Less „Silent SMS“ from German police, but more secrecy for domestic intelligence

The blog Netzpolitik.org graphically displays the sending of „Silent SMS“ every six months. This shows the extent to which police forces and secret services use mobile phones as tracking bugs. Because of this „condensation“ of information worthy of protection, the figures for the Office for the Protection of the Constitution are classified as „secret“.

German Federal authorities currently use significantly less „Silent SMS“ than in previous years. This is shown by the actual figures, which the Federal Ministry of the Interior (MoI) provides on request every six months. Accordingly, the Federal Police (BPOL) sent 20,152 „Silent SMS“ in the first half of 2019 (second half of 2018: 50,654; first half of 2018: 38,990). There was also a decrease by the Federal Criminal Police Office (BKA). In the first half of 2019 the figure was only 6,302, compared with 21,337 secret text messages previously sent by the authority.

„Silent SMS“ are not visible on the mobile phone. Their sending leaves traces of connection data without the users noticing. This location data of the telephones can then be queried by the authorities from the mobile phone providers and are used to create movement profiles in real-time.

Secret services use G10 law

The BKA sends „Silent SMS“ for danger prevention and criminal prosecution. Real-time location data extraction is based on a court order. The Federal Police and Customs also obtain an order before the measure is carried out, as does the Federal Prosecutor General (GBA). The Federal Intelligence Service (BND) sends the „Silent SMS“ on the basis of the BND and G10 laws, and the Federal Office for the Protection of the Constitution (BfV) and the Military Counter-Intelligence Service (MAD) also base their „Silent SMS“ on the G10 laws.

While the Government provides information on „Silent SMS“ from the BKA and the Federal Police, no information has ever been given on the BND. The MoI developed similar secrecy six years ago for the Ministry of Finance, whose customs crime and investigation departments also send masses of „Silent SMS“. In 2012, the customs authorities generated almost 200,000 „locating impulses“, and in the following six months there was a further strong upward trend.

BfV sends hundreds of thousands of „locating impulses“

Since this year, the MoI has also classified the figures for its domestic intelligence service as secret. The BfV’s figures were usually around 100,000 „locating impulses“ per half-year up to the point of secrecy and thus significantly higher than those of the other federal authorities. In the 2nd half of 2017, the secret text messages even rose to a peak value of almost 180,000.

The reason for the classification as „secret“ is that the information is particularly in need of protection, since „the regular half-yearly reply […] can condense individual information into a comprehensive situanional picture“. The half-yearly queries led to a „condensation“, with which conclusions could be drawn about the „technical capabilities“ of the domestic secret service. The Scientific Services of the Bundestag, on the other hand, emphasise that the Government must seek milder, equally suitable means instead of classifying the information previously disclosed openly as „secret“.

No „human-induced exchange of information“

The noticeable shrinkage in the sending of „Silent SMS“, which can only be seen for the Federal Police and the BKA, could be traced back to a ruling of the Federal Court of Justice (BGH) last year. The BKA, the GBA, the Federal Police and the Customs had obviously based the dispatch and the subsequent collection of location data of the telephones on § 100a StPO (the German code of criminal procedure). The paragraph regulates passive telecommunications surveillance, i.e. the mere interception of calls. The court had criticized this, because the location data are not generated by the users of the telephones, but only by the „locating impulses“ of the authorities. According to the BGH, a „Silent SMS“ lacks „a human-induced exchange of information“.

Nevertheless, the „Silent SMS“ may be used if there is a suspicion of crimes of „considerable importance“. According to the BGH, this results from § 100i StPO. The provision regulates the use of technical means to determine the location of a mobile phone and was tailored to IMSI Catcher when it was adopted in 2002.