Does Germany’s spy law pose a threat to press freedom?

Reporters Without Borders (RSF), a Whistleblower Network organisation, and a few investigative reporters announced Thursday that they had filed several urgent motions in German courts to stop intelligence agencies using “state trojan horses” — spyware capable of reading encrypted messaging services — against individuals not under suspicion.

In June, the German parliament passed a law giving state security forces broad-ranging powers to use the spyware. This reform was part of the law that governs its various intelligence agencies. The Offices for the Protection of the Constitution is the federal and state intelligence agencies responsible for tracking extremists in Germany. The Federal Intelligence Service and the Military Counterintelligence Service are also involved.

The July reform allows agencies to install spyware (known as Source Telecommunication Surveillance or Source-TKU) in smartphones and computers. This will allow them to record calls and messages before the device can send encrypted messages to services like Threema, Signal, Skype, Signal and Signal.

This law requires internet providers to provide technical support to agencies in order to assist them with installing the spyware.

Journalists are concerned that the spyware could make it impossible for them to protect their sources’ anonymity and could be watched if they contact someone under surveillance. RSF claims its work is at risk because it cannot protect foreign investigative journalists or political contacts.

“This law is an attack upon the protection of sources within digital space,” Christian Mihr, Germany’s RSF chief, stated in a Thursday statement. Journalists working on investigations can be affected by what appears trivial at first glance.

He said, “Once more we are going against a law which experts declared unconstitutional but was nonetheless passed overhastily and without regard for its consequences for journalism or press freedom in Germany.”

RSF has warned for months about the dangers of the reform. The spyware would enable agencies to see data and documents on any device and, theoretically, alter or plant new documents.

Mihr stated, “What was taken for granted in analog life — that editorial offices can’t be searched and journalists can’t be forced to disclose their sources — must be fought for in digital life.”

During the hearings of the reform’s parliamentary committee, the potential for abuse was a constant concern. Several legal professors raised concerns. Benjamin Rusteberg, Gottingen University’s professor of law, testified before the Bundestag in May that the new regulation was “unconstitutional by all experts”.

The government presented the law to parliament in May. They argued that reform was needed because messenger services had become an ubiquitous method of communication and “especially due to current events in the field of far-right terrorist.”

The reform also allowed for greater cooperation among intelligence agencies, which was a problem that had hampered investigations in past. The government argued that the new regulations did not increase the legal scope for telecommunication surveillance but only ensured “that perpetrators could not escape investigation by choosing these forms communication.”

Critics say that the government can’t guarantee that intelligence officers won’t use the new spyware beyond their legal authority. Communication researchers Mario Martini, Sarah Frohlingsdorf and Sarah Frohlingsdorf stated that Source-TKU software can secretly access all data on a device. This is despite intelligence officers only being allowed to monitor communications.

RSF and other plaintiffs are calling for a new regulation to specifically ban surveillance of journalists to help investigate suspects.