required under paragraphs (4) ff)
in such cases;
in the case regulated under Section 81e (2) of the Code of Criminal Procedure (molecular-
genetic investigation of an anonymous trace) the measure is not known to the person af-
fected (at least not initially), so that notification does not enter in it. If this person is identi-
fied from the DNA match, the results of the investigation will in any event be notified to the
person during the investigation procedure, as further enquiries (including interrogation) will
ensue.
135
Re: Section 101 (2) of the Code of Criminal Procedure-Draft
The rules contained in (old) paragraph (2) on the need to keep separate files for
acoustic surveillance of private premises under the fifth sentence of Section 100d (9) of
the Code of Criminal Procedure;
acoustic surveillance outside private premises under Section 101 (4), in conjunction with
Section 100f (2) of the Code of Criminal Procedure;
the use of observation equipment under Section 101 (4), in conjunction with Section 100f
(1) point 2 of the Code of Criminal Procedure and
the use of undercover investigators under Section 110d (2) of the Code of Criminal Pro-
cedure
have been adopted unchanged and an extension of the need for separate files to other cov-
ert investigative measures, in order to achieve a harmonious overall regulation, has been
dispensed with. The fact that there are separate files (especially once charges have been
preferred) restricts the right of inspection of files to a not inconsiderable degree. The need for
such a restriction, even with other covert investigative measures, has not been manifested or
proven in practice.
Re: Section 101 (3) of the Code of Criminal Procedure-Draft
Paragraph (3) stipulates that the personal data obtained from the measures referred to in
paragraph (1) must be marked as such. This corresponds to the regulation already intro-
duced on acoustic surveillance of private premises in Section 100d (7) of the Code of Crimi-
nal Procedure, which has been deleted following the new regulation in paragraph (3). Com-
pulsory marking is needed in order to safeguard proper use of data, in keeping with the rul-
ings of the Federal Constitutional Court (BVerfGE 100, 313, 360; 109, 279, 374, 379 ff) and
has therefore been extended to all specially regulated covert investigative measures, in that
all these measures (with the exception of mail confiscation) depend on the suspicion of of-
fences described in greater detail in the individual regulations and therefore trigger the appli-
cation of the restrictions on usage in Section 477 (2) of the Code of Criminal Procedure-
Draft.
136
Re: Section 101 (4) of the Code of Criminal Procedure-Draft
Paragraph (4) incorporates the compulsory notification in the first sentence of (old) Sec-
tion 101 (1) of the Code of Criminal Procedure and in other provisions (e.g. Section 100d (8)
and (9) of the Code of Criminal Procedure). They are now in one central place, detailed by
individual types of measure, in a revised version that takes account of the rulings of the Fed-
eral Constitutional Court (BVerfGE 109, 279, 366 ff).
The first sentence stipulates that the persons affected by the covert investigative measures
listed in paragraph (1) must be notified of the measure and lists the persons to be notified by
each type of measure. This takes account of the uncertainties which, according to the inves-
tigation by Albrecht/Dorsch/Krüpe (ibid, p. 470), result mainly from the fact that the terms
“person affected” in the second sentence of (old) Section 100b (1) of the Code of Criminal
Procedure and “person involved” in the first sentence of (old) Section 101 (1) of the Code of
Criminal Procedure are not very suitable as definition and delimitation criteria and, more to
the point, are of little practical help in determining who has to be notified. The list in the first
sentence should remedy this.
The compulsory notification in (old) Section 101 (1) of the Code of Criminal Procedure in the
case of measures under Section 81e of the Code of Criminal Procedure (DNA analysis)
has been deleted (cf. explanations on paragraph (1) above).
In the case of database surveillance under Section 98a of the Code of Criminal Procedure-
Draft, the persons affected by the database surveillance, who will be investigated further
once the data has been evaluated, must be notified. This corresponds to the identification
of the persons who must be notified in the fourth sentence of (old) Section 98b (4), in con-
junction with Section 163d (5) of the Code of Criminal Procedure.
In the case of mail confiscation under Section 99 of the Code of Criminal Procedure-Draft,
the sender and addressee of the mail confiscated must be notified. The term “addressee”
was chosen over the term “recipient”, which was also considered, in order to take account
of the fact that person to whom the mail was sent and who must be notified, did not re-
ceive the mail because it was confiscated.
In the case of telecommunications monitoring under Section 100a of the Code of Criminal
Procedure-Draft, the parties to the telecommunication under surveillance must be notified,
i.e. the persons who telecommunicated. This takes account of the fact that there has been
137
an intrusion in their telephone secrecy guaranteed under Article 10 of the Basic Constitu-
tional Law. This sort of intrusion generally (but not invariably) applies to the owner of the
connection being tapped and the suspect; if, however, these persons were not party to the
telecommunication in the instance in question, for example, because the owner of the
connection allowed another person to use it or just one telephone call between the contact
and a third party was tapped, there is no duty to notify either the owner of the tapped con-
nection or the suspect. This is without prejudice to any right to inspect the files which
might allow the suspect or his counsel to obtain knowledge of the measure.
In the case of acoustic surveillance of private premises using technical equipment under
Section 100c of the Code of Criminal Procedure-Draft, the persons to be notified under
the third sentence of (old) Section 100d (8) of the Code of Criminal Procedure (suspect,
other persons under surveillance and owner and occupants of private premises under
surveillance), up to the clarification in (c), has been adopted unchanged. The differentia-
tion between the owner and occupant of private premises already included in the third
sentence of Section 100d (8) of the Code of Criminal Procedure is based on the judgment
of the Federal Constitutional Court on the acoustic surveillance of private premises
(BVerfG, 1 BvR 2378/98 of 3.3.2004, paragraph point 295). The differentiation makes
sense if it is borne in mind that the owner of the private premises can also be a tenant
who does not live on the premises or who, (for example during the acoustic surveillance)
temporarily does not live there in person, without having relinquished his rights to the pri-
vate premises. Even where the communication of such an owner was not tapped and re-
corded during the acoustic surveillance of the private premises, his rights have still been
intruded upon as a result of the (generally secret) introduction of surveillance equipment
into the private premises.
In the case of acoustic surveillance with equipment outside private premises under Section
100f of the Code of Criminal Procedure-Draft, the targets (i.e. the persons under acoustic
surveillance) and persons also affected to a significant degree must be notified. The word-
ing “also affected to a significant degree” takes account of the fact that, because of the
range of such measures, a large number of persons may also be affected to a comparably
insignificant degree. For example, if a conversation is tapped between suspects in a park,
during the course of which individual “snippets” of bypassers’ conversations are also re-
corded, it would appear neither proper nor constitutionally necessary to notify these by-
passers of the measure. If, however, other persons join the suspects for a while, so that a
large part of their contribution to the communication is also captured, then the measure
138
also intrudes in their fundamental rights to a not insignificant degree, thereby giving rise to
a duty of notification in respect of these persons.
Where traffic data is collected under Section 100g of the Code of Criminal Procedure-Draft,
as with measures under Section 100a of the Code of Criminal Procedure-Draft, the per-
sons involved in the telecommunication in question must be notified. The above state-
ments on Section 100a of the Code of Criminal Procedure-Draft apply accordingly. Consti-
tutional rulings initially make the number of persons to be notified on merits of measures
which restrict telephone secrecy extremely large. In practice, however, the grounds for
exclusion contained in the third to fifth sentences of paragraph (4) will be particularly rele-
vant here.
Where special equipment is used under Section 100h of the Code of Criminal Procedure-
Draft (photography, observation equipment), the targets and the persons also affected to
a significant degree must be notified. The above statements on measures under Sec-
tion 100f of the Code of Criminal Procedure-Draft apply accordingly. The more extensive
notification in the case of photography (Section 100f (1) point 1 of the Code of Criminal
Procedure or Section 100h (1) point 1 of the Code of Criminal Procedure-Draft), compared
with the first sentence of Section 101 (1) of the Code of Criminal Procedure, is warranted
by the intrusion into the right to ones own image.
Where IMSI catchers are used under 100i of the Code of Criminal Procedure-Draft, the tar-
get must be notified and a new duty of notification has therefore been introduced. This is
needed on constitutional grounds, because measures under Section 100i of the Code of
Criminal Procedure-Draft intrude to a significant degree in the target’s right to informa-
tional self-determination. The exclusion of other persons affected by the measure takes
account of the fact that device and card numbers and the location of third party mobile
telephones collected temporarily under Section 100i (4) of the Code of Criminal Proce-
dure-Draft are only collected insofar as this is technically unavoidable; they are not to be
used over and above data comparison and they must be deleted as soon as the measure
ends.
Where an undercover investigator is used under Section 110a of the Code of Criminal Pro-
cedure-Draft, the targets and persons whose (not generally accessible) private premises
have been entered by the undercover investigator must be notified. As far as the owner of
the private premises is concerned, this corresponds to the old compulsory notification rule
during use of an undercover investigator in Section 110d (1) of the Code of Criminal Pro-
139
cedure, although provision must also be made to notify the target, because the use of an
undercover investigator may result in a high level of intrusion.
In the case of dragnet searches under Section 163d of the Code of Criminal Procedure-
Draft, the persons affected, who will be investigated further once the data has been
evaluated, must be notified. This corresponds to the circle of persons to be notified under
(old) Section 163d (5) of the Code of Criminal Procedure.
In the case of a police observation alert under Section 163e of the Code of Criminal Proce-
dure-Draft, the targets of the measure and the persons whose personal data are reported
must be notified. This is the first time compulsory notification has been introduced for this
measure. This would appear to be necessary in view of the intensity of surveillance (es-
tablishment of movement profiles) in individual cases. The “target” is the person against
whom the measure under Section 163e (1) of the Code of Criminal Procedure may be or-
dered, i.e. the suspect and his contact. Where a vehicle registration number alert can also
be ordered under Section 163e (2) of the Code of Criminal Procedure, the rule applies to
the registered keeper or user of the vehicle. Where the companions referred to in Section
163e (2) of the Code of Criminal Procedure are affected, because their personal data
have been reported, they too must be notified.
In the case of longer-term observation under Section 163f of the Code of Criminal Proce-
dure-Draft, targets and persons also affected to a significant degree must be notified. This
is the first time compulsory notification has been introduced for longer-term observation
measures. This is required in light of the constitutional implications of such measures (cf.
explanations on measures under Section 100f of the Code of Criminal Procedure-Draft for
a description of the circle of persons to be notified).
The second sentence stipulates that the possibility of ex post facto legal protection under
paragraph (9) and the deadline set for it must be pointed out during notification. This rule is
modelled on the second sentence of Section 100d (8) of the Code of Criminal Procedure, but
also corresponds to the caution enacted in the seventh sentence of Section 98 (2) of the
Code of Criminal Procedure and therefore effectively sets out the legal protection to which
persons concerned are entitled.
The third sentence stipulates that notification shall be dispensed with if this would be prejudi-
cial to the overriding interests of other affected persons which merit protection (e.g. of the
contact, or even of the suspect, for example if his conversation is recorded with a business
140
partner not involved in the offence). This requires conflicting interests to be weighed in each
particular instance, as a more far-reaching rule is not available.
The fourth sentence stipulates that notification may be dispensed with in the cases referred
to in the first sentence under point 2 (mail confiscation), point 3 (telecommunications monitor-
ing) and point 6 (traffic data collection) if one of the persons named, against whom the
measure was not directed, has only been affected by the measure to an insignificant degree
and it may be assumed that there is no need for notification. This rule takes account of the
fact that, although these measures regularly encroach on the constitutional rights of numer-
ous persons under Article 10 of the Basic Constitutional Law, the encroachment may in indi-
vidual cases be so comparatively insignificant that it can often be assumed that there is no
need for notification. In the case of mail confiscation (first sentence, point 2), this may be the
case where, for example, mailshots were included as a precautionary measure or inadver-
tently. In the case of telecommunications monitoring measures (first sentence, point 3) this
applies for example where conversations of no relevance to the prosecution dealing with rou-
tine matters are also recorded (e.g. appointments with workmen, telephone orders to delivery
services, complaints processed via call centres). The same applies to the collection of traffic
data (first sentence, point 6). It can commonly be assumed in such cases that, because of
the merely accidental and minor degree to which they are affected, the other party to the
communication has no interest in notification and the ex post facto legal protection under
paragraph (9) afforded through it. Predicating compulsory notification on the interests of
those affected also takes account, given the time, equipment and money required for com-
pulsory notification, of the need for prudent management of public funds and prevents ex-
cessive bureaucracy.
The rule in the fourth sentence is formulated as a discretionary provision rather than a man-
datory rule. This takes account of two aspects: firstly, even where a person was only affected
by the measure to an insignificant degree and it may be assumed that there is no need for
notification, there is no need to prohibit notification by law and, secondly, it may be more effi-
cient in individual cases for the prosecuting authorities to give notification than to have to
consider whether the degree to which they were affected exceeds the threshold of irrele-
vance and the pros and cons of notification. The optional rule in the fourth sentence therefore
accommodates practical aspects.
The fifth sentence applies to cases in which the identity of a person referred to in the first
sentence is not known, so that notification is only practically possible if the identity of the per-
son can first be established by additional enquiries. The Federal Constitutional Court has
141
indicated that additional enquiries to establish their identity might exacerbate the intrusion
into the constitutional rights of the target and of other persons involved and compulsory noti-
fication therefore depends in such cases on an appraisal of the circumstances on the basis
of the intensity of the intrusion and the cost of establishing the identity of the person affected
and the adverse effects this might have on the target and other persons involved (BVerfGE
109, 279, 364 ff). The fifth sentence adopts these rulings by the Federal Constitutional Court
by stipulating that additional enquiries to establish identity shall only be carried out where
warranted by the intensity of the intrusion of the measure and the cost of establishing the
identity of these persons and the adverse effects this might have on them or other persons. If
it is concluded from the appraisal required in each individual instance that no additional en-
quiries are needed, they and notification shall be dispensed with.
Re: Section 101 (5) of the Code of Criminal Procedure-Draft
Paragraph (5) contains a rule on deferred notification modelled on the rule to be repealed in
the fifth sentence of Section 100d (8) of the Code of Criminal Procedure.
The first sentence stipulates that notification must be given as soon as possible without jeop-
ardising the purpose of the investigation, the life, limb or personal freedom of a person or
important assets.
Deferred notification on the grounds of jeopardy to public security and the possibility of fur-
ther deployment of an investigating officer acting covertly has been abolished on the basis of
the case law of the Federal Constitutional Court (cf. BVerfGE 109, 279, 366 ff; BT-Drs.
15/4533, p. 19).
