The Bundestag has considerably expanded the powers of the Federal Intelligence Service (BND) and the Federal Office for the Protection of the Constitution (BfV). As the Tagesspiegel and the Hamburger Morgenpost report, both services may in future actively intervene in ongoing attacks – for example block cyber attacks, redirect data streams, render weapons unusable or shut down servers belonging to hostile hacker groups. According to the Tagesspiegel, the federal government cites concrete threats from Russia, China and Iran as the justification.
The reform was passed in the Bundestag. On the morning of 13 November, WDR had still reported on the upcoming vote in its news roundup and quoted Federal Interior Minister Alexander Dobrindt (CSU) with the example that the BND should be able to shut down a dangerous drone factory abroad. With the adoption, the reform counts as passed, no longer merely planned.
What the Office for the Protection of the Constitution may do domestically
According to the sources, the BfV is no longer to merely collect information but, in cases of special threat, to take covert protective measures against objects and IT systems for the first time. Under the plans, it is to be permitted to
- impair the function of means of attack such as explosives or weapons,
- redirect or block data streams during cyber attacks,
- delete or falsify data stored for threat purposes,
- plant false information on those involved.
Under certain conditions, BfV staff are to be allowed to enter homes covertly, for example to read data from a device on site or to render weapons inoperable. According to the Tagesspiegel, “very high hurdles” apply, and the measure must always be approved in advance. Digital powers are also being expanded: the BfV gains options for reading data from devices, monitoring encrypted telecommunications and online searches. It may use AI-supported data analysis and biometric image matching on the internet and obtain information from companies such as payment service providers, platforms or carmakers. Telecommunications providers can be obliged to temporarily secure traffic data; however, the BfV only gains access once a suspicion later becomes more concrete.
Also new is the power to investigate support structures of organised crime. According to the reports, the background is that foreign intelligence services are increasingly resorting to members of criminal gangs for espionage, sabotage and attacks. In narrowly limited exceptional cases, 16- and 17-year-olds are in future also to be run as trusted persons – that is, as confidential sources with access to an observed environment, such as a far-right terrorist group or an Islamist grouping.
Why the BND is being authorised to intervene
The foreign intelligence service is also receiving operational intervention powers. Until now it was meant to gather intelligence and provide the federal government with a basis for foreign-policy decisions; in future it may act on objects and IT systems in specific threat situations – shutting down servers of state hacker groups, disrupting disinformation networks or interrupting supply chains for weapons and means of sabotage. According to the Tagesspiegel, the parliamentarians questioned these powers less critically than those of the BfV, because abroad the BND has no police force to which it could leave such tasks.
In strategic foreign intelligence, the BND may in future initially store collected data unsifted and in bulk – content data for up to six months, metadata for up to 13 months. On its order, telecommunications providers must secure traffic data for up to three months. The Federal Constitutional Court had also set the BND a deadline until the end of this year: by then the service must improve its rules for domestic-foreign telecommunications surveillance.
Oversight, limits – and open criticism
Neither service receives police coercive powers such as arrests or open searches. Active measures by the BfV must not socially or professionally discredit anyone; professional secrets of doctors, psychotherapists, lawyers and journalists enjoy special protection. Neither the BfV nor the BND may access the Federal Police’s biometric real-time recognition and its entire camera network. To test new intelligence means, both must obtain the prior consent of the Parliamentary Oversight Panel (PKGr).
The role of the judge is taken on at the services by a court-like council staffed with independent experts: particularly intrusive measures may in principle only be implemented once the Independent Oversight Council (UKRat) has established their lawfulness in advance; for certain surveillance of living space, the Federal Administrative Court is responsible. In urgent cases, a service may declare a measure provisionally enforceable but must submit it to the UKRat without delay – if the latter does not confirm its lawfulness within the deadline, the order ceases to apply.
The PKGr currently includes only members of parliament from the CDU, CSU and SPD and Konstantin von Notz of the Greens, because the AfD and Linke candidates did not receive the necessary majority. WDR reports that the plans met with partly massive rejection from the opposition; critics warned that the intelligence services were taking on tasks that had previously tended to lie with the police.
As the justification for the pace, the reports point to a new quality of threat: attack plans against German arms managers and operations such as the explosives-laden drone at Leipzig/Halle Airport. “Russia is waging a shadow war against us,” BND President Martin Jäger said in October; the main aim was intimidation, “Moscow is betting on our weakness”. There are currently no indications of a large-scale Russian attack on NATO states, but there is the possibility of low-threshold military activities, particularly in the Baltics. In recent years, a number of planned terrorist attacks in Germany could only be prevented because foreign services – for example from the USA – supplied the decisive tip. The federal government wants to free itself from this dependence.
The editorial assessment: The reform ends the strict separation between intelligence gathering and intervention that long shaped German intelligence law. What will be decisive is whether the Independent Oversight Council maintains its prior review in practice – and whether the services use their new means as narrowly as the high hurdles require.
Earlier coverage: Bundestag votes on Germany’s biggest intelligence reform
