After the thwarted alleged attack plans on a Taylor Swift Concert The Greens have recently shown themselves to be more open to expanding the powers of the Directorate for State Security and Intelligence (DSN) to monitor messengers. Interior Minister Gerhard Karner (ÖVP) has sent a draft bill for review. However, a decision before the election is highly unlikely: the deadline for comments does not end until September 25th.
The Greens had rejected a shortening of the review period, saying that a six-week review was “simply necessary” given the subject matter. The ÖVP also does not expect a decision to be made before the election on 29 September – Chancellor Karl Nehammer has already declared messenger surveillance to be a coalition condition after the election.
Karner essentially agreed with this on the sidelines of a press conference on Tuesday. The police must be given the means to fight terrorists on an equal footing. Karner sharply criticized the FPÖ leader Herbert Kickl, because he had rejected surveillance of the messenger services on Monday. It was “shameful” for a former interior minister to go against the interests of the police and the safety of the people.
This is not the first attempt at messenger surveillance. The surveillance of computer systems via “federal trojans” planned by the then turquoise-blue government was overturned by the Constitutional Court (VfGH) at the end of 2019 before it came into force. This would only be permissible “within extremely narrow limits”, it said at the time. After the most recent alleged assassination plans in Vienna, Interior Minister Karner has again put increasing pressure on messenger surveillance. After all, terrorists nowadays do not communicate via letters and packages, but via WhatsApp or TelegramWithout access to messenger content, no concrete clues could be determined, such as perpetrators, locations and times of impending attacks.
According to explanations, the Interior Ministry has taken the Constitutional Court’s ruling on the “Federal Trojan” into account in the draft that was recently sent for review by taking various “precautions”. The regulation in the State Protection and Intelligence Service Act already makes it clear that messenger surveillance may only be used to prevent particularly serious attacks that endanger the constitution, which are punishable by at least ten years’ imprisonment or which are related to espionage activities.
According to the draft law, the scope of data that may be monitored must be precisely limited. “An online search of the entire computer system, including locally stored data, is (…) not permitted” and messenger monitoring is only permitted “if the fulfillment of the task by using other investigative measures is hopeless.”
“Federal Trojan”
In view of the Constitutional Court’s ruling, the draft law for messenger surveillance is to establish “a new type of legal protection system in the sense of a multi-stage approval and control procedure”: Even before the application for judicial approval is submitted to the Federal Administrative Court, the legal protection officer at the Ministry of the Interior must be involved. This means that he can not only monitor the actual implementation of the message surveillance, but can also raise concerns before it is carried out. After the surveillance has ended, those affected and those with whom monitored messages were exchanged must also be informed of the measure.
In the application of the DSN In addition to the specific suspicion of danger, the period for which the surveillance is required, the type of messages it concerns and the technical means to be used must be recorded precisely. The maximum duration is three months, although an extension is possible if a new application is submitted with reasons. During the investigation, only those messages read may be processed that are necessary to ward off an attack that endangers the constitution. All others must be deleted. Exception: References to planned or committed crimes against health, morality, freedom or property may be kept separately and the responsible security authority or public prosecutor’s office may be informed.
The draft also defines rules for the programs that must be introduced into the computer systems of suspects in order to read encrypted messages: These apps may only be accessed by those for which there is a specific authorization – and only during the period for which there is authorization. After the investigation has been completed, the software must be completely removed or rendered inoperable without damaging or impairing the computer system. In addition, no one may enter rooms protected by house rules to install the programs.