However, as regards the use of undercover investigators, the grounds for deferral of the pos-
sibility of further deployment of an undercover investigator have been adopted from current
law (Section 110d (1) of the Code of Criminal Procedure). The considerations of the Federal
Constitutional Court in its judgment on acoustic surveillance of private premises (BVerfG
109, 279 ff, (302 ff) do not prevent this. The Federal Constitutional Court found in its judg-
ment that the jeopardy to further use of an investigating officer acting covertly did not justify
deferring notification in the case of the acoustic surveillance of private premises. In this par-
ticular instance, however, this is neither a case of deferring notification in the case of the
acoustic surveillance of private premises nor the grounds for deferral of jeopardy to the fur-
ther use of a (police) officer acting covertly; it is a case of deferring notification of the use of
an undercover investigator so as not to jeopardise his further deployment.
142
These grounds for deferral are indispensable and sufficiently important to warrant restricting
compulsory notification. It takes a great deal of time, organisation and money to train under-
cover investigators, create their cover story and reach a point (which is not easy to repro-
duce) at which they can contact and infiltrate circles such as organised crime gangs and the
law needs to take account of this specific starting point. This has been achieved in the past in
a constitutionally acceptable manner in Section 110b (3) of the Code of Criminal Procedure,
which allows the identity of an undercover investigator to be kept secret even at the end of
his deployment. This secrecy would be practically impossible in the case of compulsory noti-
fication without exception. The grounds for deferral of jeopardy to the further use of an un-
dercover investigator adopted from Section 110d (1) of the Code of Criminal Procedure take
account of this consideration.
The grounds which might oppose maintaining this reason for deferral are not of equal weight:
use of an undercover investigator does not generally involve as intensive an intrusion on
constitutional rights as is generally the case with, for example, the acoustic surveillance of a
private premises. An undercover investigator entering a third party’s private premises can
only do so with the third party’s consent (Section 110c of the Code of Criminal Procedure).
Furthermore, under the new regulation on compulsory notification, the courts must establish
(if necessary repeatedly) whether the grounds for referral of jeopardy to the further use of an
undercover investigator apply (cf. Section 101 (6) to (8) of the Code of Criminal Procedure-
Draft), thereby providing an additional safeguard for the legal protection afforded the persons
affected. Taking all points of view together, there is clearly cause to maintain the grounds for
deferral of jeopardy to the further use of an undercover investigator.
The second sentence stipulates that deferral of notification on the grounds listed in the first
sentence must be placed on record. This fosters proper application of deferral regulations
and helps to ensure that the grounds for deferral can be tracked during verification by the
courts under paragraph (6).
Re: Section 101 (6) of the Code of Criminal Procedure-Draft
Paragraph (6) contains regulations on verification by the courts of the application of the
grounds for deferral listed in paragraph (5). The Federal Constitutional Court considers verifi-
cation by an independent agency to be indispensable in order to guarantee effective legal
protection of the persons concerned.
143
The first sentence therefore stipulates that deferral of notification in accordance with para-
graph (5) for more than twelve months, starting from when the measure ends, shall be sub-
ject to the consent of the courts. In the case of acoustic surveillance of private premises, veri-
fication by the court begins after six months (cf. special rule in the first clause of the fourth
sentence, which corresponds to the rule in the first sentence of (old) Section 100d (9) of the
Code of Criminal Procedure. Deadlines are calculated in accordance with the general rules
set out in Sections 42 ff of the Code of Criminal Procedure. The courts must establish
whether the grounds for referral listed in paragraph (5) apply and, if they do, consent to fur-
ther deferral. If the courts refuse their consent, notification must be given, unless the prose-
cuting authorities obtain the consent of the courts to deferred notification at appeal (Sec-
tion 304 of the Code of Criminal Procedure).
If the court consents to deferred notification, it must also establish the period of further defer-
ral (first clause, second sentence). This decision is left to the court’s discretion, but it must
estimate on the basis of the individual circumstances when notification is likely to be possi-
ble. However, in order to ensure the control of the courts can be exercised effectively, taking
account of all aspects of legal protection, deferral for more than another year is not usually
recommended other than in exceptional cases. In the case of acoustic surveillance of private
premises, individual deferrals may not exceed six months, as stipulated in the second clause
of the fourth sentence, which adopts the rule in the second sentence of (old) Section 100d
(9) of the Code of Criminal Procedure.
Deferral beyond the time set by the court is possible (second clause of second sentence),
but is again subject to the consent of the courts.
The third sentence contains a special rule, which takes account of practical requirements, for
cases in which several of the measures listed in paragraph (1) are carried out over a short
space of time, in which case, the period of deferral is calculated from the end of the last
measure. This rule is appropriate; before the final undercover investigative measure is com-
pleted, the grounds for deferral in paragraph (5) generally apply to prior undercover meas-
ures, especially the grounds of jeopardy of the purpose of the investigation.
The fourth sentence contains special rules on the maximum individual deferrals permitted in
the case of acoustic surveillance of private premises under Section 100c of the Code of
Criminal Procedure already explained for the first sentence.
144
Re: Section 101 (7) of the Code of Criminal Procedure-Draft
Paragraph (7) adopts a rule on the definitive abstention from notification based on Section 12
(1), third sentence, nos. 1 and 2 G 10. The precondition to this is that notification must al-
ready have been deferred for a total of five years and it is clear at the end of these five years
that the preconditions are unlikely (with a probability bordering on certainty) to apply in future,
in which case notification may be dispensed with definitively with the consent of the courts.
With careful verification of these preconditions, especially the prediction that the precondi-
tions are almost certainly unlikely to apply in future, the rule will probably not have a very
broad scope in practice. It has been included nonetheless in order to avoid burdening the
prosecuting authorities and the courts with continual verification of further deferrals in excep-
tional cases, when it is not expected that notification will take place in future in any case.
Re: Section 101 (8) of the Code of Criminal Procedure-Draft
Paragraph (8) stipulates that the court decisions required under paragraphs (6) and (7) must
be taken by the court with jurisdiction for the order, usually the district court in the place of
the public prosecutor’s office (Section 162 (1) of the Code of Criminal Procedure-Draft) or, in
the case of acoustic surveillance of private premises, the chamber of the district court stipu-
lated in Section 74a (4) of the Judicature Act. On the other hand, the special rule in the fourth
sentence of Section 100d (9) of the Code of Criminal Procedure requiring the Higher Re-
gional Court to rule on deferrals over 18 months, which is not absolutely necessary in order
to guarantee a constitutional procedure, has been left out in the interests of achieving rules
which are as uniform and harmonious as possible.
Re: Section 101 (9) of the Code of Criminal Procedure-Draft
Paragraph (9) stipulates that ex post facto legal protection must be afforded against the cov-
ert investigative measures listed in paragraph (1), most of which are highly intrusive. The
facility to demand ex post facto legal protection is an inalienable part of the constitutional
aspect of covert investigative measures. From a technical point of view, the regulation is
modelled on Section 100d (10) of the Code of Criminal Procedure (cf. BT-Drs. 15/4533,
p. 19), which has been repealed on the basis of the general rule in paragraph (9).
The basic function of the explicit regulation governing ex post facto legal protection in para-
graph (9) is to spare the person affected the burden of proof of the need for legal protection
without eliminating the legal remedy acknowledged hitherto (cf. Löffelmann, ibid, Sec-
tion 100d of the Code of Criminal Procedure, paragraph point 10). This means that, if he
145
finds out about it, a person affected by an ongoing covert investigative measure can always
obtain legal protection under the second sentence of Section 98 (2) of the Code of Criminal
Procedure. The same applies accordingly, taking account of the case law of the Federal
Constitutional Court, once the measure has ended but there is an interest, from the point of
view of legal protection, in establishing ex post facto if the measure was illegal. The question
of the preconditions to the need for legal protection keeps raising uncertainties in practice (cf.
on individual cases of confiscation: Nack, ibid, Section 98, paragraph point 24 et seq). How-
ever, it is acknowledged that there is a need for legal protection even after the measure has
ended where there has been a serious intrusion into constitutional rights. The covert investi-
gative measures covered by Section 101 of the Code of Criminal Procedure-Draft give rise to
significant intrusion into constitutional rights which is only permitted subject to special pre-
conditions. It is therefore fitting that the persons affected by such measures should be re-
lieved of the need to establish a specific need for legal protection and should be afforded
permanent access to the ex post facto legal protection granted under paragraph (9). As the
first sentence of paragraph (4) takes account of the degree to which they are affected when
establishing which persons should be notified, paragraph (9) refers to the circle of people
named in the first sentence of paragraph (4) for the purpose of stipulating who is entitled to
ex post facto legal protection.
The purpose of ex post facto legal protection is to examine the legality of the covert investi-
gative measure and of the way in which it was carried out. The finding by the court as to
whether the measure was legal or illegal includes no decision as to whether or not the infor-
mation obtained from it may be used, which needs to be judged by the ruling court in any
main proceedings. Nor does the law provide for any binding effect on the ruling court of the
decision taken in ex post facto legal protection proceedings as to whether the measure was
legal or illegal, even though this may be material to a ruling on whether or not the information
can be used. The failure to legislate any binding effect is justified on the grounds that the
aspects verified in ex post facto legal protection proceedings are different from the aspects
verified in proceedings on the use of information. Whereas the purpose of ex post facto legal
protection is to examine the legality of the order and method used for the measure, the ques-
tion of usage, which is the sole preserve of the ruling court, needs to take account of other
points of view which only arise once the measure has been ordered and carried out.
The ex post facto legal protection procedure generally only allows adjudication at one in-
stance by the court which issued the order and the court of appeal and clarification of the
often complicated issues of the legality or illegality of covert investigative measures by the
supreme courts is basically ruled out. On the other hand, an independent ruling on the usage
146
of information by the court ruling on the appeal or on points of law (which is not bound by
decisions during ex post facto legal protection proceedings) is subject to verification by the
higher and supreme judicature, which helps to clarify disputes and enhance legal certainty.
The first sentence stipulates that the persons affected (as listed by measure in the first sen-
tence of paragraph (4)) may also obtain legal protection once the measure has ended. This,
together with compulsory notification, takes account of the need to guarantee effective legal
protection (Article 19 (4) of the Basic Constitutional Law).
Referring to the circle of people who need to be notified on merits (i.e. irrespective of any
facility to dispense with notification on grounds of proportionality, adverse effects on third
party interests or the fact that their identity is unknown) also restricts the circle of persons
entitled to legal protection under paragraph (9). For example, where a telephone line is
tapped, in principle every party to the telecommunication tapped has to be notified on merits
in accordance with paragraph (4) (first sentence, point 3) and therefore has the possibility of
obtaining ex post facto legal protection under paragraph (9). Per contra, the suspect does not
have to be notified on merits, merely by reason of the fact that he is a suspect and does not
therefore qualify for legal protection within the meaning of paragraph (9) because, where a
contact’s telecommunication is tapped, the suspect is not necessarily party to the tapped
telecommunication.
From the point of view of time, the first sentence does not depend on notification having ac-
tually taken place. Legal protection can also be obtained if the person affected learns of the
measure in some other way. The two-week deadline set in the first sentence therefore only
applies as a cut-off date where notification has taken place, as the words “up to” make clear.
Consideration was given to waiving the limitation on legal remedy in keeping with the rule in
Section 98 (2) of the Code of Criminal Procedure. However, this was rejected because this
sort of time limit is needed in light of the deletion regulation included in paragraph (10) for
constitutional reasons. The Federal Constitutional Court found in its ruling on acoustic sur-
veillance of private premises that deletion should only be considered once the data are not or
are no longer needed for ex post facto verification of the legality of the measure by the courts
(BVerfG, 1 BvR 2378/98 of 03.03.2004, paragraph point 350). Unlimited legal remedy would
permanently stand in the way of deletion, even though deletion is required in principle on
constitutional grounds as and when the data collected are no longer required (BVerfG, ibid,
paragraph point 349). This conflict of objectives between the need to delete data, on the one
147
hand, and the need to preserve them for the purposes of legal remedy, on the other, can only
be properly resolved by limiting the possibility of legal remedy.
The second sentence stipulates that the court with jurisdiction for ordering the measure is the
court with jurisdiction for ruling on ex post facto legal protection. That is generally the district
court in the place of the public prosecutor’s office or, in the case of acoustic surveillance of
private premises, the chamber of the regional court named in Section 74a (4) of the Judica-
ture Act. This would appear to be appropriate, because ex post facto legal protection under
paragraph (9) makes up for the fact that covert measures make it impossible for the person
affected to have a legal hearing.
The third sentence allows verification of the decision returned by the court which issued the
order during ex post facto legal protection proceedings in the form of an immediate appeal.
Immediate appeal is also allowed against decisions by the investigating magistrate of the
Federal Court of Justice and the Higher Regional Court (cf. Section 304 (4), second sen-
tence, point 1 and (5) of the Code of Criminal Procedure-Draft).
The fourth sentence contains a special regulation on the jurisdiction of the courts, for reasons
of expediency and efficiency, where charges have already been preferred and the defendant
has been notified, to the effect that applications for ex post facto legal protection are heard
by the court which heard the case containing the decision closing the proceedings (e.g. the
judgment). If the application for ex post facto legal protection is made before charges are
preferred or the defendant is notified, this may result in a change of court with jurisdiction to
pass judgment.
Consideration was given to limiting the jurisdiction rule in the fourth sentence to cases in
which the defendant seeks ex post facto legal protection. However, this would have meant
that the court which issued the order would continue to have jurisdiction for applications for
legal protection from other persons affected, which would appear inadvisable from the point
of view of efficient procedure and to avoid divergent decisions.
Re: Section 101 (10) of the Code of Criminal Procedure-Draft
Paragraph (10) contains a more clearly edited version of the rule modelled on the (now re-
pealed) Section 100d (5) of the Code of Criminal Procedure on the deletion of personal data
obtained from one of the measures listed in paragraph (1) and no longer required.
148
The need for set deletion verification deadlines, such as those contained in Section 489 (4)
of the Code of Criminal Procedure was also considered. These were ultimately considered
unnecessary:
where personal data obtained from covert investigative measures are stored in files, the
deletion verification periods in Section 489 (4) of the Code of Criminal Procedure and
similar deadlines in other provisions (e.g. Section 32 (3) of the Federal Criminal Investiga-
tion Department Act) already apply, so that there is no need for additional regulation of a
deletion verification period in Section 101 (10) of the Code of Criminal Procedure-Draft;
where personal data obtained from covert investigative measures are stored in the case file,
on the other hand, the file is subject to continual verification by the processing depart-
ment. More importantly, once final judgment has been passed in the criminal proceedings,
verification must take place in order to determine if and which parts of the files and exhib-
its must be preserved, handed over or destroyed. There is no reason to assume that this
procedure is not sufficiently applied in practice.
