The virtual agents are allowed to commit crimes if it serves to spy on extremists. Constitutional law experts take a critical view of this – and complain that there is a lack of an adequate legal basis.
Vaccination opponents and corona deniers have also been targeted by the Office for the Protection of the Constitution. The opinion of the citizens does not concern the state at first.
In order to track down extremists on the Internet, the German Office for the Protection of the Constitution operates hundreds of fake accounts. Employees of the Federal Office and the state offices slip into false identities, put on wigs, feign normal life on Instagram with staged photos in order to be as credible as possible. They even commit crimes. The purpose: to gain the trust of extremists and enemies of the state in order to be admitted to their chat rooms and thus be able to observe what they are doing.
That this is happening is no secret, but to what extent it is. The authority does not confirm numbers. The “Süddeutsche Zeitung” recently spoke to such a virtual agent and reported on her everyday life. When asked, the domestic secret service confirmed the contents of the report, but at the same time emphasized that the interlocutor was an agent of one of the 16 German state offices for the protection of the constitution, not the federal office.
There is also no information on the question of how many of the so-called virtual agents are in use overall and how many false accounts and identities are maintained – too much transparency is only harmful. The agents hang out on Internet forums, particularly on Telegram, a platform notorious for not censoring content. All kinds of extremists gather here, all over the world. From the point of view of the state, it is difficult to get at them other than by “apparent participation”. The murder of the Hessian CDU politician Walter Lübcke, who advocated the welcome culture, was the trigger for the massive use of this new method of information gathering in 2019. Right-wing radicals had massively rushed online against Lübcke – that may have led to the crime.
Citizens’ opinions are not the government’s business
One thought might have been that if one had been on the Internet in the right forums at the time, the murder might have been prevented. Therefore, the protection of the constitution feel absolutely right with their invasive approach. However, the demarcation between useful and harmful, permitted and forbidden is difficult in several respects. And the legal basis is also questionable.
First of all, it is none of the state’s business if citizens reject it. “The state may only be interested in the political opinions of citizens if it respects the fundamental right to freedom of expression,” says Hamburg constitutional law teacher Hans Peter Bull. “This limit has often been exceeded in the past. The authorities for the protection of the constitution have done a lot of snooping by observing fellow citizens because of their radically critical opinions and creating dossiers about them.
Bull sees the new practice accordingly critical. “The authorities for the protection of the constitution should collect and evaluate news, but not participate in the creation of news themselves,” he says. “Apparently the authorities think that the purpose of recognizing the personal core of extremist efforts justifies ‘playing along’ in the relevant circles and accept that the anti-constitutional efforts are even strengthened as a result.”
Lessons from the failed NPD ban process
Bull represented the federal government in the NPD ban process, which failed in 2003. The Federal Constitutional Court rejected a ban on the right-wing extremist party mainly because it was infiltrated in large numbers by agents from the Office for the Protection of the Constitution. Some of them were under contract with the Office for the Protection of the Constitution for more than 20 years. They held offices and posts in the party. The offered evidence of anti-constitutional efforts was considered contaminated because of the high level of government enforcement. A similar danger must now be avoided.
“The practice of obtaining information through informants at the time was rather harmless compared to the systematic participation of the intelligence officers in the internal exchange of the observed groups and was overrated by the three decisive judges of the Federal Constitutional Court at the time,” said the 85-year-old Bull, himself a social democrat , the NZZ. Six of the eight Senate members of the Federal Constitutional Court must vote for a party ban; in the case of the NPD, however, there were three dissenting votes, which is why the proceedings were discontinued.
The Berlin lawyer Bijan Moini also finds the practice of obtaining information through “virtual agents” problematic. “I see it extremely critically that people who are assigned to the state engage in hate speech online and that they encourage others to engage in hate speech,” says the 38-year-old, who introduced the Bavarian Constitutional Protection Act for the Society for Freedom Rights in April brought down by the Federal Constitutional Court in Karlsruhe.
“On the other hand, I recognize that in certain cases it is necessary to do this in order to build trust with potentially very dangerous people,” says Moini. It is all the more important that the Federal Constitutional Court has made it clear that this is only possible under certain conditions and not just like that: “The Office for the Protection of the Constitution cannot simply say: We find this group of ‘lateral thinkers’ totally interesting, so let’s go in there now. »
But it sounded similar with the Social Democratic Minister of the Interior, Nancy Faeser, when she presented the report for the protection of the Constitution in June. She had created a new observation category, the “constitutional delegitimization of the state”, which primarily included the activities of opponents of vaccination and corona measures skeptics. Faeser said it was right for the state to take a differentiated look at such a new scene and not clumsily assign it to an existing category such as right or left. But she didn’t seem to have any qualms about observing the “lateral thinkers” at all.
Criminal offenses are allowed, controlling influence is not
In other respects, too, the protection of the constitution move in a gray area. Any collection of data is an encroachment on fundamental rights that requires a legal basis. The “undercover employees” may collect information and collect data, and within certain limits also commit crimes, but there must be no “controlling influence”. This is the law. As soon as action has to be taken, it is obligatory to hand the matter over to the police. Here, however, the Office for the Protection of the Constitution is not allowed to tell the police everything it knows, but may only release data that the police should have been able to collect themselves – good for fundamental rights, bad for the fight against terrorism. That does not always work, and the separation requirement confirmed by the highest court is not always observed.
This clear separation between the responsibilities of the Office for the Protection of the Constitution and the police was only confirmed by the Federal Constitutional Court in April, when it overturned the Bavarian Law for the Protection of the Constitution due to three constitutional complaints. The Christian Socials had given their constitutional protection an excessive number of powers. At that time, the Society for Freedom Rights raised constitutional complaints against three members of the “Association of Victims of the Nazi Regime”. One was represented by the Berlin lawyer Moini.
When the Federal Constitutional Court announced the decision that the Bavarian law gives the protection of the constitution too far-reaching powers and is therefore partly unconstitutional, the FDP, among others, rejoiced. As part of the traffic light government, she has already made a legal reorganization of the protection of the constitution. Conflicts are already emerging here, as the Liberals are much more reluctant to intervene in fundamental rights than, for example, Interior Minister Faeser – as was recently seen with the topic of data retention. The Bavarian regulation on retained data was overturned by the Federal Constitutional Court, as was that on undercover employees. So it may well be that the conditions for the use of virtual agents will become somewhat stricter in the future.