The German Bundestag last week approved a new law that significantly expands the powers of the federal police by providing increased scope for drones, artificial intelligence and telecommunications surveillance. The law also makes it easier to detain immigrants for deportation.
The government argued that this law – the first new federal police law in Germany since 1994 – is necessary to keep up with technological developments and the changing nature of threats to public safety.
But according to critics, the introduction of mass surveillance by the federal police would mean that technologies and databases that have so far been used only by state police forces or for individual operations could be used continuously across the country.
Human rights and digital privacy advocates say the law poses significant risks to democratic freedoms and is likely to be challenged before Germany’s Constitutional Court. Still, those legal challenges could take years and the new law could be implemented in the meantime.
Real-time AI-supported monitoring
Perhaps the most important element of the new federal police law is that it allows the use of AI-supported facial recognition surveillance in public places where the federal police have jurisdiction (airports, intercity railway stations and near the borders of Germany).
Federal police will also be allowed to use “behavioral recognition” on surveillance footage, an AI system capable of assessing whether someone in a crowd is acting threateningly or otherwise in a specific way — for example, by throwing a punch. If such behavior is identified the AI system can directly alert authorities.
It was particularly criticized by opposition parties during the Bundestag debate last week. “Imagine this: Your train is two hours late… and you’re angry, pacing back and forth on the platform in frustration. To the AI, this is a ‘suspicious long-term behavior.’ “It thinks you’re a pickpocket,” said Clara Bunger of the Socialist Left Party, to much jeer from representatives of government parties.
Police unions have welcomed the measure, partly because it could ease pressure on manpower, but it is seen as controversial by digital rights activists, who say it creates the infrastructure for mass surveillance. “This is a real breach of the dam, because it more or less suspends anonymity in public spaces,” said Michael Köln, head of policy at the Berlin-based company. Center for Digital Rights and DemocracyTold DW. “These are measures that we know from China, from Iran, from Russia, but which are extremely unusual for German conditions.”
Markus Thiel, a professor of public law at the German Police University in Münster, said he could understand such concerns. “But I think it’s always a little bit of a rebound,” he said. “Whenever police powers are increased, there are always some organizations and groups that are very critical of it. They have some justification, because especially these AI-assisted measures always involve the possibility of serious violations of basic rights.”
This is especially the case because it is impossible for citizens to know how their data is being read and processed by AI surveillance technology – and in Germany people are considered to have the right to access their data and find out how it is used. “It is therefore very important that such rules be consistent with fundamental rights,” Thiel said. “I can understand the criticism, but I also think we need these devices. I see them as basically unproblematic, as long as they’re well designed.”
But activists are also concerned because the new law gives police more scope to use surveillance software in end-user devices, what the government calls “preventive surveillance.” “Certainly, it brings the danger that sensitive data is suddenly in the hands of security forces,” Collen said. “It’s like they can read your diary, even in the worst case scenario.”
Drones: When to use them, when to drop them
The new law also regulates when and how federal police are allowed to use drones.
This new legal framework is important, Thiel explained, “because the interference with basic rights is certainly much greater with a drone that can see anything from the sky than with a stationary camera.” The new law allows drones to be deployed near train stations and borders, especially at busy times.
Similarly, the law sets out what police are allowed to do if an unmanned aerial vehicle is deemed a threat – considered important after a spate of drone sightings last year caused disruption at airports in Germany and across Europe.
Police can now use signal blockers, electromagnetic pulses and even firearms during such incidents — though, as Thiel said, only as a last resort.
Spot checking and detention of immigrants
Human rights groups are concerned because the new law gives federal police more powers to detain immigrants and conduct random searches due to deportation, which, according to a statement from Amnesty International, “provides a gateway for racial profiling.”
According to Julia Ducrow, Amnesty’s general secretary in Germany, these are part of wider developments in policing: “We are witnessing a growing and dangerous imbalance: while federal and state police agencies are being given greater powers of control and surveillance, mechanisms for transparency, accountability and data protection are not being expanded – and existing safeguards for fundamental rights are also being rolled back,” the organization’s statement said.
Constitutional challenges and parliamentary efficiency
The German government has faced challenges to its policing before: In 2016, the Constitutional Court ruled that some of the surveillance powers of the Federal Police – which were expanded in 2008 – were disproportionate and had to be modified.
But it took eight years to reach that decision, and experts like Collen believe the government always makes decisions about strengthening police powers and leaves lawyers to debate it for years to come.
“What we see is a kind of cat-and-mouse game between the Constitutional Court and the Interior Ministry,” Collen said. Every time the court issues a new ruling, the government responds by making minimal changes, and then a new legal row begins. “This is a never-ending story that we’ve been watching for 30 years,” Collen said.
That cycle is somewhat inevitable – state security forces will always push for more powers and the Constitutional Court will, ideally, always try to protect civil rights. What’s missing, Collen argues, is more scrutiny from lawmakers. “My main criticism is that it is actually the job of Parliament to ensure that fundamental rights are guaranteed. But too often, parliamentary parties just repeat what the government writes.”
In this case, he said, there was not even time for a public parliamentary hearing on the question of real-time AI surveillance, because that part was added days before the vote by the government parties, the center-right Christian Democratic Union (CDU) and the center-left Social Democratic Party (SPD). “Parliamentary groups simply wrote it into law without consulting experts or even asking the Data Protection Commissioner – and a legislative process should not work that way,” he said.
Edited by Reena Goldenberg