We from AKVorrat have long demanded a full joint evaluation of all surveillance measures that would evaluate all measures, as defined by different laws, as to their conformity with basic rights. We are currently developing a catalogue (HEAT) as a means to evaluate all terror-related laws in Austria. No such evaluation was held for the State Protection Law, so nobody can really answer the question: Is this deep encroachment in our basic rights really justified, is this law really necessary, is it worth the price we are paying.

Although both political parties in government have repeatedly said that a thorough evaluation was done and intensive debates held, there is not much to show for it. Advance consultations were not held publicly, and the many critical advisory opinions that were given once the draft was made public have not found entry into the final legislation. Minor changes were made, but only on those points that had aroused critical statements by the media, and most of them were cosmetic. Basic criticism was deftly evaded. The compromises that were struck shortly before the final reading of the law in full session could neither be thoroughly discussed nor evaluated in the remaining time, members therefore had to vote at short notice on a basic law, with no proper evaluation of the far-reaching consequences – the final text reached members desks a day before the final reading.

When a law encroaches directly on basic rights, as the PStSG does, it requires stringent rules so that legal subjects may know in advance what to expect from the authorities. There should also be clear limits to interventional rights, as defined by the European Convention on Human Rights. In detail, such laws may not allow discretionary decisions or latitude of judgement by the authorities (see detailed decisions by the Constitutional Court and the ECHR). The new law shows a series of obvious shortcomings in this respect, as we from AKVorrat have been saying all along.

The draft contains a row of insufficiently defined terms, beginning with the definition of its basic purposes. “Advance protection from attacks endangering the constitution” is open to a wide array of interpretations. On the one hand, it could result in improper use of anti-terror clauses in the criminal code by the authorities, on the other hand, due to lack of clear definitions, it is extremely difficult for individual subject to adjust his or her actions accordingly. Another example is the term “ideologically motivated criminal act”. “Ideology” is an emotionally charged term that should not be used in the context of legal norms.

Background

State protection instead of Constitutional Protection

In the final text, the state is defined only as the sum of the state institutions that should be protected. Protection of the constitution and the fundamental rights of the population seem no longer to part of the duties of the BVT.

Potential for abuse due to redundancies

The Federal Office and local offices affiliated with local state police headquarters will continue to be security agencies. As such, they should be following the strict rules defined by PStSG; but as they act as part of local police, they only have to follow the less strict rules of SPG . This would result in one and he same authority acting on the basis of two separate laws: An official can choose whether he needs to get a judge's permission to demand telecommunications data from an internet service provider or not. He could, in theory, decide that following stricter rules, he may require an ISP to provide all connection data (which is not permitted as a simple police inquiry), once a “religious or ideological motivation” is assumed in an offense, thus bypassing the legal protection that lawmakers originally intended.

No judicial control

The final text provides for permission (by majority) by a legal protection senate only for two measures (undercover enquiries and wire taps), all other surveillance measures require a simple permission. There is no control by an independent judiciary. At the same time, the same government presented a law for enquiries in financial transactions, which includes supervision by independent judges from the Federal Court of Finance plus additional supervision by the office of legal protection.

To widely defined offence catalogue

For one and the same offence, different enquiry empowerments may be used. If a “religious” or “ideological” motivation is suspected, authorities may choose from a wide arsenal of means. Minor offences (such as vilification of state symbols) have been eradicated, but there are still offences that have nothing to do with anti-democratic acts or acts against the state. For instance, completely apolitical soccer fans may become a target for surveillance if they communicate electronically with somebody that the authorities deem as somebody that might set a criminal act such as breach of the public peace, (§ 274 section 2 of the Penal Code).

Insufficient definition of “attacks endangering the constitution” (§ 6 section 1 PStSG)

Paragraph 6 PStSG, defining the duties and responsibilities of the newly created authority, is of central importance. Apart from a very unclear second section as to what exactly is to be understood by “preventive protection”, authorities may become active long before any criminal deed is impending or has occurred, using all possibilities vested by the new law.

Far-reaching opportunities for data collection and processing

The collection of personal data of suspects and their contact persons will be allowed for “assessment of the likelihood of a hazard” in the future. § 10 / 5 for instance previews interpretation of all data from “all available sources (…) for instance by tapping all available data on the internet”. A delimitation to a dragnet investigation (not provided for by the SStGS) seems very difficult, to say the least. There is no provision for a clear documentary obligation (for instance in a written report) of measures taken for procedural purposes. This means that the target subject’s entire internet usage may be collected and evaluated. This implies that most warrants for (undercover) investigations are not linked to a specific crime or suspicion of a crime. It suffices if authorities want to analyze an abstract risk scenario. This comprehensive collection of data on potentially each and every one of us may be stored for six years. The circumstances under which this date is deleted are unclear and badly formulated, especially since they may not be deleted if there is “sufficient suspicion that a person or a group of persons might give reason again (…) for further surveillance”. In particular there is no provision (and this is particularly disquieting) for the concerned subject him- or herself to demand deletion of the concerned data sets. There is furthermore no procedural mechanism for regular control and assessment of commensurability of storing concerned data. The commissioner for legal relief and protection has access to the data base, but may not access stored data on trusted third party person-related data according to § 12 / 7.

Numerous technical surveillance possibilities

The use of tracking devices and IMSI -catchers will be permitted if the observation would otherwise be very difficult or else considered hopeless . Here, too, it is not defined how the fact is supposed to be proven. Furthermore, there are no provisions on how to eliminate abuse of such catchers, as the ones freely available are all capable of content surveillance, without the surveyed subject’s notice.

The periods for the permitted use of such special investigative means will be increased. According to the old law of the Code of Criminal Procedure, maximum period is three months, under condition of a court order. Under the new legal system of PStSG even six months are possible, and all it takes to prolong the observation is the approval of the officer for the protection of rights at the Interior Ministry. Repeated prolongations are also possible.

Missing legal protection

The majority of surveillance possibilities given in respect to storing person-related data in the central data base show legal protection deficits. In general, given provisions for legal protection do not fulfil their purpose and do not counter balance the high intensity surveillance possibilities available through this law.

Paid informers

The legalization of paid undercover agents without judicial review is also extremely problematic. The current draft of the law shows very little sensitivity to issues such as the entrapment, and it draws no lessons from the huge scandal involving the NSU murders in Germany.

Police and intelligence services in a single authority

Due to the extremely vague definition of an “attack endangering the constitution” and the expansion of surveillance powers to the “evaluation of the likelihood of a threat”, a police force with the powers of an intelligence service is created. The principle of mandatory prosecution of offenses and the principle of opportunity are being breached. The BVT and - even worse - the federal offices become uncontrollable authorities with officials who are subject to almost no limits in their operations and don't have to answer to anyone. The next police scandal in BVT is inevitable.

Many evaluations, no reaction

Overall there were eighteen critical evaluations of the State Protection Law. They were from the Union of Judges, Amnesty International, the Chamber of Workers, the Chamber of Commerce, the Austrian Conference of Bishops, the Lutheran Evangelical Church, the Chamber of Medical Doctors, the Association of ISPs, the Chamber of Lawyers, the Parliamentary Ombudsman, journalists, several NGOs, trade unions, and AKVorrat. Many evaluations had serious provisos, some questioned the entire law itself. The only positive evaluations came from other ministries or state (Länder) governments, none of them had more than three pages A4 of explanatory text.