Re point 12 (Section 110(3) of the Code of Criminal Procedure-Draft)
Section 110 of the Code of Criminal Procedure permits the perusal of data carriers in order to
determine whether they contain information of significance for the criminal proceedings and
thus whether seizure of the data carrier may be considered. This provision thereby makes it
unnecessary, for example, to seize extensive file archives suspected of containing a few
documents relevant in terms of evidence. The same idea applies to electronic data carriers.
Electronic data carriers, however, are also distinguished by the fact that the storage medium,
together with the equipment used to access it, need not form a single physical unit. Seizure
of the equipment used to access a storage medium, in itself, is therefore potentially pointless.
This spatial separation may, on occasion, mean that seizure of the storage medium – it may
also be necessary to establish the location of such a storage medium – only take place after
a considerable delay. From a legality point of view it is also not unproblematic to seize the
storage medium because of the danger posed by a delay, given the narrow definition of this
term by the Federal Constitutional Court (cf. BVerfGE [Collected Decisions of the Federal
Constitutional Court] 103, 142, 155 et seq.). This gives rise to a considerable danger of evi-
dence being lost, since data relevant as evidence after notice of perusal has been given –
which perusal is to be carried out in public (cf. Federal Court of Justice judgment of 31 Janu-
ary 2007 – StB 18/06) – may be deleted from the storage medium before it is possible to
seize the said medium. The new provision of Section 110(3) of the Code of Criminal Proce-
149
dure-Draft therefore permits the perusal of electronic data carriers to extend to physically
separate storage units - to which the affected party is entitled to maintain access - in order to
determine whether data relevant as evidence is stored thereon. Given that this course of ac-
tion is less intensive as a means of intervention than seizing the data carrier, this means that
the principle of proportionality has been especially satisfied. Data that is of potential signifi-
cance in an investigation may be stored, under sentence 2 of this provision, where there is
concern that it may be lost before the data carrier is secured. Such data stored must be de-
leted as soon as it is no longer required for criminal prosecution.
This power to pre-emptively back-up data is also in line with what is called for under Article
19(2) of the Convention on Cybercrime. Under the said paragraph, each party undertook to
adopt such legislative and other measures as may be necessary to ensure that where its
authorities search or similarly access a specific computer system or part of it and have
grounds to believe that the data sought is stored in another computer system or part of it in
its territory, and such data is lawfully accessible from or available to the initial system, the
authorities shall be able to expeditiously extend the search or similar accessing to the other
system.
Section 110(3) of the Code of Criminal Procedure does not permit covert online access to
access-protected data archives within the meaning of what is sometimes referred to as
“state-sponsored hacking” or a covert online search. Online access to publicly accessible
data archives that do not require any special access rights do not, on the other hand, require
any special basis for authorisation.
The fact that, under Section 110(3) sentence 1 of the Code of Criminal Procedure-Draft, the
party affected must be entitled to maintain access notwithstanding, this does not mean that
the measure would only be permissible where the affected party actually also grants the law
enforcement agency access. It is rather the case that this element of a search too is a meas-
ure that requires compulsory enforcement with respect to the affected party.
That being said, the regulation is not intended – as stated above – to permit covert online
searches. However, online searches could turn out to be covert measures of this nature in
respect of the parties in whose custody the data available online is stored. This is the case,
for example, in what are known as ‘teleworking’ jobs, where an employer allows employees
to access data stored at work from home. In such circumstances, the employee is not usually
entitled to grant this access to others with the effect that there is no entitlement to maintain
access as presumed under paragraph 3 sentence 1. The circumstances covered by para-
150
graph 3 sentence 1 are not to be viewed in the same way, however: in such cases the af-
fected party is free to determine whether he also wishes to make it possible for third parties
to access the data stored elsewhere. This will be the case, for example, if the affected party
has rented storage capacity accessible on-line from a suitable service provider. In such
cases the affected party is usually free to make access to the virtually stored data available
even to third parties. Section 110(3) of the Code of Criminal Procedure-Draft also covers
such cases and similar.
Re point 13 (Sections 110d and 110e of the Code of Criminal Procedure-Draft)
Re Section 110b of the Code of Criminal Procedure-Draft
Section 110d of the Code of Criminal Procedure is being deleted as what it regulated (notifi-
cation, keeping of separate files) is now contained in the general regulations of Section
101(2) and (4) to (8) of the Code of Criminal Procedure-Draft.
Re Section 110e of the Code of Criminal Procedure-Draft
The regulation on use under Section 110e of the Code of Criminal Procedure is being de-
leted; what was regulated therein is being replaced and supplemented by the general regula-
tions on use of Section 161(2) and Section 477(2) sentences 2 and 3 of the Code of Criminal
Procedure-Draft.
Re point 14 (Section 161 of the Code of Criminal Procedure-Draft)
Re point a (paragraph 2 - new)
The new paragraph 2 sentence 1 regulates the use of data obtained by means of other – that
is to say not criminal-procedural – sovereign measures. The notional starting point for this
provision is the idea of what is known as a hypothetical surrogate intervention. Where the
collection of data by means of criminal procedure-related measures is only permissible on
suspicion of certain criminal offences and where it is intended to use personal data obtained
through analogous measures under other Acts in criminal proceedings, such use for the pur-
pose of providing evidence is only permissible if it serves to clear up a criminal offence in the
light of which it would be permissible to arrange a measure of this nature under the Code of
151
Criminal Procedure. The provision generalises - in the sense of treating equally all investiga-
tive measures dependent on suspicion of certain criminal offences - the notion already laid
down under Section 100d(6) point 3 of the Code of Criminal Procedure (Section 100f(2) of
the old version of the Code of Criminal Procedure) in order to give due consideration to the
principle of use only for a designated purpose under data protection law. If the permissibility
of an investigative action is made contingent upon a legislative evaluation of the existence of
suspicion of certain criminal offences such powers permit regular, serious encroachments of
constitutionally-protected positions and in particular of people’s right to self-determination in
terms of their information. The legislative evaluation on which the obtaining of data is based
must also apply to the further use of that data for evidence purposes, by means of which the
original encroachment may in fact be extended (cf. BVerfGE [Collected Decisions of the
Federal Constitutional Court] 100, 313, 360; 109, 279, 375 et seq.). If data from comparable
measures under other legislation (such as the Police Acts or the legislation governing the
secret services) is introduced into the criminal proceedings, then this applies also to the use
of the said data in order to prevent circumvention of the strict conditions for ordering meas-
ures within the criminal process.
However, where the use of the data in criminal proceedings is not for evidence purposes but
rather as a further basis for investigation (basis for clues) or for the purposes of investigating
the residence of an accused party, these restriction do not apply. Lawfully obtained coinci-
dental information not relating to listed offences may, in accordance with the established
specialist case law endorsed by the Federal Constitutional Court, be exploited, but not for
evidential purposes – that is to say as part of the taking of evidence at trial (Section 243 et
seq. of the Code of Criminal Procedure) – although it may provide cause for further investiga-
tions to obtain new evidence (Federal Constitutional Court, 2 BvR [Constitutional appeal ref-
erence at the Federal Constitutional Court] 866/05 of 29 June 2005, NJW [Neue Juristische
Wochenschrift legal periodical] 2005, 2766 et seq., with supporting documents; cf. also the
explanatory comments and supporting documents to Section 477(2) of the Code of Criminal
Procedure-Draft). The said case law takes account, on the one hand, of the protection of
what can be called a fundamental right under Article 10(1) of the Basic Law, in that further
investigations are only deemed permissible in cases where the measure pursuant to Section
100a of the Code of Criminal Procedure was lawful, while on the other hand also taking ac-
count of the interest in having an effective administration of criminal justice.
Similar regulation, limited to measures pursuant to
• Section 98a (Search for criminals),
152
• Section 100f of the Code of Criminal Procedure-Draft (Section 100f(2) of the Code of
Criminal Procedure/ Section 100c(1) point 2 (old version) – Acoustic monitoring using tech-
nological equipment outside residences) and
• Section 110a of the Code of Criminal Procedure (Employment of undercover investiga-
tors)
was already envisaged under the draft Criminal Proceedings Amendment Act 1999 [German
designation: StVÄG 1999] (see Bundestag parliamentary papers 14/1484, p. 6, 23). How-
ever, the regulation in question was then deleted again in the Conciliation Committee
(Bundestag parliamentary papers 14/3525, p. 2). The case law of the Federal Constitutional
Court that has since evolved and the aim of harmonising the law on covert investigative
measures and improving the legal protection of affected parties mean that a regulation of this
nature is required.
Sentence 2 lays down that the special regulation on use for acoustic monitoring measures
set out in Section 100d(5) point 3 of the Code of Criminal Procedure-Draft remains unaf-
fected and consequently Section 161(2) sentence 1 of the Code of Criminal Procedure takes
precedence.
Re point b (paragraph 3 – new, hitherto paragraph 2)
In an editorial amendment, the term “information” in the existing paragraph 2 - which is being
re-designated as paragraph 3 - is being replaced by the term “data” in line with the prevalent
terminology in data protection law.
Re point 15 (Section 162 of the Code of Criminal Procedure-Draft)
Re paragraph 1
Paragraph 1 is being reformulated into a concentration regulation according to which the
public prosecutor must, in principle, make any applications for judicial investigations to the
local court in the district in which the public prosecutor’s office is based; if such an application
is made by a branch office of the public prosecutor’s office, the said branch office must make
the application to the local court in the district in which it is based. This regulation, which is of
153
practical significance, considerably simplifies the determination of the jurisdiction of the in-
vestigating court and speeds up what under the current legal arrangements is only possible
in proceedings in which multiple investigative actions are to be implemented. In this way it is
also possible to better safeguard the requisite provision of an on-call court service (cf.
BVerfGE [Collected Decisions of the Federal Constitutional Court] 100, 313, 401; 103, 142,
152; 105, 239, 248; 109, 279, 358; BVerfGK [Collected Decisions of the Chambers of the
Federal Constitutional Court] 2, 176, 179) since it is often impossible to ensure such a ser-
vice at reasonable cost in courts in smaller local court districts as a result of the prevalent
staff situation in such locations. By concentrating the competence it also possible to achieve
a bundling of competences specifically for the ordering of investigative measures with a
technical background and with it an improvement of the legal protection of affected parties.
Sentence 2 provides for exceptions to this concentration regulation for judicial interrogations
and inspections in order to expedite proceedings and in the interests of the affected parties
where the latter cannot be expected to travel to the local court district in which the public
prosecutor’s office is based (cf. Guidelines for criminal proceedings and civil penalty pro-
ceedings (German designation: RiStBV) point 4c, 19a). In view of this, a further exception
which would provide a competence in case of urgency to another court so that, in urgent
cases, there would also be a routine competence in case of urgency on the part of the public
prosecutor’s office or the investigative officers thereof, does appear necessary.
Special regulations that regulate the competence of the investigating court in a way deviating
from the general provision of Section 162 of the Code of Criminal Procedure(-Draft ) (such
as, for example, Section 125 of the Code of Criminal Procedure), will, as more specific regu-
lations, continue to take precedence over Section 162 Code of Criminal Procedure-Draft (cf.
Meyer-Gossner, loc. cit., Section 162, margin number 8).
Re paragraph 2
The current regulation under Section 162(2) of the Code of Criminal Procedure is being de-
leted as a result of the amendment of paragraph 1. The current paragraph 3 will therefore
become the new paragraph 2 and is undergoing editorial amendment to that effect.
154
Re point 16 (Section 163d of the Code of Criminal Procedure-Draft)
Re point a (paragraph 1)
The editorial consequential amendment of paragraph 1 sentence 1 point 2 takes account of
the new wording of Section 100a of the Code of Criminal Procedure-Draft.
Re point b (paragraphs 4 and 5)
The regulations on use under paragraph 4 sentences 4 and 5 are being deleted; what was
regulated therein is being replaced and supplemented by the comprehensive regulations on
use set out in Section 161(2) and Section 477(2) and (3) of the Code of Criminal Procedure-
Draft. The obligation to notify under paragraph 5 of the Code of Criminal Procedure is being
replaced by the general regulation of Section 101(4) to (8) of the Code of Criminal Proce-
dure-Draft.
Re point 17 (Section 163e of the Code of Criminal Procedure-Draft)
Re point a (paragraph 3)
Replacing the word “information” with the word “data” in paragraph 3 serves to harmonise the
terminology used within the Code of Criminal Procedure.
Re point b (paragraph 4)
Replacing the phraseology “the judge” with “the court” and “judicial” with “court” in sentences
1, 3 and 4 accommodates Section 1(2) of the Federal Equal Opportunities Act.
The reference in the existing text of sentence 6 to Section 100b(1) sentence 5 of the Code of
Criminal Procedure has been removed in order to improve readability. Similarly, the shorten-
ing of the extension deadline that keeping the reference on the basis of what has now been
regulated under Section 100b(1) sentence 5 of the Code of Criminal Procedure-Draft would
entail would not be appropriate, even for the tendering of police surveillance operations.
155
Re point 18 (Section 163f of the Code of Criminal Procedure-Draft)
Re point a (paragraph 3)
In order to ensure the effective preventative legal protection of those affected by longer-term
observation pursuant to Section 163f of the Code of Criminal Procedure, sentence 1 subjects
the ordering of measures of this nature to judicial authority. There remains a competence on
the part of the public prosecutor and the investigative officers thereof in case of urgency. Ju-
dicial authority is necessary in this respect with a view to the aim of harmonising covert in-
vestigative measures, since longer-term observation may be associated, in the individual
case, with material infringements of the right of the party affected to self-determination in
terms of their information and, with regard to the problems of the cumulative effect of investi-
gative measures (cf. Federal Constitutional Court, 2 BvR [Constitutional appeal reference at
the Federal Constitutional Court] 581/01 of 12 April 2005, paragraph 60 et seq., NJW [Neue
Juristische Wochenschrift legal periodical] 2005, 1338, 1341), in particular as a result of the
use of technical means (Section 100h(1) point 2 of the Code of Criminal Procedure-Draft,
Section 100f(1) point 2 of the Code of Criminal Procedure), since an intensity of interference
may obtain at which an order by the public prosecutor no longer seems sufficient. The order-
ing court, as guardian of the rights of the party affected, must also have notice of measures
of this nature which involve a high level of interference in order for it to be possible to take
account of the special subsidiarity clauses which contain the powers to implement covert
investigations. In practice, it is also readily possible for the court to order the measure given
that this may take place in the course of a short-term observation operation that is already
permissible on the basis of Sections 161 and 163 of the Code of Criminal Procedure and
that, in addition, there remains a competence to issue orders in case of urgency on the part
of the public prosecutor or the investigative officers thereof in exigent circumstances.
Sentence 2 lays down, in accordance with Section 100b(1) sentence 3 clause 1, that urgent
orders issued by the public prosecutor or the investigative officers thereof shall cease to be
valid if not confirmed by the court within three working days.
