Will German police get to do secret house searches?

At first glance, Interior Minister Nancy Faeser's proposal is reminiscent of a method practiced by the "the Stasi," the Ministry for State Security of the former communist East Germany, whose secret police infiltrated the homes of suspected regime opponents in order to tap their phones.

The practice stopped with the end of the East German dictatorship (GDR) and German reunification in 1990. But now, in the face of Islamist and right-wing extremist terrorist threats, Faeser wants to empower investigators to use the method once again. However, unlike the Stasi's arbitrary actions in communist East Germany, the German parliament must first give its approval.

Faeser is proposing to allow the Federal Criminal Police Office (BKA) to enter terrorism suspects' homes in order to install spy software on their smartphones and computers.

Fear of Islamist terror sparks push for tougher law

Following the recent deadly knife attack by a Syrian Islamist in Solingen, a spokesman for the interior minister justified the plan at a government press conference, especially for cases of Islamist terrorism.

"In this context, we believe it is completely self-evident that security authorities must have the appropriate powers to counter it," he said, though without providing any details of the draft law, which he said the government is still debating.

It's unlikely that the neoliberal Free Democrats (FDP), the smallest partner in the three-way coalition, will agree to government-authorized secret home break-ins, as defending citizens' rights is at the heart of the party's trademark. The FDP believes international terrorism and other serious crimes can be countered without the implementation of tougher laws.

Covert online searches are allowed

At the moment, German security authorities are allowed to tap electronic devices without breaking into the homes of suspects, under certain circumstances — using remote forensic software to obtain data from suspects' devices without them noticing.

German police have been allowed to use this method to monitor suspects' homes as part of "online searches" since 2017. However, every single such action must first be approved by a court — or in especially urgent cases, by a public prosecutor's office.

Section 100 of the Criminal Code describes in detail what crimes may be prosecuted with the help of "online searches." The list is long, and it includes endangering the democratic rule of law; forming criminal organizations; murder; sexual offenses; drug smuggling; money laundering; human trafficking; and asylum abuse.

Landmark ruling by Germany's Constitutional Court

According to official government figures, the number of online searches has been in the low double-digit range for years — and the majority have involved drug offenses. But online searches have always been controversial. One 2008 Federal Constitutional Court ruling was considered groundbreaking, which stated that online searches are only permitted if human life or the state itself is at risk.

Covert searches are supposed to be an absolute exception when fighting crime in Germany. Open raids on homes, on the other hand, are a normal part of everyday police work. They, too, can only be carried out on the order of a court or a public prosecutor's office. As a rule, searches are undertaken in the suspect's presence.

Some raids have made the headlines. A recent example was when the home of the head of the German right-wing extremist Compact magazine, Jürgen Elsässer, was searched to secure evidence.

The magazine was banned by the Interior Ministry in July. But the Federal Administrative Court allowed Elsässer to continue publishing, because the court had doubts about the proportionality of the ban, on whether it impinges on freedom of the press and freedom of speech.

Despite the partial victory for the magazine publisher, his house could still be "secretly" searched — theoretically — because in 2021 Compact was classified as a "confirmed right-wing extremist" publication by Germany's Office for the Protection of the Constitution. That designation authorizes so-called "undercover investigations," which can include "entering a person's home" — but only remotely.

Justice minister worries about rule of law

However, Justice Minister Marco Buschmann, of the FDP, has rejected Faeser's new proposal.

"There will be no authorization given to secretly snoop in people's homes. We don't do that in a constitutional state. That would be an absolute breach of taboo," he wrote on X, formerly Twitter.

Buschmann pointed out that the state did not even resort to such measures when the left-wing extremist Red Army Faction kidnapped and murdered people in the 1970s. He urged proportionality, warning that, "if a law allows the state to secretly break into a home to search it, many people will lose their trust in the rule of law."

This article was originally written in German.

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