Police in Germany are a matter for the federal states, this also applies to the surveillance of telecommunications. In Schleswig-Holstein alone, local police departments send as many “Silent SMS” as the Federal Police. A decision of the Federal Court of Justice should contain this practice, but a change is hardly recognizable.

German authorities are increasingly using mobile phones as a tracking device. This results from the semi-annual overview recently published by the Federal Ministry of the Interior in response to a parliamentary question. According to the report, the Federal Police sent 50,654 “Silent SMS” in the second half of the year, compared with 38,990 in the previous half-year. Only the figures for the Federal Criminal Police Office (BKA) show a decrease. In the second half of the year, the authority sent 21,337 “Silent SMS”, about 10,000 fewer than previous.

“Silent SMS” are not visible on mobile phones. They generate connection data at the three German providers Telekom, Vodafone and O2 without the users noticing. Police and secret services use this information to create moving profiles. At the federal level, the method is mainly used by the Federal Office for the Protection of the Constitution (BfV), where secret text messages rose to a peak value of almost 180,000 a year ago. Now these figures remain under lock and key for the first time.

Secrecy initially for Customs

The German MOI developed similar secrecy six years ago for the Ministry of Finance, whose customs and investigation departments also send masses of “Silent SMS”. In 2012, the customs authorities generated almost 200,000 impulses for localisation, and in the following six months there was a further strong upward trend. Even though the Military Counterintelligence Service (MAD) practically even uses a “silent SMS”, this was at least openly communicated six years ago. The figures for the Federal Intelligence Service (BND), on the other hand, have always been secret.

As for the sudden secretiveness also for the Office for the Protection of the Constitution, the Ministry writes that the information requested contained information that allowed conclusions to be drawn about “reconnaissance activities and analysis methods”. The number of text messages “could allow persons in the target spectrum” of the measures to “adapt to the procedures and capabilities of the security authorities and accordingly switch to other communication channels”.

This may be true from the point of view of the authority. However, it does not explain why the figures on “Silent SMS” are only now no longer openly communicated. In addition, the answer could have been upgraded to “For official use only”, which would continue to be sent to MPs by in-house mail. The information was however classified completely as “Secret”. That is the highest secrecy level in the Bundestag, the answer may be seen only by particularly authorized persons in the special chamber for secret documents.

Rapid increase in Berlin and Schleswig-Holstein

Police telecommunications surveillance in Germany is actually a matter for the federal states. Therefore the figures of the federal authorities are not very meaningful. A look at the federal states shows a clear increase in the sending of “Silent SMS”. In 2015, the Berlin police sent around 138,000 of those text messages, and in 2018 the number more than tripled. In Schleswig-Holstein, around 45,000 “silent SMS” were used in 2016, and this figure was already reached in the first half of 2018. A similar increase can be seen in Rhineland-Palatinate and Brandenburg. There, the method is referred to as “0-SMS”.

Many other inquiries under the Freedom of Information Act were rendered void. Federal states such as Bavaria have not enacted such a law, others such as Saarland or Saxony-Anhalt demand deterrent fees. Most ministries keep information on the Office for the Protection of the Constitution under lock and key. Where they are communicated, however, the figures are comparatively low. That shows that above all the federal domestic secret service is responsible for the secret localization.

The overview of the investigation procedures for which “Silent SMS” are used in the federal states is confusing. In addition, not all authorities are required by law to record the frequency (e.g. daily or hourly) at which a person is secretly texted. In the state of Brandenburg, the frequency of the measure could only be quantified “on the basis of accounting”. In fact, in some federal states “Silent SMS” are sent by private service providers. This responsibility will soon be transferred to “Joint Competence and Service Centres in the Field of Police Telecommunications Surveillance”, which will be established in Hamburg and Leipzig.

Little change after court ruling

With a judgement of the Federal High Court the dispatch of “Silent SMS” should be actually contained. One year ago, the judges had demanded that a court order in accordance with § 100i Paragraph 1 No. 2 StPO be obtained for the measure. The Court has thus joined the criticism that the “Silent SMS” cannot be based on the regulations for the surveillance and recording of telecommunications. This is because telecommunications surveillance may only be carried out as a passive measure, but the sending of a text message by the police is an active measure which, moreover, does not originate from the persons concerned.

The judges regard the generation of such data as “active influence on the existing database”, which requires its own authorization. However, the judgment published on 8 February 2018 does not appear to have any major influence on the method. Perhaps the decline in the Federal Criminal Police Office is due to the judgement, but no change can be seen in the Federal Police or in the federal states. This is another reason why the classification of the figures for the Federal Office for the Protection of the Constitution is annoying, as it would be interesting to find out whether the Court’s ruling could also contain surveillance by the secret services.

Image: “Silent SMS” generate connection data in a radio cell. This data is then requested by the authorities from the mobile phone providers (CC-BY-SA 2.0, devopstom).