Sentence 3 replaces the existing paragraph 4 in that it states that Section 100b(1) sentence
3 clause 2, sentences 4 and 5 and (2) sentence 1 shall apply accordingly. This means that
− the personal data obtained as a result of an urgent order may not be exploited for evi-
dential purposes unless there are exigent circumstances (Section 100b(1) sentence 3
clause 2),
156
− the ordering of longer-term observation must be limited to a maximum of two months
(Section 100b(1) sentence 4),
− extensions of the order by not more than two months at a time are permissible if the
conditions of the order remain, taking into account the results obtained in the investiga-
tion (Section 100b(1) sentence 5), and
− the order must be made in writing (Section 100b(2) sentence 1).
Re point b (paragraph 4)
The rewording of paragraph 3 means that the regulations of the existing paragraph 4 are
superfluous, with the result that paragraph 4 is being deleted.
The obligation on the part of the public prosecutor’s office, or the investigative officers
thereof, under the previous sentence 1 to document the order and specify the material rea-
sons therefor is being abolished in light of the introduction of judicial authority under sen-
tence 1 of paragraph 3; the obligation to justify under Section 34 of the Code of Criminal Pro-
cedure is already in place for the judicial orders that will henceforth be required.
The specification, previously laid down in sentence 2, that a measure could only be extended
by the court is no longer needed as this is now covered by the judicial authority under para-
graph 3 sentence 1.
Re point 19 (Section 304 of the Code of Criminal Procedure-Draft)
The additions in Section 304 paragraph 4 point 1 and paragraph 5 stipulate that, in the case
of ex post facto legal protection pursuant to Section 101(9) of the Code of Criminal Proce-
dure-Draft, there is also the possibility of making an immediate appeal as provided for in sen-
tence 3 of the said paragraph against decisions and directions of the Higher Regional Court
or of the investigating judge at the Higher Regional Court or the Federal Court of Justice.
157
Re point 20 (Section 477 of the Code of Criminal Procedure-Draft)
Re point a (paragraph 2)
The re-formulation of paragraph 2 brings about a general regulation, through sentences 3
and 4 in particular, of the use across overlapping criminal proceedings of personal data ob-
tained from measures permitted only on the suspicion of certain criminal offences. The use of
information from measures of this nature in the same (main) criminal proceedings is not, on
the other hand, subject to the regulations of Section 477(2) of the Code of Criminal Proce-
dure-Draft which restrict the exploitation of such information. In particular, exploitation of
such information in the main proceedings does not mean that the suspicion of a listed crimi-
nal offence has not been confirmed. Information obtained in accordance with the law may, to
the extent that what is at issue is still the same crime in the sense of the proceedings at
hand, be exploited in the main proceedings – both as a basis for clues and as evidence –
both in respect of forms of crime other than the listed offence initially supposed and in re-
spect of other criminal offences and other accomplices (by way of illustration for information
obtained from a measure pursuant to Section 100a, cf. Meyer-Gossner loc. cit., Section
100a, margin number 14 et seq., with supporting documents; Allgayer, NStZ [Neue Zeitschrift
für Strafrecht criminal law periodical] 2006, 603 et seq., with supporting documents).
The draft envisages the following changes to the details in terms of the exploitation of data
across overlapping criminal proceedings, which is regulated by Section 477(2) of the Code of
Criminal Procedure.
The existing sentence 1 is being included unamended.
A special regulation on use is being introduced as the new sentence 2, whereby the use of
personal data, obtained on the basis of criminal procedure-related measures that are only
permissible on suspicion of certain criminal offences, as evidence in other criminal proceed-
ings is regulated. The concept of “hypothetical surrogate intervention” underlies this provi-
sion, which has its basis in the regulations of Section 98(3) sentence 3, Section 100b(5), the
old version of Section 100d(5), Section 100h(3) and Section 110e of the Code of Criminal
Procedure, which form a model for it, and in established specialist case law (BGHSt [Criminal
case reference at the Federal Court of Justice] 26, 298, 303; 27, 355, 358; 28, 122, 125 et
seq.; BGHR [Federal Court of Justice Reports] Code of Criminal Procedure Section 100a
Ban on the exploitation of information 4, 5, 10). In this regard, reference is made to the re-
marks on Sections 161(2) of the Code of Criminal Procedure-Draft.
158
What was hitherto further regulated under the existing sentence 2 has been included, in es-
sentially unaltered form, in the special regulation of use contained in sentence 3 points 1 and
2 and generally covered with a view to harmonisation with Section 161(2) and Section 477(2)
sentence 2 of the Code of Criminal Procedure-Draft. This makes it clear that any use, without
the consent of the persons affected, of the data referred to in sentence 2 to avert a significant
threat is only permissible if the said threat relates to public safety. Mere threats to public or-
der, even if they are significant, will no longer suffice in future. In addition, the restriction of
the regulation hitherto in place such that it applied only to personal data “identifiably” ob-
tained from the measures in question is being removed. The need to protect such data and
the limited use thereof cannot be dependent on the ability to identify the data. Moreover, the
ability to identify such data in this sense will in future be ensured by the labelling obligations
envisaged under Section 101(3) of the Code of Criminal Procedure-Draft.
Sentence 3 point 3 links in with the existing sentence 3 and stipulates that where personal
data obtained on the basis of criminal procedure-related measures that are only permissible
on suspicion of certain criminal offences is used, it may also be used for research purposes
in accordance with Section 476 of the Code of Criminal Procedure. The existing restriction,
according to which the object of an investigation must be one of the stipulations mentioned in
the current sentence 2 is being abolished since, in the light of the requirement set out in this
regard in Section 476(1) sentence 1 point 1 for passing on data for the purposes of research
in each given case, it adds no purposeful meaning on its own.
The rights, to which the party infringed by the criminal offence is entitled pursuant to Section
406e of the Code of Criminal Procedure, for files to be viewed by a lawyer and for the issuing
of information and copies from the files continued to be excepted from the restrictions on use
under sentences 1 to 3. The fact that the restrictions on use from Section 477(2) of the Code
of Criminal Procedure(-Draft) do not apply in this regard is, by contrast, a result of the exclu-
sive reference in Article 406e(6) to the regulation on designated purpose of Section 477(5) of
the Code of Criminal Procedure. In connection with the criminal offences that justify monitor-
ing measures pursuant to the Fiscal Code in terms of telecommunications monitoring that
have newly been included in Section 100a(2) point 2 of the Code of Criminal Procedure-Draft
there will in future exist the possibility, pursuant to Section 406e of the Code of Criminal Pro-
cedure, to also pass on to the competent tax authority for the purposes of the taxation proc-
ess information, such as from the telecommunications monitoring measures, should it come
to pass that it is legislated in the Fiscal Code that the use of data of this nature in the taxation
process is approved.
159
By also making reference to Section 100d(5) of the Code of Criminal Procedure-Draft, sen-
tence 4 makes clear that the special regulations, set out in the said provision, on the use of
personal data obtained from the acoustic monitoring of private premises override the general
regulation of Section 477(2) of the Code of Criminal Procedure-Draft, which is to say that
they represent a leges speciales to the said general regulation. The reference to Section 481
of the Code of Criminal Procedure previously contained in sentence 4 is being removed. One
reason for this is that the provisions of Section 481 of the Code of Criminal Procedure on the
use by the police authorities of personal information deriving from criminal proceedings are
applicable even without the reference formerly contained in the said Section. In addition,
Section 481(2) of the Code of Criminal Procedure refers to special regulations on use under
Federal legislation and thus also to Section 477(2) of the Code of Criminal Procedure-Draft
(on the uncertainties resulting from this in respect of the regulatory content of the non-
affection clause, see Wesslau in Systematischer Kommentar zur StPO [Systematic commen-
tary on the Code of Criminal Procedure], Section 477 Code of Criminal Procedure, margin
number 27, with supporting documents). The result of the removal of the reference to Section
481 of the Code of Criminal Procedure is a clear and coherent regulatory situation – the po-
lice authorities are permitted to use personal information from criminal proceedings in accor-
dance with the Police Acts (Section 481(1) sentence 1 of the Code of Criminal Procedure).
To this end, information of this nature may be passed on to them (Section 481(1) sentence 2
of the Code of Criminal Procedure). In the use, and thus also in the passing on, of such in-
formation, however, the specific Federal and Länder-level regulations on use – and there-
fore, in particular, also the limitation of use pursuant to Section 477(2) sentence 3 point 1 of
the Code of Criminal Procedure-Draft - must always be complied with (Section 481(2) Code
of Criminal Procedure).
Re point b (paragraph 5)
Replacing the word “information” with the word “data” in paragraph 5 serves to harmonise the
terminology used within the Code of Criminal Procedure.
160
Re Article 2 (Amendment to the Telecommunications Act)
Re point 1 (Section 97 of the Telecommunications Act-Draft)
Re point a (paragraph 3)
In pursuance of Directive 2006/24/EC, certain types of traffic data will, in future, have to be
stored for a certain period. The types of data in question and the length of storage are laid
down in Section 113a of the Telecommunications Act-Draft. Section 97(3) sentence 3 of the
Telecommunications Act-Draft makes clear that traffic data not covered by the storage obli-
gation under Section 113a of the Telecommunications Act-Draft must be deleted immedi-
ately. The new wording of sentences 2 and 3, implemented solely to provide a clearer lin-
guistic representation of the regulatory goal, means that it is necessary to update the refer-
ence contained in paragraph 3 sentence 4.
Re point b (paragraph 4)
The existing sentences 1 and 2 of paragraph 4 require deletion because they are contrary to
the provision of Section 113a(2) point 1 of the Telecommunications Act-Draft, which is being
introduced in order to transpose Directive 2006/24/EC, according to which telephone num-
bers and other line identifiers must in future be stored in an unabbreviated form. The subject
of the existing sentence 3 is the disclosure of the telephone numbers of incoming connec-
tions for which the subscriber called is liable to pay. This regulation has already been sys-
tematically and correctly included in Section 99(1) sentence 7 of the Telecommunications
Act-Draft, for which reason it should be deleted from Section 97(4) of the Telecommunica-
tions Act. A consequential amendment in the light of this is the deletion of sentence 4, which
means that the whole of paragraph 4 requires deletion.
Re point c (paragraphs 5 and 6)
This point represents a consequential amendment as a result of the deletion of paragraph 4.
161
Re point 2 (Section 99 of the Telecommunications Act-Draft)
Re point a (paragraph 1)
Section 99(1) sentence 2 of the Telecommunications Act-Draft makes clear that the sub-
scriber may choose for their itemised bill whether to be informed of the telephone numbers
called from his line for which he is liable to pay in an unabbreviated form or abbreviated by
deleting the last three digits A restriction to providing abbreviated telephone numbers seems
suitable, especially in cases of shared connections such as within households or undertak-
ings, to take appropriate account of both claims for reimbursement and elements of data pro-
tection law. By means of the reference to sentence 2 newly included in sentence 8 it is, how-
ever, made clear that this right to choose does not exist for subscribers to closed user groups
where service providers offer their services only to the subscribers to the said user group.
A statutory back-up regulation for cases where the subscriber fails to choose between the
above-mentioned alternatives does not, however – in contrast to what was originally thought
– seem to be necessary. Instead it should be ensured by means of the contractual arrange-
ments between the service provider and the subscriber that the latter makes a choice either
in favour of or against being informed of unabbreviated telephone numbers.
The amended references in paragraph 1 sentences 5 and 8 are editorial amendments bring-
ing the paragraph into line with the above-mentioned amendments. The other provisions of
paragraph 1 remain unaltered.
Re point b (paragraph 3)
The changes here are consequential amendments as a result of the amendments to para-
graph 1.
Re point 3 (Section 110 of the Telecommunications Act-Draft)
Re point a (heading)
The amendment of the heading has been occasioned by the fact that the provision of Section
110 of the Telecommunications Act is not limited to specifications on the technical implemen-
162
tation of monitoring measures. This will mean, for one thing, that parties obligated under this
provision are also required to implement certain precautionary organisational measures,
while it will also mean that the statutory authorisation under paragraph 2 will no longer apply
only to the implementation of monitoring measures but will now also cover the issuing of in-
formation.
Re point b (paragraph 2)
The extension of the statutory authorisation to also cover the laying down of regulations on
the issuing of information is necessary as a result of the power to collect traffic data in real
time under Section 100g(1) of the Code of Criminal Procedure-Draft. The laying down, in this
way, of the likes of technical and organisational adjustments that have been occasioned
cannot, given the necessary accuracy of details and technical form of the provisions, – just
as with the existing requirements in respect of the implementation of monitoring measures
that their regulation in the Order on monitoring telecommunications [German designa-
tion: TKÜV] – reasonably be effected by means of a formal Act are effected, but rather is to
be mandated to the issuer of the Order. A bringing into line of the contents of the Order on
monitoring telecommunications itself in this respect will, however, be left for a future amend-
ment.
Re point c (paragraph 8)
In the light of the new obligations to collect and pass on statistical data in connection with
telecommunications monitoring measures under Section 100b(5) and (6) of the Code of
Criminal Procedure-Draft, Section 110(8) of the Telecommunications Act is to be deleted,
since these obligations will in future be incumbent upon public bodies (the Länder, the Gen-
eral Federal Attorney, the Federal Office of Justice). The data to be captured is necessary in
order to attain reliable, established legal conclusions on the frequency of application of tele-
communications monitoring measures in the field of criminal prosecution and on the devel-
opment of this politically sensitive area and in order to prevent any potential cases of misuse
(cf. Bundestag parliamentary papers [BT-Drs.] 13/3609, p. 55 on Section 85(5) of the old
version of the Telecommunications Act). These statistics thus primarily serve the purposes of
national sovereignty with the effect that it is required for the data to be collected and for-
warded by public bodies (as Klesczewski also states in: Berliner Kommentar zum TKG [Ber-
lin Commentary on the Telecommunications Act], 2006, Section 110, margin number 67).
Making public bodies the parties upon whom these obligations are incumbent also means a
163
lightening of the burdens on the service providers, who were previously the obligated parties
in this regard.
Re point 4 (Section 111 of Telecommunications Act-Draft)
Re point a (paragraph 1)
The subdivision in paragraph 1 sentence 1 points 1 to 6 serves to provide a clearer layout;
points 1 to 4 and 6 largely represent the legal status quo, with only the extended collection
and storage obligations in respect of “other line identifiers” representing an increase to the
existing obligations. This extension takes account of the fact that, in today’s world, it is no
longer just telephone numbers that are issued but also – as is the case with DSL technology,
the uptake of which is currently rapidly increasing – other identifiers used to identify tele-
communications connections and there is therefore no longer a sufficient guarantee, for ex-
ample, that subscriber inventory data can be determined solely on the basis of stored tele-
phone numbers.
