Telecommunications surveillance

Measures for Telecommunications Surveillance Pursuant to Sections 100a et seq. of the German Code of Criminal Procedure (StPO) in Preliminary Tax Proceedings

Defendants in criminal tax proceedings often fear that secret investigative measures will be taken against them. In particular, they assume that their telephones are being tapped. These concerns are all too understandable, especially if the defendant in criminal tax proceedings has already been confronted with a search for which he is regularly completely unprepared. Often, in these cases, the defendant's home and business premises have also previously been scouted undercover by tax investigators. If the files of the criminal tax proceedings are then available, however, it is extremely rare to find protocols of a telecommunications surveillance (TKÜ).

In the following, we will briefly describe when telecommunications surveillance can actually occur and which measures are actually permissible. The two most important standards, namely Section 100a of the German Code of Criminal Procedure (StPO) (surveillance of telecommunications) and Section 100g of the German Code of Criminal Procedure (StPO) (collection of traffic data), will be discussed. Furthermore, the main changes to § 100a et seq. as a result of the "Act on the Reorganization of Telecommunications Surveillance and Other Covert Investigation Measures and on the Implementation of Directive 2006/24/EC" and the "Annual Tax Act 2008" will be presented.

Surveillance of telecommunications pursuant to Section 100a of the German Code of Criminal Procedure (StPO)

Pursuant to Section 100a of the German Code of Criminal Procedure (StPO), telecommunications may be intercepted by order of the court (Section 100b StPO). The prerequisite is that one of the criminal offenses listed in Section 100a (2) of the German Criminal Police Code (StPO) has been committed, that it is serious in the individual case, and that investigating the facts of the case or determining the whereabouts of the defendant would otherwise be considerably more difficult or futile.

The "Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG" (Law on the Reorganization of Telecommunications Surveillance and Other Covert Investigative Measures and the Implementation of Directive 2006/24/EC) and the "Jahressteuergesetz 2008" (Annual Tax Act 2008) have also included tax crimes in the catalog of Section 100a of the Code of Criminal Procedure for the first time. In the area of tax evasion, however, this is "only" gang-based tax evasion of sales or excise taxes, which was deleted as a separate offense (Section 370a AO a.F.) and introduced as a regular example in Section 370 (3) sentence 2 no. 5 AO.

The term telecommunications covers the technical process of sending, transmitting and receiving messages of any kind in the form of signs, speech, images or sounds by means of technical equipment or systems that can send, transmit, convey, receive, control or monitor electromagnetic or optical signals identifiable as messages. This includes operations associated with the sending and receiving of messages by means of telecommunications equipment. However, a distinction must be made within the process. Everything in the process of sending is covered. The sole process of receiving is not covered. § Section 100a of the Code of Criminal Procedure thus only covers the area "between" two devices. Once the message has been received by a terminal device, the scope of Section 100a of the Code of Criminal Procedure has been exited.

Special features must be taken into account when communicating by email. The sending of an email takes place in three phases. The first phase covers the sending of the message until it arrives at the provider. The second phase concerns the resting of the message on the memory. The third phase involves the retrieval of the message by the recipient. For phases one and three, § 100a StPO is relevant. For the "intermediate phase", i.e. the storage of the email on the provider, this was long disputed. According to supreme court rulings, the correct basis for authorization for the time during which the email is stored at the provider is not § 100a StPO, but a "simple" seizure and confiscation pursuant to § 94 StPO. A simple initial suspicion is sufficient for this. In addition, there does not have to be a so-called catalog offense of § 100a StPO. Communication by email is therefore particularly risky.

Section 100a of the Code of Criminal Procedure also covers Internet telephony (VoIP telephony), in particular conversations via "Skype". Surveillance is carried out by means of so-called source TKÜ, in which the computer used is infiltrated by spy software. This also makes it possible to take screenshots of the screen content, including chat transcripts, for example.

However, telecommunications surveillance must not become an illegal online search. This means that only the monitoring of the ongoing telecommunications process should be affected and no data on the device may be spied out.

However, it is also permissible to monitor persons whose connection the accused is using, even if they have no knowledge of this.

However, in the case of telecommunications surveillance, the core area of private life remains protected. This includes expressions of the innermost feelings or forms of expression of sexuality. It does not include the content of conversations that are directly related to specific criminal acts. If information from the core area of private life has been recorded, it must be deleted immediately and this process must be recorded in the files, Section 100a (4).

Collection of traffic data pursuant to Section 100g StPO

Pursuant to Section 100g of the Code of Criminal Procedure, traffic data may be collected without the knowledge of the person concerned. The term traffic data is legally defined in § 3 No. 30 TKG and includes data that is collected, processed or used in the provision of a telecommunications service. This also includes personal authorization codes or access data (PIN, PUK), call numbers or identifiers of the connections involved, as well as the start and end of the relevant connection, and, in the case of mobile communications, location data. Location data is also collected from devices in stand-by mode, i.e. devices that are only switched on.

In contrast to Section 100a of the German Criminal Police Code (StPO), it is not the content that is collected here, but only the connection data.

Even though Section 100g (1) sentence 1 no. 1 StPO refers to the catalog of Section 100a (2) StPO, this is not exhaustive. This is made clear by the word "in particular". However, the offense must be of considerable importance and one of medium criminality. With regard to criminal tax law, this is likely to be the case for tax evasion in a particularly serious case (Section 370 (3) AO). The fact that the Federal Constitutional Court has declared data retention to be unconstitutional does not mean that the "all-clear" has been given in this respect. Depending on how long the provider of publicly accessible communications services stores certain data for end users, it may be possible to subsequently determine the whereabouts of the accused (i.e. his or her cell phone) in particular.

Utilization in criminal tax proceedings

In criminal tax proceedings, information obtained by the public prosecutor's office and/or the tax authorities from criminal investigations may also be used in taxation proceedings, but only if the tax authorities have either obtained the information lawfully as part of their own investigations or if they are permitted to provide information to the tax authorities in accordance with the provisions of the Code of Criminal Procedure. Pursuant to Section 477 (2) sentence 2 of the Code of Criminal Procedure (StPO), the use of findings from non-criminal investigations is only possible in criminal tax proceedings that are already pending if the measure could also have been ordered there.