German state police criticized for electronic snooping

The Washington Post | October 15, 2011
By Michael Birnbaum

BERLIN — The software is straight out of a spy thriller, a program that allows police investigators to monitor activity and, if the computer has a camera, peer right into the face of the user.

Revelations this week that several state police forces used the secret tools caused consternation at the highest levels of government in Germany, where a Nazi past and not-too-distant memories of the all-pervasive East German secret police have led to privacy laws that are among the strictest in the world. 

Police departments have admitted using the powerful computer programs, which are called trojans, in a handful of cases around the country. In one case, police watched over a group of thieves peddling stolen merchandise. In another, they kept tabs on a suspected pharmaceuticals-smuggling ring.

Federal and state-level authorities are now investigating the use of the programs, and lawmakers are calling for more clearly defined boundaries for electronic snooping.

A 2008 ruling in the country’s highest court permitted monitoring e-mail and Internet telephone conversations with a warrant, but only for serious crimes, and not for basic computer use itself.

Chancellor Angela Merkel is keeping abreast of the investigations, her spokesman, Steffen Seibert, said this week at a news conference. “We take these reports .?.?. very seriously,” he said. 

The snooping was publicized after a lawyer in Bavaria discovered screenshots from his client’s computer in evidence amassed by investigators.

“This is way beyond the rules,” said Patrick Schladt, the lawyer. His client, who stands accused of involvement in pharmaceutical trafficking, unwittingly transmitted a snapshot of his computer screen every 30 seconds when his laptop was connected to the Internet, Schladt said. At least 60,000 shots were captured.

Schladt said that he did not object to police being able to intercept conversations held over the Internet, whether they were by voice or by e-mail. But screenshots, he said, were another story.

“You start writing an e-mail, and you don’t know whether you really want to send it or not,” he said. “You didn’t reach the level of communication.”

Schladt asked the Chaos Computer Club, a European hackers group, to analyze his client’s laptop. In a statement, the group said the software was poorly secured, if not particularly complex, and in its powers appeared to go far beyond constitutional limits.

“It could even be used to upload falsified ‘evidence’ against the PC’s owner, or to delete files,” the group said in the statement.

The Frankfurter Allgemeine Sonntagszeitung, a Frankfurt newspaper, devoted five pages this week to printing the raw code of the software that the Chaos Computer Club analyzed, saying it wanted to dramatize the power — and incomprehensibility to the layman — of relatively uncomplicated computer coding in ordinary life.

“Computers are not only communication tools, they are thinking tools,” said Frank Schirrmacher, in an editorial in the same edition of the newspaper. The screenshots “captured thinking itself, in the gradual formation of text: never-sent e-mails, digital conversations with oneself.” 

The cases raise uncomfortable questions in Germany, where until 1989 a powerful secret police kept extensive tabs on the thoughts, political inclinations and criminal activities of its population in its Communist eastern half. The Nazis also kept close watch over citizens, of course, and, marked by these experiences, the country keeps closer guard over private information than in many other places.

“It has to do with the general distrust of the German state, and of the security forces, given the background of our history,” said Ralf Poscher, a professor at the University of Freiburg who is an expert on privacy law. “It’s very deep in the collective mind that we are scared of a police force that overpowers the individual and the state. In most post-Fascist countries, you have higher sensibilities on this.”

Swiss authorities this week acknowledged using computer programs similar to those unearthed in Germany, but only for serious crimes with court approval.

Facebook has run afoul of German regulators when it has instituted changes that give users less-than-absolute-control over their data, and when Google introduced its Street View feature in Germany, it was forced to give residents the option to blur out their homes from street-level imagery. Berlin residents gave the new “Pirate Party” 8.5 percent of the vote in local elections last month. The party campaigned on an eclectic platform of data protection, Internet freedom and social justice.

Several state police forces admitted this week to using the snooping programs, though it is not clear if they were identical to the Bavarian version that the hackers group analyzed. The federal police — Germany’s equivalent of the FBI — has denied using the tools in investigations.

A German software company called DigiTask told German media this week that it had sold spying software to Bavarian authorities and to others around the country. The Bavarian interior minister, Joachim Herrmann, has said his police force’s use of the software was lawful.

In the United States, courts have permitted the FBI to use spyware to monitor computer use, including software that records keystrokes; that would have the same practical effect as capturing images of the computer screen as messages are composed.

Special correspondent Eva Schroeder contributed to this report.