Point 5 constitutes an additional collection and storage obligation on the part of the service
provider. Under the said point, those service providers active in the field of mobile telecom-
munications will in future also have to capture and store the equipment identity numbers
(known as IMEIs) of the mobile devices given out by them with a mobile connection in order
for it to be possible to issue information pursuant to Sections 112 and 113 of the Telecom-
munications Act. The said information is indispensable in those cases where accused parties
make use of multiple mobile telephone cards with the result that connection-based data often
yield hardly any progressive information (cf. in this regard also Section 100b(2) sentence 2
point 2 of the Code of Criminal Procedure-Draft and the explanatory comments thereto).
The existing sentence 2 is being included unamended.
The new sentence 3 serves to transpose the provisions of Article 5(1) points (a)(2) and (b)(2)
of Directive 2006/24/EC and prescribes the storage of certain customer data, including in the
field of what are known as email accounts, insofar as the said data is in any case collected
by the email service provider for its own purposes. No obligation to collect such data is being
established.
164
The additions to sentence 4 (previously sentence 3) are consequential amendments of an
editorial nature bringing the text into line with the new sentence 3.
What was previously regulated under the existing sentences 4 and 5 has been transferred to
the new paragraphs 4 and 5 with no change in content.
Re points b and c (paragraphs 2 and 3)
These changes, in each case, are merely consequential amendments of an editorial charac-
ter.
Re point b (paragraphs 4 and 5)
In order to provide a clearer layout, the existing regulation of paragraph 1 sentence 4 is be-
coming paragraph 4 and the existing regulation of paragraph 1 sentence 5 is becoming
paragraph 5.
Re point 5 (Section 112 of the Telecommunications Act-Draft)
Re point a (paragraph 1)
The amendments to paragraph 1 sentences 1 and 2 of the Telecommunications Act-Draft are
editorial amendments bringing the paragraph into line with amendments contained in Section
111 of the Telecommunications Act-Draft.
Re point b (paragraph 3)
The rewording of paragraph 3 sentence 1 point 3 relates to the legal stipulations on the form
of the similarity function under the statutory Order under paragraph 3. The drawing up of a
draft of this statutory Order has shown up problems in connection with the existing provision,
according to which specific character sequences need to be established for the similarity
function and included in the search, which is otherwise exact to the bit. After implementing a
process of this nature, only pre-defined character sequences will be recognised as similar,
and not other things like similarities in names, mistypes or transposed letters. A viable simi-
larity function must also be able to evaluate the characters in the character string sought and
165
their position according to a scientific method that also takes account of error sources that
are typical of human data input.
This provision is now set out – much more clearly than before - in paragraph 3 sentence 1
point 3. What was previously regulated in the clause before point a is superseded by the
regulations of the new points b and c. Point a, and its current contents, remains in place.
What was previously regulated under point b is now to be found in exact replica in point d.
The provision in the existing point c in respect of the deletion of unnecessary data sets has
already been regulated to such a clear extent under paragraph 1 sentence 5 that there is no
need for a detailed regulation in the Order.
Re point c (paragraph 4)
Paragraph 4 sentence 4 re-writes in more detail the types of data to be recorded, for reasons
of better data protection, by the Federal Network Agency pursuant to Section 112 of the
Telecommunications Act [German designation: TKG] in the course of requests for inventory
data and provides supplementary regulation in terms of the details on the identification of the
person carrying out a search.
Re point 6 (Sections 113a and 113b of the Telecommunications Act-Draft)
Re Section 113a of the Telecommunications Act-Draft
Section 113a of the Telecommunications Act-Draft [German designation: TKG-E] serves as a
core regulation for the transposition of Articles 3, 5, 6, 7 and 8 of Directive 2006/24/EC, stipu-
lating those towards whom the obligations to store data are directed and the basic require-
ments of those obligations, specifying the types of data to be stored and the period of stor-
age and setting out requirements for handling the stored data and for deleting it. Since ac-
count is to be taken of a variety of technical conditions for the various telecommunications
services, paragraphs 2 to 4 specify the storage obligations laid down by the directive, broken
down according to the particular telecommunications services concerned. What does not,
however, emerge from this is the obligation on the part of the service providers to keep all
the data to be stored in the course of using the telecommunications service in question to-
gether in a common data bank. To that extent, it is left up to the service providers - within the
bounds of the current stipulations relating to data protection and data security – to store the
individual types of data according to their system structures and technical conditions in a
166
variety of data banks as long as this is not contrary to the requirement to provide information
without delay.
Re paragraph 1
Paragraph 1, sentence 1 describes those who are obliged to store data. According to this
sentence, it is those who provide publicly available telecommunications services to end users
who are obliged to store data, and there is no storage obligation for the non-public sphere
(for example, networks internal to companies, extension equipment or e-mail servers belong-
ing to universities and exclusively for the use of students registered there or of university
employees, and the telematics infrastructure in the health service). Sentence 2 makes it clear
that those service providers who do not operate their own telecommunications equipment but
who use that of other service providers and do not therefore themselves generate or process
traffic data are also obliged to store data. In this case too, the telecommunications service
provider has to guarantee that the data listed in detail in this regulation is stored. Such a ser-
vice provider shall, on request, demonstrate to the Federal Network Agency how he has ful-
filled his obligations to store data.
Sentence 1 also stipulates that the service providers concerned have only to store the data
referred to in Section 113a of the Telecommunications Act-Draft when such data is gener-
ated or processed by themselves when using the telecommunications service made avail-
able by themselves. This generally applicable stipulation makes it clear that the service pro-
viders are not obliged to store data that has been neither generated nor processed by them-
selves and that is therefore unavailable in their systems. In accordance with the directive,
this stipulation thus limits the individual storage obligations in paragraphs 2 to 4 to such data
as is available to those with obligations in the course of providing their telecommunications
service. In this way, as well as by focusing the storage obligation on the providers of tele-
communications services for end users in accordance with Section 3, point 8 of the Tele-
communications Act, the multiple storage of data of the same kind should largely be avoided
and expenditure for the party under an obligation kept as low as possible. That being said,
the concept of “processing” is to be understood in a broad sense and may also include cases
in which a mobile telephone network operator "takes over” the connection initiated by a sub-
scriber to another network operator and makes the connection with his own end user. This
too represents a (“further”) processing of traffic data transmitted by the other network opera-
tor within the meaning of this regulation. On the other hand, sentence 1 stipulates that, for
example, those network operators who do not provide telecommunications services of their
own but who only supply the transmission routes required for these are, subject to the regu-
167
lation in paragraph 6, not obliged to store the data transmitted by other service providers via
the transmission routes supplied.
Sentence 1 also stipulates the period of storage. The data described in detail in Section 113a
of the Telecommunications Act-Draft is accordingly to be stored for a period of six months.
This corresponds to the minimum storage period provided for under Article 6 of Directive
2006/24/EC and to what is required by the German Bundestag in its decision of 16 February
2006 (Bundestag parliamentary papers 16/545, p. 4). It is appropriate to limit the storage
period to the minimum required by the directive. Technically, this storage period appears to
be sufficient for guaranteeing the availability of the crucial data in response to far and away
the majority of enquiries (cf. Federal Office of Criminal Investigation [German designation:
BKA]: Legal, juridico-political and police-procedural management of the deficitary legal posi-
tion in connection with minimum storage periods for telecommunication connections data,
2005, p. 21 f.; Büllingen inter alia, International comparison of the status of, and prospects
for, data retention, 2004, p. 8). Moreover, this limitation on the minimum storage period re-
quired by the directive corresponds to the requirement for a transposition of the directive that
is as protective of fundamental rights as possible.
In order to guarantee that, in accordance with the requirement in Article 8 of Directive
2006/24/EC, the data can be made available to the competent authorities without delay, sen-
tence 1 also stipulates that the data shall be stored in Germany or in another Member State
of the European Union.
The purpose of data storage, namely to guarantee that the data referred to in Section 113a
of the Telecommunications Act-Draft is available, in particular, for the purposes of criminal
prosecution but also in order to offer protection against dangers and to enable the intelli-
gence services to fulfil their tasks, is apparent from the regulation on use in Section 113b,
sentence 1(1) of the Telecommunications Act-Draft. This makes an explicit regulation gov-
erning the purpose of the storage in Section 113a of the Telecommunications Act-Draft dis-
pensable.
Re paragraph 2
Paragraph 2, sentence 1 regulates the individual storage obligations of providers of publicly
available telephone services. In the context of these obligations, the technical realisation of
such services is insignificant and therefore also comprises concepts such as fixed network,
mobile telephone and Internet telephony. It is crucial for criminal prosecution authorities to
168
possess the data referred to in paragraph 2 in order for them to be able reliably to recon-
struct past telecommunications. Sentence 2 makes it clear that these storage obligations
correspondingly apply to text messaging (SMS), multimedia messaging services (MMS) and
similar messaging (for example, EMS) where, for lack of an existing connection, the time
data to be stored refers to the despatch and receipt of the message. Attention should be
drawn to the following considerations:
Point 1 transposes requirements in Article 5(1)(a), points 1 and 2, (b), points 1 and 2 and (e),
points 1, 2 and 3 of Directive 2006/24/EC and guarantees - even in the case of a call being
redirected or forwarded – the availability of the telephone numbers and other line identifiers
(including identifiers of lines in the field of Internet telephony that can be designated in ac-
cordance with a numbering plan other than the conventional E-164 numbering plan) required
in the field of telephony for the purpose of identifying the participants in the call.
Point 2 transposes requirements in Article 5(1)(c), points 1 and 2 of Directive 2006/24/EC
and ensures that it is possible to determine the precise time of a telecommunication that has
taken place.
Point 3 transposes requirements in Article 5(1)(d), points 1 and 2 of Directive 2006/24/EC
and concerns cases in which, within the framework of the telephone service, further services
can be used. In this case, information is also to be stored as to which service was used in the
telecommunication concerned (in ISDN, for example, speech, telefax or data transfer; in mo-
bile telephone services, for example, the despatch of short messages [SMS] or of multimedia
data [MMS]).
Point 4 describes special storage requirements for the area of mobile telephony and trans-
poses requirements in Article 5(1)(e), point 2 and (f), point1 of Directive 2006/24/EC.
According to letter a, the mobile subscribers’ international identifiers (what are known as
IMSIs) for the calling and the called line are to be stored;
According to letter b, the international identifiers for the calling and the called terminal
equipment (what are known as IMEIs) are to be stored;
According to letter c, the position data of the calling and the called lines at the start of the
connection – that is to say the specific designations of the cells through which the tele-
communications subscribers are enabled to make a connection – are to be stored. In
most cases, accurate conclusions may thereby be drawn about the area in which the
169
telecommunications subscribers were located at the time that the connection was made.
However, such conclusions concerning the presumed location of the subscribers may be
hedged about with uncertainties because of the imponderables that exist.
Pursuant to letter d, details of the time of the initial activation of the service, together with
the identity of the cell in which the mobile telephone was situated when the service was
activated, are to be stored when anonymous telephone services paid for in advance are
made use of. If such a pre-paid card, as it is known, is activated by means of a call using
the telecommunications service provider, this data is already intercepted in terms of
points 1, 2 and 4 letters a to c, with the result that, on the basis of this activation proce-
dure, letter d does not lead to any additional data storage. The adoption of letter d is
nonetheless advisable so that the requirements of the directive might still be complied
with in the event of any changes to this activation procedure. If the service is activated in
a manner whereby traffic data is neither generated nor processed, as may be the case
when an employee of the service provider enables the connection through immediate
online registration when the contract is concluded, this does not justify a storage obliga-
tion in accordance with paragraph 1(1). The regulation in letter d may also be largely ir-
relevant in Germany at present because there should be very little in the way of anony-
mous telephone services because of the already existing obligation under Section 111 of
the Telecommunications Act to collect available data.
Point 5 transposes requirements in Article 5(1)(a), point 2 and (b), point 2 of Directive
2006/24/EC and regulates, for the area of Internet telephony, the obligation to store the
Internet protocol addresses of the calling and the called line in order to make it possible to
determine the line to, or from, which the Internet telephone call was made.
Re paragraph 3
Paragraph 3 transposes requirements in Article 5(1)(a), point 2, (b), point 2 and – for the
purpose of being able to determine the time of transmission of a message – in (c), point 2 of
Directive 2006/24/EC and regulates the individual storage obligations for providers of publicly
available e-mail services. This data is indispensable for the purposes of tracing a telecom-
munication back by means of e-mail. The different ways in which the individual storage obli-
gations are set out in points 1 to 3 takes account of the special technical conditions of e-mail
communication, according to which e-mails are transmitted in various phases. What is to be
understood by access to the electronic mailbox pursuant to point 3 is the telecommunication
through which the e-mail customer opens the personal inbox page supplied to him by the e-
mail provider and listing the headers of the e-mails received, but not compulsorily the bodies
170
of the e-mails stored on the provider’s server. The same applies when the user downloads
the e-mail from an e-mail program onto his terminal equipment, since there is access to the
electronic mailbox in this case too. It is necessary also to store the Internet protocol ad-
dresses because a particular e-mail address transmitted can then be changed without much
effort or special technical knowledge, and many operators employ servers that do not check
the accuracy of this information, as a result of which it becomes impossible or, at least, con-
siderably more difficult to trace e-mails back.
Re paragraph 4
Paragraph 4 transposes requirements in Article 5(1)(a), point 2, (c), point 2 and(e), point 3 of
Directive 2006/24/EC and regulates the individual storage obligations of providers of Internet
access. It is crucial for investigative purposes that the data to be stored – Internet protocol
addresses pursuant to point 1, line identifiers (including identifiers of DSL lines) pursuant to
point 2 and time information pursuant to point 3 – be available if it is to be possible to recon-
struct to which line a particular Internet protocol address used for a particular Internet com-
munication was allocated at a particular time. It is important in this connection that the direc-
tive does not require any addresses called up on the Internet to be stored (URLs [Uniform
Resource Locators]). This information is not, then, the subject of the storage obligation pur-
suant to Section 113a(4) of the Telecommunications Act-Draft, as is also again made clear
by paragraph 8. It will not, then, become possible to reconstruct the overall “surfing behav-
iour” of Internet users on the basis of the Internet data to be stored, either.
Re paragraph 5
Paragraph 5 stipulates that traffic data concerning what are referred to as “unsuccessful call
attempts” only come within the storage obligation if the party under an obligation in any case
stores or keeps records of such attempts for his own purposes. This applies if a subscriber is
informed by his service provider via SMS that a call intended for his line was not received,
either because the line was engaged or because, at the time of the attempted call, the mobile
telephone was outside the supply area of a cell (in a “radio hole”). Service providers who do
not store such attempted calls are also under no obligation in accordance with Section 113a
of the Telecommunications Act-Draft. There is absolutely no storage obligation in those
cases in which the call setup has simply failed.
