Germany Moves to Significantly Expand Intelligence Surveillance Powers for BND

Berlin Seeks Greater Intelligence Autonomy

Germany is currently in the process of drafting comprehensive legislation that would substantially broaden the surveillance and hacking capabilities of its Federal Intelligence Service (BND). This move is primarily driven by a strategic objective to lessen the nation's dependence on intelligence provided by the United States and to align Germany's intelligence gathering capacities with those of other major European countries, such as the United Kingdom and France.

The proposed law, detailed in a 139-page draft, represents a near-doubling of the BND's existing mandate. This reform reflects a deeper shift in Germany's security policy, influenced by ongoing geopolitical challenges and the need for a more agile response to crisis situations.

Key Expansions of BND Authority

The new legislation would introduce several significant powers for the BND:

• Full-Content Interception and Data Retention: The BND would gain the authority for full-content interception of communications. Furthermore, the agency would be permitted to retain collected data for up to six months. This includes the ability to store up to 30 percent of all data traffic passing through major internet exchange points like DE-CIX in Frankfurt, encompassing the full content of emails, chats, and voice calls.
• Offensive Hacking Operations: The draft law authorizes offensive hacking operations against foreign technology providers, particularly if they decline to cooperate with data requests. This 'hack foreign providers' clause is anticipated to create friction with major U.S. platforms such as Google, Meta, and X.
• 'Federal Trojans' and Cyberattacks: The BND would be empowered to deploy intrusive tools, often referred to as 'federal trojans' or 'state trojans,' on target devices, a power previously largely reserved for law enforcement. The service would also be granted the right to launch cyberattacks in response to threats and to protect critical infrastructure, including through cyber and radio-electronic countermeasures.
• Expanded Surveillance Targets: The BND's mandate would extend to surveilling foreign nationals within Germany suspected of espionage or terrorism. Additionally, the law seeks to differentiate between independent journalists and those affiliated with foreign state-linked media, potentially allowing for increased monitoring of the latter.
• Active Measures Abroad: For the first time, the BND would be able to undertake limited active measures abroad, including acts of sabotage, under specific conditions. Such actions would require a declaration of a 'special intelligence situation with a systemic threat' by the National Security Council and approval by a two-thirds majority of the Bundestag's Parliamentary Oversight Committee.
• AI Integration: The legislation provides for the wider use of artificial intelligence for analyzing large datasets, including facial recognition and access to geolocation and transport registers.

Context and Concerns

The push for greater intelligence autonomy comes amidst a broader European reevaluation of security reliance on the United States, particularly in an era of transatlantic uncertainty. German officials argue that enhancing their own surveillance infrastructure is crucial for independently gathering vital national security information.

However, the proposed expansion has raised concerns among civil liberties advocates. A 2020 ruling by the Federal Constitutional Court had previously declared parts of the BND's foreign surveillance unconstitutional, emphasizing the need for fundamental rights protection for foreigners and press freedom. Critics argue that the new draft may still violate fundamental rights, particularly for foreigners residing in Germany, and that it establishes a low intervention threshold for the use of state trojans. The issue of press freedom is also a point of contention, with some arguing that the new law does not provide sufficient protection for journalists' communications.