171
Re paragraph 6
Paragraph 6 stipulates that those service providers who, in supplying their telecommunica-
tions service, change the details that are to be stored in accordance with paragraphs 2 to 4
are obliged to store both the original details and the new details, as well as details of the time
at which the details were altered. This envisages a case in which a service provider with no
end-user connection of his own only makes available the technical facilities for forwarding a
telecommunication initiated by other service providers and, in the process, changes the traf-
fic data generated or processed by the other service providers and to be stored in accor-
dance with paragraphs 2 to 4. The requirement in paragraph 6 is necessary in order, on the
one hand, to be able to limit the fundamental storage obligation pursuant to paragraph 1 to
service providers with end-user connections and, on the other hand, nonetheless to guaran-
tee that the telecommunication can also be traced back if the relevant data is changed by an
intermediate service provider with no end-user connection. How the original data is changed
is, in this case, irrelevant. Usually, the alteration will consist in the original data being deleted
and replaced by other data (cf. Dammann, in: Simitis, Federal Data Protection Act, 6th edi-
tion, 2006, Section 3, margin number 141).
It does not, in this connection, matter whether the intermediate service provider is involved,
for example for technical or economic reasons, on the initiative of the service providers in-
volved in the supply of telecommunications services or whether he is involved at the instiga-
tion of the end user specifically with a view to altering the data to be stored in accordance
with paragraphs 2 to 4, as is the case with, for example, the use of anonymisation services.
In both cases, the storage obligation pursuant to paragraph 6 remains if the crucial data is
changed when the telecommunications service is supplied.
If a storage obligation is thereby justified also for the providers of anonymisation services,
account is to be taken of the fact that these service providers too supply publicly available
telecommunications services. By publicly available telecommunications services is meant all
telecommunications services within the meaning of Section 3, point 24 of the Telecommuni-
cations Act that are available to everyone. Pursuant to Section 3, point 24 of the Telecom-
munications Act, these include “pure” telecommunications services (that is to say, services
that consist exclusively in the transmission of signals via telecommunications networks), as
well as services of a dual character that, while coming within the legal framework for teleme-
dia, are also telecommunications services pursuant to Section 3(24) of the Telecommunica-
tions Act, because they consist predominantly in the transfer of signals via telecommunica-
tions networks. These are, in the first place, the services that contribute to both the provision
172
of Internet access and the transmission of electronic mail. That being said, anonymisation
services too evince a dual character of this kind, since their activity consists both in transmit-
ting the message and in replacing the exit identifier of the telecommunications user. These
services are therefore both telemedia and also – in view of their transport function – tele-
communications services for the public (cf. also, in this connection, Section 11(3) of the Tele-
Media Act [German abbreviation: TMG], also Schmitz in: Spindler/Schmitz/Geis, remarks on
the Teleservices Act [German designation: TDG], 2004, Section 1 of the Teleservices Data
Protection Act [German designation: TDDSG], margin number 16).
Re paragraph 7
Paragraph 7 transposes requirements in Article 5(1) (f), point 2 of Directive 2006/24/EC and
relates to network planning requirements of the mobile telephone network operators. It does
not, therefore, regulate the storage of traffic data. This information is required for the purpose
of allocating to specific geographical areas the cell designations that are to be stored pursu-
ant to paragraph 1, point 4, letter c and that are usually only presented in alphanumeric form
and, as such, are largely unusable for investigative purposes. Since these cell designations
are not allocated on a permanent basis by the service providers because of the developing
nature of network structures, and since – in the case, for example, of major events - further
cells are set up on a purely short-term basis, it is necessary to guarantee that, pursuant to
this provision, information can be obtained about the geographical allocation of cells for the
duration of the storage obligation. Information about the main radiation directions of the indi-
vidual radio antennae makes the requirement under the directive more specific and helps
make it possible more accurately to determine the location on the basis of which, or in rela-
tion to which, a telecommunications connection was set up.
Re paragraph 8
Paragraph 8 transposes the requirement in Article 5(2) of Directive 2006/24/EC and makes it
clear that neither the content of the communication nor data concerning the websites called
up may be stored on the basis of this regulation. This also takes on significance for services
in connection with which content in what is known as the signalling channel is transmitted (for
example, in the case of the transmission of [SMS] short messages in the mobile telephone
service). In this connection, the party under an obligation must ensure that, on the basis of
the provision in Section 113a of the Telecommunications Act-Draft, content-related parts of
the communication are not stored.
173
Re paragraph 9
The regulation in paragraph 9 transposes a requirement in Article 8 of Directive 2006/24/EC
and guarantees that the data is stored by the party under an obligation in a way that permits
effective and rapid research, enabling required information to be provided without delay.
Re paragraph 10
Paragraph 10 makes it clear that it is with the care required in dealing with data protected by
the secrecy of telecommunications that the party under an obligation is obliged to handle the
traffic data that is to be stored. This applies with a view both to being able reliably to store the
data correctly and in unaltered form and to protecting the data against unauthorised access.
With a view to increasing the level of protection, sentence 2 stipulates that the party under an
obligation shall ensure, by means of technical and organisational measures, that the stored
traffic data can only be accessed by specially authorised persons.
Re paragraph 11
Paragraph 11 stipulates that the traffic data stored pursuant to Section 113a of the Tele-
communications Act-Draft shall be deleted within a month of the end of the storage period.
This means that the efforts required of the service providers in terms of deleting data are
confined to a specific period, without the period for storing the data being excessively ex-
tended.
Re Section 113b of the Telecommunications Act-Draft
This provision regulates the use of that traffic data which is stored in accordance with Section
113a of the Telecommunications Act-Draft. Specifically:
Sentence 1 clause 1 stipulates that the service provider who is obligated to carry out storage
in accordance with Section 113a of the Telecommunications Act-Draft may transmit the data
stored in accordance with the aforementioned section for the purposes mentioned under
points 1 to 3 to the authorities responsible each time in this regard if, in the first instance, this
is provided for in the relevant Technical Act (e.g. Section 100g of the Code of Criminal Pro-
cedure) with reference to Section 113a of the Telecommunications Act-Draft and, secondly,
transmission is arranged in a particular case. Whether the competent authorities are entitled
174
to direct such a request to the service provider is not therefore the subject of the provisions
under Section 113b of the Telecommunications Act-Draft but is determined in accordance
with the specialist law provisions which are definitive each time for the competent authorities.
The competent authorities shall themselves assume responsibility for checking whether the
preconditions are in place for a transmission request. In this respect, the service provider has
neither an obligation nor the authority to conduct an examination as regards content. The
service provider must establish, however, whether the party requesting transmission is an
authority responsible for tasks mentioned in Section 113b of the Telecommunications Act-
Draft which is authorised to perform the transmission request. If the request is directed to-
wards the transmission of traffic data which has been stored solely in accordance with Sec-
tion 113a of the Telecommunications Act-Draft, the competent authority must be able to
prove its identity by means of an order in a particular case which is specified in more detail in
the respective Technical Act (for instance, a decision from an interlocutory court according to
Section 100g, in conjunction with Section 100b, of the Code of Criminal Procedure).
Pursuant to Section 113b sentence 1 clause 2 of the Telecommunications Act-Draft, the ser-
vice provider is not permitted to use the data stored solely in accordance with Section 113a
of the Telecommunications Act-Draft for purposes other than those mentioned in Section
113b sentence 1 clause 1 of the aforementioned Act.
Use of the data which is stored in accordance with Section 113a of the Telecommunications
Act-Draft for the purposes of prosecution, as well as for the purposes of averting threats and
fulfilling information service tasks, is in accordance with Directive 2006/24/EC. Although the
Directive only sets out requirements regarding the storage of data for prosecution purposes,
this does not, however, conflict with use of the stored data for other purposes. On the con-
trary, Member States are at liberty, within the limits of Article 15(1) of the Directive on privacy
and electronic communications (2002/58/EC), to lay down regulations in their national legis-
lation concerning the use of the stored traffic data for purposes other than prosecution.
The description of the scope of the Directive in Article 1(1) does not impede a more exten-
sive use of the stored traffic data. It cannot be deduced from this provision that use of the
stored traffic data for purposes other than prosecution is to be excluded. First of all, the as-
sumption of such a strict appropriation does not have any basis in the wording of the Direc-
tive. The Directive does not contain any regulation whereby the traffic data stored in accor-
dance with its stipulations should not be used either for purposes other than prosecution.
Such a regulation would be anticipated, however, if the aim of the Directive should be to
guarantee this. Such an intention cannot be inferred from the recitals either.
175
In addition, Article 11 of Directive 2006/24/EC, in conjunction with Article 15(1) of Directive
2002/58/EC, clarifies the fact that Directive 2006/24/EC merely lays down minimum
requirements pertaining to the use of traffic data stored “for retention purposes”. It follows
from the newly incorporated Article 15(1a) of Directive 2002/58/EC that Article 15(1) of this
Directive shall not be applied to that traffic data which is stored in accordance with Directive
2006/24/EC. At the same time, it is established that Article 15(1) of Directive 2002/58/EC
shall continue to apply to those uses which are not covered by Directive 2006/24/EC. Recital
12 of Directive 2006/24/EC provides particular corroboration of this.
The emergence of Directive 2006/24/EC also corroborates this understanding. In the
negotiations which have taken place at a European level, there was agreement that the
Directive (just like the Framework Decision which was discussed first) should only regulate
the storage of traffic data for prosecution purposes as a minimum stipulation without
excluding more extensive national regulations on the use of the stored traffic data for other
purposes. In the most recent document relating to the discussion of the draft Framework
Decision, provision was made for a specific regulation according to which certain national
areas of law and measures which are specified in detail should not be affected by the
Framework Decision. This would include, for instance, national legislation pertaining to the
“retention” of communication data for the purposes of averting threats and national security.
Such a specific, enumerative clarification was proposed in the proposal for a directive which
was put forward by the Commission on 21 September 2005 in favour of Article 11 of
Directive 2006/24/EC which is described above. However, the aim of this was not to bring
about a material change within the meaning of a strict appropriation of the stored traffic data.
Instead, during the entire negotiating process, it was a matter of importance for nearly all
Member States not to establish a definitive regulation but to clarify the fact that more
extensive national regulations governing use should be allowed to remain.
The use of the data stored in accordance with Section 113a of the Telecommunications Act-
Draft, which is authorised in Section 113b sentence 1 clause 1 points 2 and 3 of the same
Act, for the purposes of averting threats and fulfilling information service tasks is covered by
Article 15(1) of Directive 2002/58/EG, in conjunction with the provision referred to therein
under Article 13(1)(a) to (d) of Directive 95/46/EC on the protection of individuals with regard
to the processing of personal data and on the free movement of such data, since the use of
this data for these purposes is also necessary and appropriate. Likewise, with a view to
averting significant threats to public safety and fulfilling statutory information service tasks,
especially in the area of combatting international terrorism, a knowledge of the
176
communications behaviour of the individuals receiving this data is of indisputable benefit
from the point of view of determining tactics as regards clarifying the complex organisational
structures of criminal or terrorist organisations, for instance. These very reasons, which
justify the introduction of storage obligations for prosecution purposes (cf. in this regard A. VI.
5. above), are appropriate for justifying use of the stored data for the purposes of averting
threats and fulfilling information service tasks and, at the same time, were a reason for
adopting the directive, alongside the standpoint of the harmonisation of storage obligations
across the EU. Particular examples include the terror attacks which took place in Madrid in
2004 and in London in 2005. Without traffic data knowledge, it would be impossible, in many
cases, for the disaster control authorities and the information services to recognise
interconnections and correlations in the sphere of international terrorism and to effectively
repel the resulting dangers. Knowledge of traffic data from telecommunications service
providers is indispensable with regard to international terrorist groups which are very much
shielded from the outside world and carry out plots.
Furthermore, the use of the data stored in accordance with Section 113a of the Telecommu-
nications Act-Draft for the purposes of averting threats and fulfilling information service tasks
is in accord with the decision of the German Bundestag of 16 February 2006 (Bundestag
parliamentary paper 16/545, p. 4). This contains a request regarding utilisation of the stored
data only inasmuch as access to this data is to be limited, “for prosecution purposes”, to the
prosecution of important criminal offences or those perpetrated using telecommunications.
This decision does not otherwise cover data use, however.
For considerations of proportionality, it nevertheless appears necessary to limit utilisation of
the data stored solely in accordance with Section 113a of the Telecommunications Act-Draft
for disaster control purposes to averting significant threats to public safety and, therefore,
already stipulating in the Telecommunications Act that the respective specialist legislator
cannot justify having the power to access this data for averting any threats to public safety.
With regard to the jurisprudence of the German Federal Constitutional Court (cf. Collected
Decisions of the Federal Constitutional Court 65, 1, 46; 100, 313, 360), this restriction takes
into account, at the same time, the requirement for a sufficiently specific provision concerning
use regarding data stored “for retention purposes”. A corresponding restriction can be found
in the provision relating to the purpose-changing use of personal data which has been col-
lected in a certain manner in Section 477(2) sentence 3 of the Code of Criminal Procedure-
Draft. Regarding the concept of “significant threat”, refer in particular to Schmidtbauer in:
Schmidtbauer/Steiner, the Bavarian Police Functions Act and the Bavarian Police Organisa-
tion Act, 2nd edition (2006), Article 11 of the Police Functions Act, margin number 48.
177
Under sentence 2, the provision under Section 113(1) sentence 4 of the Telecommunications
Act shall be applied accordingly. This means that the service provider must observe secrecy
vis-à-vis his customers and third parties regarding the disclosure of information and therefore
assists in the fact that enquiries conduced surreptitiously are not made known prematurely.
Re point 7 (Section 115(2) of the Telecommunications Act-Draft)
The insertion of the reference to Section 113a of the Telecommunications Act-Draft in para-
graph 2 sentence 1 point 1 assists in ensuring that the storage obligations as per Section
113a of the aforementioned Act are fulfilled. The other changes constitute follow-up editorial
amendments in line with the changes in Section 111 of the Telecommunications Act-Draft.
Re point 8 (Section 149 of the Telecommunications Act-Draft)
Re letter a (paragraph 1)
Supplementing the circumstances which constitute breaches of the regulations in paragraph
1 by points 30a and 36 to 39, as well as the amendments to points 29 and 30, assist, on the
one hand, in transposing Articles 5 and 13 of Directive 2006/24/EC, according to which, both
the proper fulfilment of the storage requirements and those concerning deletion shall be en-
sured and provision made for deterring sanctions in order to prevent unauthorised access to,
and dealing with, data stored in accordance with the Directive. On the other, it involves con-
sequential editorial amendments in line with the changes in Section 111 of the Telecommu-
nications Act-Draft. The amendment to point 35 extends the existing circumstances which
constitute breaches of the regulations to cases where the service provider does not observe
secrecy regarding the disclosure of information concerning data stored in accordance with
Section 113a of the Telecommunications Act-Draft.
Re point b (paragraph 2)
By means of the supplement to paragraph 2, an appropriate regulatory fine is laid down relat-
ing to the individual circumstances which constitute breaches of the regulations according to
paragraph 1.
178
Re point 9 (Section 150(12b) of the Telecommunications Act-Draft)
Paragraph 12b sentence 1 postpones application of the circumstances which constitute
breaches of the regulations as per Section 149(1) points 36 and 37 of the Telecommunica-
tions Act-Draft to 1 January 2009. In this way, account is taken of the fact that the require-
ments arising from Section 113a of the Telecommunications Act-Draft shall not be trans-
posed immediately in relation to the obligated undertakings in the short term, but that certain
technical, organisational and other internal company measures are required to this end, the
specific form of which, in the view of the obligated undertakings, would often not be assessed
with the required certainty prior to the conclusion of the legislative process. For this reason, it
appears appropriate, on the one hand, to let the storage obligations for service providers
come into force immediately in the area of landline and mobile telephone networks but to
postpone the imposition of sanctions arising from these obligations for a period of one year.
This is also justifiable with regard to the obligation to transpose the requirements concerning
storage domestically, in accordance with the directive, since Directive 2006/24/EC does not
stipulate the imposition of sanctions with a view to ensuring storage obligations.
As regards the storage obligation concerning inventory data in the case of e-mail addresses
provided for in Section 111 of the Telecommunications Act-Draft, a corresponding transitional
regulation is not required. This obligation presupposes that the service provider is already
collecting the inventory data for his own purposes and will therefore already be storing this
data permanently at regular intervals.
Re Article 3 (Amendment to the Fiscal Code)
The provision under Section 370a of the Fiscal Code, which is introduced by means of the
Tax Reduction Prevention Act of 19 December 2001 (Federal Law Gazette I p. 3922) and
amended by the Fifth Act amending the Tax Inspectorate Training Act, and which amends
the tax laws of 23 July 2002 (Federal Law Gazette I p. 2715), should tighten up the criminal
nature of the tax evasion when the act is perpetrated for commercial gain or by a gang and
with a significant degree of success. In its decision of 22 July 2004 (5 StR 85/04, NJW [Neue
Juristische Wochenschrift] 2004, 2990), the 5th criminal division of the Federal Supreme
Court of Justice expressed considerable misgivings in the constitutionality of the provision.
Since criminal law in relation to tax offences within the framework of the blanket provision of
the law under Section 370 of the Fiscal Code is characterised by a serial approach when
179
committing crimes, the precondition contained in Section 370a of the Fiscal Code of “perpe-
trating acts for commercial gain” is not suitable in terms of adequately localising the elements
of the offence under Section 370a of the Fiscal Code. Also, the element of the offence “to a
large extent” is too indeterminate with regard to Article 103(2) of the Basic Law as the con-
stituent element of a crime. According to this, the provision under Section 370a of the Fiscal
Code would not satisfy the requirements of the Federal Constitutional Court, whereby a pe-
nal provision would have to be all the more precise the more onerous the penalty which may
be imposed.
Consideration should be given to these misgivings by means of the envisaged changes to
the Fiscal Code. At the same time, the discrepancies in classification, which the Federal Su-
preme Court of Justice has also taken exception to, relating to the criminal offences under
Sections 373 and 374 of the Fiscal Code are removed and consideration given to the particu-
lar seriousness of the punishable acts mentioned therein, especially when these acts have
been perpetrated by gangs. The criminal elements of the offence should also be clarified.
Re point 1 (Table of contents)
This is a consequential amendment relating to the deletion of Section 370a (cf. point 4).
Re point 2 (Section 370 of the Draft Fiscal Code)
A particularly serious case of tax evasion according to Section 370(3) point 1 of the Draft
Fiscal Code should generally already exist in future if taxes are underpaid to a large extent or
unjustified tax advantages are obtained. The characteristic of “gross self-interest”, which has
also been included hitherto, but which is difficult to quantify, is deleted (cf. regarding the diffi-
cult quantifiability by the Federal Supreme Court of Justice of 13 June 1985, NStZ [Neue
Zeitschrift für Strafrecht criminal law periodical] 1985, 459).
The new Section 370(3) sentence 2 point 5 of the Draft Fiscal Code stipulates that a particu-
larly serious case of tax evasion is also generally deemed to exist if the perpetrator has acted
as a member of a gang created for the perpetration of such acts on a continuing basis ac-
cording to Section 370(1) of the Fiscal Code, underpays turnover tax or excise duty or ob-
tains unjustified turnover tax or excise duty advantages. The sentencing rule replaces the
previous qualifying element (of the crime) in Section 370a of the Fiscal Code.
180
According to the decision taken by the Supreme Senate of the Federal Supreme Court of
Justice on 22 March 2001 (GSSt 1/00, BGHSt [Criminal case reference at the Federal Su-
preme Court of Justice] 46, 321), a gang consists of an amalgamation of at least three per-
sons who have acted intentionally in perpetrating, for a certain duration in future, several
separate criminal offences, the specifics of which are uncertain, of the type mentioned in the
Act (with tax evasion therefore included here). An “established gang volition“ or an act com-
mitted as part of an “overriding gang interest” is not required. Since the elements of tax eva-
sion as per Section 370 of the Fiscal Code may be committed by parties other than the tax
payer himself, e.g. other natural persons who do not have to act for their own benefit but also
for the benefit of third parties, any other participant may be considered a member of such a
gang even if they only have a secondary role as an accomplice, nor is it necessary that every
gang member has to be a tax payer. It is also unimportant, as far as the perpetration of acts
by gangs is concerned if, for instance, only one of the gang’s perpetrators is resident in Ger-
many since it does not have to involve a group of German individuals. Here too, however, as
regards the general requirement, it is still the case that, provided it is not a question of import
or export duties, the deed must relate to the tax revenue managed by the German treasury
(cf. Section 370(6) and (7) of the Fiscal Code). Since, in the event of tax evasion, the burden
(underpayment of the German tax claim) always falls to the German Treasury, i.e. the out-
come is always felt in Germany, it is unimportant as to whether the act constituting the of-
fence itself was committed abroad.
According to Section 370(3) of the Fiscal Code, the penalty in the event of particularly seri-
ous cases of tax evasion is imprisonment for a period ranging from six months up to ten
years. As before, self-accusation of tax evasion as per Section 371 of the Fiscal Code, which
exempts the individual in question from a punishment, is possible.
Re point 3 (Section 370a of the Draft Fiscal Code)
This provision is annulled. According to the new Section 370(3) sentence 2 point 5 of the
Fiscal Code, the evasion of turnover tax and excise duty by gangs now represents an exam-
ple of regulation for a particularly serious case of tax evasion.
Re point 4 (Section 373 of the Draft Fiscal Code)
181
As a result of the amendment to Section 373 of the Fiscal Code (along with that to Section
374 of the same), discrepancies in classification between turnover tax or excise duty evasion
perpetrated by gangs, on the one hand, and smuggling by gangs and the receipt of items on
which no tax has been paid, on the other, are eliminated. At the same time, consideration
should be given to the particular seriousness of these offences, especially when perpetrated
by gangs, by adapting the range of punishment for these offences in line with that under Sec-
tion 370(3) of the Fiscal Code.
Re letter a (paragraph 1)
By means of this amendment, the range of punishment for smuggling for commercial gain, or
where it has involved the use of force or gangs (which previously carried a custodial sen-
tence from three months up to five years) is increased (in future, the custodial sentence will
be from six months up to ten years) and thereby adapted in line with the range of punishment
for tax evasion in a particularly serious case as per Section 370(3) of the Fiscal Code. The
new sentence 2 stipulates that a reduced range of punishment (a custodial sentence of up to
five years or a fine) applies to less serious cases. This facilitates an appropriate punishment
for smuggling by gangs, e.g. in cases which cannot be attributed to typical organised crimi-
nality.
Re letter b (paragraph 2)
In order to arrive at a standard definition of the term “gang” in all instances of gang smug-
gling, even if this act concerns cases of customs violations which are regulated outside the
Fiscal Code, and also so as to avoid differentiations which are not called for in the matter
within the Fiscal Code (cf. Section 370(3) sentence 2 point 5 of the Draft Fiscal Code and
Section 374 of the same), paragraph 2 point 3 of the Draft Fiscal Code dispenses with the
previous characteristic concerning participation (“the act is carried out with the participation
of another gang member”). In future, it is sufficient that the perpetrator commits such an act
as a member of a gang created for the persistent evasion of import or export duties or cus-
toms violations. In future, the gang’s actions may also be directed at evading payment of
cross-border excise duties on a continuing basis.
Re letter c (paragraphs 3 and 4)
The specific provision concerning the attempt to commit offences, as contained in the new
paragraph 3, clarifies the fact that Section 373 of the Draft Fiscal Code represents a separate
182
qualifying element (of the crime) pertaining to Section 370(1) of the Fiscal Code. In future,
recourse to the attempt to commit offences as per Section 370(2) of the Fiscal Code will no
longer be required. A provision pertaining to particularly serious cases under Section 373 of
the Fiscal Code, or a reference to the range of punishments under Section 370(3) of the Fis-
cal Code, is not required with regard to increasing the range of punishments available under
Section 373(1) of this code. Consequently, the need to adopt the range of punishments af-
forded by the sentencing rule under Section 370(3) of the Fiscal Code (cf. in this regard the
Federal Supreme Court of Justice of 28 September 1983; 3 StR 280/83, BGHSt 32, 95) in
relation to particularly serious cases, as set out in Section 373 of the Fiscal Code, also
lapses.
The new paragraph 4 of Section 373 of the Fiscal Code extends the area of application of
Section 373 of the Fiscal Code (corresponding to Section 374(4) of the Draft Fiscal Code) to
import or export duties which are managed by another Member State of the European Com-
munities or which are due to a Member State of the European Free Trade Association or a
State which is associated with this.
Re point 5 (Section 374 of the Draft Fiscal Code)
The range of punishment for acts perpetrated pursuant to Section 374 of the Fiscal Code,
which was laid down under the previous provision by reference to Section 370(1) of the Fis-
cal Code, should be specifically regulated with a view to simplifying the application of the law
in Section 374(1) and (2) of the Draft Fiscal Code. The same applies to the provision con-
cerning the attempt to commit offences in paragraph 3. Here too, the reference to Section
370(2) of the Fiscal Code is to be replaced by a specific provision.
In paragraph 2, the handing by gangs of items on which no tax has been paid also equates
to the handling of such items for commercial gain in terms of its unfair remuneration.
The revised paragraph 4 is borrowed from the new provision in Section 373(3) of the Draft
Fiscal Code. Reference is made to the Explanatory Statement to be found there.
183
Re Article 4 (Amendment to the Criminal Code)
The changes here are consequential amendments as a result of the amendment to Section
374 of the Fiscal Code and the repealing of Section 370a of the same (cf. Article 3).
1. Given that, in future, the handing by gangs of items on which no tax has been paid, or
where this is perpetrated for commercial gain, is to be regulated separately in Section
374(2) of the Fiscal Code, the previous restriction on acts perpetrated for commercial
gain can be dispensed with by incorporating this qualifying element (of the crime) in
Section 261(1) sentence 2 point 3 of the Criminal Code. Over and above the law in
force previously, in future, the handing by gangs of items on which no tax has been
paid should also be classified as an act constituting the predicate offence to money
laundering.
2. Previously, tax evasion for commercial gain, or where this has been perpetrated by
gangs, according to Section 370a of the Fiscal Code, should be classified as an act
constituting the predicate offence to money laundering (a serious crime under Section
261(1) sentence 2 point 1 of the Criminal Code). As a result of the proposed
downgrading of such acts to an example of regulation for particular serious cases of tax
evasion as per Section 370(3) point 5 of the Draft Fiscal Code, these acts should not
be classified as acts constituting the predicate offence to money laundering. Therefore,
tax evasion as per Section 370 of the Fiscal Code should be included in the list of
predicate offences under Section 261(1) sentence 2 point 4 of the Criminal Code. In
this way, in future, those deeds which were already classified as acts constituting the
predicate offence to money laundering would also be covered in the main, since
Section 261(1) sentence 2 point 4 [of the Criminal Code] presupposes that the
predicate offence has been committed for commercial gain or by a member of a gang
created for the perpetration of such acts on a continuing basis. It is merely the
characteristic of unlawful tax reduction “on a large scale”, previously found in Section
370a of the Fiscal Code, which will no longer have to apply in order for a case of tax
evasion to be classified as an act constituting the predicate offence to money
laundering.
184
Re Article 5 (Amendment to the Article 10 Act)
Since the duty of collaboration as per Section 100b(3) sentence 1 of the Code of Criminal
Procedure-Draft also extends to persons and authorities which do not furnish telecommuni-
cations services on a commercial basis, so as not to jeopardise the success of the monitor-
ing measure, the obligation must also apply to these persons and authorities whereby third
parties shall not be informed of the measure. For this reason, the words “on a commercial
basis” are deleted from Section 17(1) of the Article 10 Act which contains this obligation.
Re Article 6 (Amendment to the Associations Act)
The previous reference in Section 10(2) sentence 4 of the Associations Act, inter alia, is un-
dergoing editorial amendment in line with Sections 100 and 101 of the Code of Criminal Pro-
cedure on the basis of the new regulations to be found in these provisions:
The previous reference to Section 101 of the Code of Criminal Procedure becomes superflu-
ous with regard to paragraphs 2 and 3 therein, which are henceforth incorporated as para-
graphs 5 and 6 in Section 100 of the Code of Criminal Procedure-Draft which is referred to in
any case.
The previous reference to Section 101(1) (obligation to notify) is replaced by the reference to
the corresponding provisions in Section 101(4) to (9) of the Code of Criminal Procedure-
Draft. In this way, the comprehensive provisions of the obligation to notify and the deferment
of notification, together with judicial examination and ex post facto legal protection, are ex-
tended to include the confiscation of post according to Section 10 of the Associations Act. In
addition, the obligation to label and delete data is introduced by means of the reference to
Section 101(3) and (10) of the Code of Criminal Procedure-Draft. The extension to include
Section 101(3) to (10) of the Code of Criminal Procedure-Draft appears proper because a
different handling of the confiscation of post according to Section 99 of the Code of Criminal
Procedure-Draft, on the one hand, and Section 10(2) of the Associations Act, in conjunction
with Section 99 of the Code of Criminal Procedure, on the other, would be contradictory in
terms of classification.
A reference to the provision regarding the keeping of separate files, regulated hitherto in
Section 101(4) of the Code of Criminal Procedure, and which has now been transferred to
Section 101(2) of the Code of Criminal Procedure-Draft, was, and is, superfluous given the
lack of intervention of this provision in the confiscation of post.
185
Re Article 7 (Amendment to the Act on the Federal Office of Criminal Investigation)
The change to Section 16(3) sentence 3 of the Act on the Federal Office of Criminal Investi-
gation takes account of the fact that the use of personal information, which was obtained by
using technical aids, for personal protection according to Section 16 of the Act on the Federal
Office of Criminal Investigation is not determined solely in accordance with the provision un-
der the previous Section 161(2) of the Code of Criminal Procedure (now Section 161(3) of
the Code of Criminal Procedure-Draft) referred to hitherto in Section 16(3) sentence 3 but,
depending on the case scenario, also in accordance with the new paragraph 2 in Section 161
of the Code of Criminal Procedure-Draft or, in the event of the acoustic monitoring of private
premises, according to Section 100d(5) point 3 of the Code of Criminal Procedure-Draft.
Re Article 8 (Amendment to the Constitution of Courts Act)
Section 120(4) sentence 2 of the Constitution of Courts Act is undergoing editorial amend-
ment: As a result of the new regulations pertaining to the notification obligations in Section
101(4) to (8) of the Code of Criminal Procedure-Draft, the competence of the Higher Re-
gional Courts contained hitherto in Section 100d(9) sentence 4 of the Code of Criminal Pro-
cedure relating to decisions concerning consent for deferment of notification beyond 18
months in the event of the acoustic monitoring of private premises (cf. in this regard the Ex-
planatory Statements to Section 101(8) of the Code of Criminal Procedure-Draft) lapses. The
reference in Section 120(4) sentence 2 of the Constitution of Courts Act to Section 100d(9)
sentence 4 of the Code of Criminal Procedure shall therefore be deleted.
Re Article 9 (Amendment to the Act establishing the Code of Criminal Procedure)
Section 12 of the Draft Act establishing the Code of Criminal Procedure lays down transi-
tional regulations concerning obligations relating to statistics which are transferred to the
Code of Criminal Procedure (Section 100b(5) and (6) of the Code of Criminal Procedure-
Draft) from the Telecommunications Act (Section 110(8) of the Telecommunications Act) and
from the Telecommunications Monitoring Order (Section 1 point 8, Section 25 and the Ap-
pendix to Section 25 of the Telecommunications Monitoring Order) and re-established there
(Section 100g(4) of the Code of Criminal Procedure). Paragraph 1 sentence 2 clarifies the
186
fact that the existing provisions concerning statistics, which are found in Section 100e of the
Code of Criminal Procedure-Draft, are not affected by this transitional regulation.
Re Article 10 (Amendment to the International Criminal Court Act)
The references contained in this provision to Section 100a(1) sentence 1, Section 101(1) and
Section 100b(5) and (6) of the Code of Criminal Procedure are undergoing editorial amend-
ment in line with the revision of Sections 100a, 100b and 477(2) of the Code of Criminal Pro-
cedure-Draft. In addition, the word “information”, which is to be found in paragraph 1 point 3,
is replaced by the words “personal data” and the word “destruction” by the word “deletion”,
thereby facilitating alignment with the terms found in the Code of Criminal Procedure.
Re Article 11 (Amendment to the Act on securities trading)
The obligation to notify in Section 16b(1) sentence 3 of the Act on securities trading is re-
tained as a result of the reference to Section 101 of the Code of Criminal Procedure by
means of the new reference to Section 101(4) and (5) of the Code of Criminal Procedure-
Draft. The reference to Section 101(6) et seq of the Code of Criminal Procedure-Draft is also
disregarded since the envisaged judicial review of the deferment of notification is not yet pro-
vided for either in the sphere of the Act on securities trading and, in consideration of the re-
duced degree of interference of the measure provided for in Section 16b(1) sentence 3 of the
Act on securities trading (merely a storage order but no provision concerning access), it does
not appear necessary in the future either.
Re Article 12 (Amendment to the Act on the use of direct force and the exercising of
special powers by soldiers of the Federal Armed Forces and allied forces as well as
non-military security guards)
Section 7(2) sentence 2 of the Act on the use of direct force and the exercising of special
powers by soldiers of the Federal Armed Forces and allied forces as well as non-military se-
curity guards is undergoing editorial amendment where it makes reference to the previous
Section 110 of the Code of Criminal Procedure. There was no need either for a reference to
the new paragraph 3 in Section 110 of the Code of Criminal Procedure-Draft in the case sce-
nario covered by Section 7 of the Act on the use of direct force and the exercising of special
187
powers by soldiers of the Federal Armed Forces and allied forces as well as non-military se-
curity guards.
Re Article 13 (Amendment to the Telecommunications Monitoring Order)
Re point 1 (Section 1 of the Telecommunications Monitoring Order)
Re letters a and c (point 8)
The regulation related to the compilation of statistics according to Section 110(8) of the Tele-
communications Act in Section 1 point 8 of the Telecommunications Monitoring Order is also
repealed at this time as a result of the annulment of Section 110(8) of the Telecommunica-
tions Act on 1 January 2009. Corresponding collections of statistics will follow in future on the
basis of Section 100b(5) and (6) of the Code of Criminal Procedure-Draft. Refer to Article
16(2) regarding the respective transitional regulations.
Re letter b (point 9)
The new point 9 takes up the expanded statutory authorisations as per Section 110(2) of the
Draft Telecommunications Act, according to which, in future, regulations can also be laid
down regarding the basic technical requirements and the key organisational elements con-
cerning the issuing of information. This expansion of the regulatory scope is also required on
account of the powers available to the criminal prosecution authorities, as provided for in
Section 100g(1) of the Code of Criminal Procedure-Draft, to also collect traffic-related data in
real time. The specific stipulation of the requirements pertaining to the transmission proce-
dure and the data format, as well as the determination of further technical and organisational
arrangements, will be left to a future amendment of the Telecommunications Monitoring Or-
der.
Re point 2 (Section 3(2) of the Telecommunications Monitoring Order)
Re letter a (sentence 1 point 5)
This amendment raises the obligation limit pursuant to Section 3(2) sentence 1 point 5 of the
Draft Telecommunications Monitoring Order from the previous figure of 1 000 to 10 000 affili-
188
ated participants or other authorised users. When this limit is exceeded, operators of tele-
communications installations must take technical and organisational precautions. Section
110(2) point 2 letter c of the Telecommunications Act stipulates that the Telecommunications
Monitoring Order can regulate those telecommunications installations where, inter alia, no
technical equipment may be kept for reasons of proportionality and as regards which no or-
ganisational precautions have to be taken with regard to implementing monitoring measures.
In this way, small telecommunications companies should be exempt from the not inconsider-
able expense as far as they are concerned which accrues in relation to the provision of tech-
nical facilities and the adoption of organisational precautions with regard to the implementa-
tion of monitoring measures which have been arranged. Since no experimental values what-
soever were available in this respect when drawing up the Telecommunications Monitoring
Order, the limit value, for its part, was laid down in such a way that the operators of such
telecommunications installations are exempt from the obligation to keep equipment available
when no more than 1 000 participants or other authorised users are affiliated to these instal-
lations. In the meantime, checks carried out by the Federal Network Agency on the allocation
of monitoring measures to enterprises of varying sizes established that network operators
whose telecommunications installations are only slightly bigger than the limit value laid down
by the Order only have to reckon on implementing a monitoring measure, on average, ap-
proximately every eleven years. In view of this, the obligation to take precautions in this re-
gard is assessed as no longer being proportionate. A justifiable value is achieved if the limit
value is raised from the current value of 1 000 participants or other authorised users to 10
000 in future.
Over and above the knowledge which is based on experimental standard voice telephony
values, the Federal Network Agency has also commissioned a study regarding the sizes of
enterprises of e-mail providers, the results of which at least make a similar increase appear
advisable. As regards the area of internet telephony (VoIP - Voice over Internet Protocol),
although no experimental values are available as yet, this does not constitute grounds for
imposition, which is why the trend of only using small network operators or service providers
on very rare occasions to implement a monitoring measure should definitely change in rela-
tion to this area.
If, in the course of other technical developments, or in the event of considerable structural
changes to the telecommunications market, for instance, on account of the increasing dis-
semination of internet telephony, it should be proven that the increased obligation limit leads
to fundamental problems when implementing monitoring measures which are no longer ac-
ceptable, a decision will be taken, where necessary, on a readjustment of the obligation limit.
189
However, it should not be suspected that individual telecommunications companies will use
the increase in the obligation limit in a targeted manner for the purpose of evading obliga-
tions under telecommunications law in accordance with the Telecommunications Act and the
Telecommunications Monitoring Order by splitting the company up into smaller, legally inde-
pendent entities, since Section 3(2) of the Telecommunications Monitoring Order is not tied
to the size of the company as such but to the size of the telecommunications installation
used. If necessary, however, further adjustments to Section 3 of the Telecommunications
Monitoring Order must be reacted to in order to ensure effective use of telecommunications
monitoring measures in future as well.
Re letter b (sentence 3)
The new Section 3(2) sentence 3 of the Draft Telecommunications Monitoring Order takes up
the provision of Section 110(1) sentence 1 point 1a of the Telecommunications Act which is
incorporated by means of the Act amending the provisions of telecommunications law of 18
February 2007 and, by way of exception to the exemption provision in sentence 1, exempts
the installation operators and service providers who are obligated under Section 110(1) sen-
tence 1 point 1a of the Telecommunications Act from the obligation regulated by means of
Section 3(2) sentence 1 points 1 and 2 of the Telecommunications Monitoring Order,
whereby precautions must be taken in relation to the implementation of monitoring meas-
ures. The provision under Section 110(1) sentence 1 point 1a of the Telecommunications Act
concerns cases where the provision of the telecommunications service is divided up between
various service providers or network operators in such a way that the individual participants
in the provision of telecommunications still only make use of certain part functions and no
participant has a complete overview of the technical processes concerning the respective
telecommunications process or access to all of these processes. This “division of labour” is
facilitated in particular by new technologies, as regards which the signals required to control
telecommunications and those signals representing the content of the communication are
transmitted via separate telecommunications installations, as is the case, for instance, with
so-called VoIP telephony. In such a case, telecommunications monitoring is only possible as
a result of the individual participants in the furnishing of telecommunications working to-
gether. The newly inserted Section 3(2) sentence 3 of the Draft Telecommunications Moni-
toring Order is necessary in order to prevent the new provision under Section 110(1) sen-
tence 1 point 1a of the Telecommunications Act, with reference to the exemption provision
under Section 3(2) sentence 1 points 1 or 2 of the Telecommunications Monitoring Order,
from being rendered obsolete.
190
Re point 3 (Section 4(2) of the Telecommunications Monitoring Order)
This is a consequential editorial amendment repealing Section 21 of the Telecommunications
Monitoring Order (cf. the Explanatory Statement contained therein).
Re point 4 (Section 7(1) of the Telecommunications Monitoring Order)
Section 7(1) sentence 1 point 7 of the Draft Telecommunications Monitoring Order adjusts
the obligation incumbent upon service providers regarding notification of positional data in
the course of a telecommunications monitoring measure in line with current technical devel-
opments. Until recently, indicating positional data was only of practical importance when
monitoring mobile telephones. This changed with the increasing availability of other non-
localised usable telecommunications services (e.g. VoIP). As a result, the need arose to
adapt accordingly the provision in point 7 which focuses on indicating position.
Re point 5 (Section 11 of the Telecommunications Monitoring Order)
The reference inserted in Section 11 sentence 1 of the Draft Telecommunications Monitoring
Order to the provision under Section 12(2) sentence 1 of the aforementioned order author-
ises the Federal Network Agency to specify the technical details of the electronic transmis-
sion procedure in the Technical Guideline according to Section 110(3) of the Telecommuni-
cations Act.
Re point 6 (Section 12(2) of the Telecommunications Monitoring Order)
This change removes the previous ambiguous wording whereby it was not clear whether, in
the case of the transmission of an instruction using secure electronic means, the original in-
struction then had to be transmitted afterwards as well. The amended version, whereby the
words “in advance” only relate to transmission by fax, clarifies the fact that when sending an
instruction using secure electronic means which does not involve faxing, subsequent trans-
mission of the original instruction or a certified copy thereof is not required.
191
Re point 7 (Section 19(3) of the Telecommunications Monitoring Order)
This is a consequential amendment repealing Section 21 of the Telecommunications Moni-
toring Order (cf. the Explanatory Statement contained therein).
Re point 8 (Section 21 of the Telecommunications Monitoring Order)
The previous regulation, whereby the Federal Network Agency should, under certain condi-
tions, tolerate deviations from the provisions of the Telecommunications Monitoring Order in
the case of telecommunications installations operators to which no more than
10 000 participants or other authorised users are affiliated, is superfluous given the raising of
the obligation limit in Section 3(2) sentence 1 point 5 of the Draft Telecommunications Moni-
toring Order to 10 000 participants or other authorised users and must therefore be repealed.
No retention of this exemption provision or raising of the previously stipulated limit is re-
quired.
Re point 9 (Section 22 of the Telecommunications Monitoring Order)
Given that Section 21 of the Telecommunications Monitoring Order has been repealed, Sec-
tion 22 of the same constitutes the sole provision concerned with deviations in Chapter 5.
The heading shall therefore be modified accordingly.
Re point 10 (Section 25 of the Telecommunications Monitoring Order and the Appen-
dix to Section 25 of the same)
This point represents a consequential amendment concerning the annulment of the obliga-
tions relating to statistics as per Section 110(8) of the Telecommunications Act on 1 January
2009.
Re point 11 (Section 27(8) of the Telecommunications Monitoring Order)
This point represents a consequential amendment relating to the repealing of Section 21 of
the Telecommunications Monitoring Order. The regulatory content of Section 21(4) sentence
192
1 point 1 of the Telecommunications Monitoring Order, which just continues to be important
in relation to Section 27 of the same, shall be specifically included in Section 27(8) sentence
1 of the Draft Telecommunications Monitoring Order.
Re Article 14 (Amendment to the Act amending the Code of Criminal Procedure of 20
December 2001)
By means of this provision, the imposition of a time limit with regard to the term of validity
under Sections 100g and 100h of the Code of Criminal Procedure is repealed by means of
Article 2 of the Act amending the Code of Criminal Procedure of 20 December 2001. In this
way, it is ensured that Sections 100g and 100h of the Code of Criminal Procedure, which
have been revised by means of this Act, shall not cease to be valid on 1 January 2008.
Re Article 15 (Citation requirement)
By means of this provision, the citation requirement under Article 19(1) sentence 2 of the
Basic Law is satisfied.
Re Article 16 (Entry into force)
This provision governs entry into force.
