Germany's IT Security Policy: From the Cipher Office to the State Trojan

Abstract

Germany’s federal IT security agency, the BSI (Bundesamt für Sicherheit in der Informationstechnik), opened on 1 January 1991 as the civilian successor of the foreign intelligence service’s cipher office, and has spent its existence answering to the same Interior Ministry that runs the police and the domestic intelligence service. The country’s IT security policy has had two sides ever since: protecting systems, through the BSI, the 1999 commitment to free encryption and the IT Security Acts of 2015 and 2021, and breaking into them, through the telecommunications interception rules (TKÜV) and the Staatstrojaner, the state’s own malware. In 2008 the Federal Constitutional Court created a new fundamental right to the confidentiality and integrity of IT systems; in 2011 the Chaos Computer Club showed that a trojan used by Bavarian police could do more than the law allowed; and in 2017 the Bundestag authorised the police to hack suspects’ devices anyway.

The Cipher Office

West Germany’s government cryptography was run for decades by the Zentralstelle für das Chiffrierwesen (ZfCh), the Central Office for Encryption, a department of the Federal Intelligence Service (BND). It designed and approved the ciphers that ministries and embassies used, and it was part of an intelligence service whose own business included reading other countries’ ciphers, in some cases through rigged machines sold by Crypto AG (see Crypto AG and Operation Rubicon).

As computers spread through the administration in the 1980s, the cipher office’s job grew into computer security in general. On 1 June 1989 it was renamed the Zentralstelle für Sicherheit in der Informationstechnik (ZSI). The BSI-Errichtungsgesetz turned it into a federal agency outside the BND, under the Interior Ministry, and the BSI started work in Bonn on 1 January 1991. Its first president was Otto Leiberich, a mathematician who had worked at the BND since 1957 and had headed the cipher office since November 1972.

For its first two decades the BSI was a modest technical agency. It evaluated and certified security products, approved equipment for classified government communication, and published the IT-Grundschutz catalogues, a long and detailed manual of standard security measures for ordinary organisations that became the reference for German public administration and many companies. It had a few hundred employees. Its parent ministry was also responsible for the Federal Criminal Police Office (BKA) and the domestic intelligence service (BfV), the agencies that wanted access to encrypted communication. That conflict of interest became the recurring criticism of the BSI.

Free Encryption

In the 1990s the encryption debate was the same in Germany as in the United States (see The Crypto Wars of the 1990s). Security officials asked for restrictions on strong encryption or for key escrow, and business associations and civil-liberties groups argued that weakening encryption would damage electronic commerce. The Schröder government settled it on 2 June 1999 with the Eckpunkte der deutschen Kryptopolitik, a cabinet decision that the government would not restrict the development, production or use of encryption products and would promote strong encryption as a condition of secure electronic commerce (see Phil Zimmermann and PGP). The Interior Ministry confirmed in 2015 that the principles still applied.

The commitment was to free encryption, not to the absence of surveillance. If the state could not break the encryption on the line, it would have to read messages before they were encrypted or after they were decrypted: on the device.

Interception by Regulation

Ordinary telephone interception was organised through the network operators. The Fernmeldeverkehr-Überwachungs-Verordnung, initiated in 1994, and its successor, the Telekommunikations-Überwachungsverordnung (TKÜV) of 22 January 2002, specify the technical facilities that telecommunications providers must keep ready so that a lawfully ordered interception can be carried out. Providers pay for the equipment themselves and must have it approved by the network regulator. Providers with no more than 10,000 subscribers are exempt from building it in advance; larger ones deliver intercepted data to the authorities through a SINA box, an encrypting network appliance developed with the BSI. The ordinance was revised in 2005, re-promulgated in 2017 and amended most recently in January 2026.

The ordinance assumed that the operator could see the content. By the mid-2000s the most interesting communication, Skype calls and later messenger apps, was encrypted end to end, and the operator could see only noise.

The Online Search

Germany’s police and intelligence services began to ask for the right to install software on suspects’ computers. In 2006 the Federal Court of Justice (BGH) was split on whether existing search powers covered a secret search of a PC; on 31 January 2007 its Third Criminal Senate held that without an explicit statute, a covert online search was not allowed. North Rhine-Westphalia had already written one into its law on the state’s domestic intelligence service, effective 30 December 2006.

The Federal Constitutional Court struck the provision down on 27 February 2008 (1 BvR 370/07) and in doing so created a new fundamental right, derived from the general right of personality: the Grundrecht auf Gewährleistung der Vertraulichkeit und Integrität informationstechnischer Systeme, the right to the confidentiality and integrity of information technology systems, usually shortened to the “IT fundamental right.” A covert infiltration of a computer was allowed only where there were factual indications of a concrete danger to a legal interest of overriding importance, such as human life or the existence of the state, and as a rule only with a judge’s order. Federal legislators wrote a version of these conditions into the BKA law at the end of 2008, allowing the Federal Criminal Police Office to infiltrate IT systems to prevent terrorist attacks.

The CCC Opens the Trojan

Several state police forces had meanwhile bought trojans to intercept Skype calls on the suspect’s computer before encryption, which they called Quellen-TKÜ, source telecommunications surveillance, and treated as ordinary interception rather than as an online search. On 8 October 2011 the Chaos Computer Club published an analysis of a trojan whose traces had been found on a businessman’s computer; his lawyer, Patrick Schladt, said it had been installed in 2009 during a customs check at Munich Airport, and the Bavarian police confirmed that a trojan had been used in the case. Inside was the string “0zapftis” (Bavarian for “it’s tapped,” the cry that opens the Munich Oktoberfest), and the software had been supplied by the Hessian company DigiTask.

The program did much more than intercept calls. It took screenshots of the active window, could log keystrokes, and could download and run further code from its control server at any time, which meant it could be turned into a full online search, switch on the microphone or camera, or place files on the disk. Its security was poor: data was encrypted in the weak ECB mode with the same fixed AES key in every installation, and commands were not authenticated, so that a third party who found an infected machine could control it. The Landshut regional court had already ruled in January 2011 that the surveillance in that case was unlawful, because the software took a screenshot every 30 seconds. The Interior Ministry and DigiTask said the analysed version was outdated; on 26 October the CCC published an analysis of a newer version that still loaded arbitrary code.

The CCC case changed the terms of the debate. The legal argument had been about whether the state might do something; the analysis showed that it already had, with software that its own users had not examined. The BKA promised to write its own trojan, the Remote Communication Interception Software (RCIS), and also bought the commercial FinSpy product from the FinFisher group.

Hacking by Statute

The Constitutional Court ruled again on 20 April 2016, finding several parts of the BKA law unconstitutional in their existing form while accepting covert surveillance of IT systems in principle. The government’s answer was a broad statute. On 22 June 2017, through an amendment that the coalition added late to a bill on driving bans as a criminal penalty, a route critics said bypassed the Bundesrat and public debate, the Bundestag inserted §100a (source telecommunications surveillance) and §100b (online search) into the Code of Criminal Procedure, effective 24 August 2017. For the first time police could hack devices in ordinary criminal investigations, not only to avert terrorism, for a list of serious offences. The same year the government founded ZITiS, a central office in Munich, by decree of 6 April 2017, to develop technical capabilities for the security agencies, including forensics, interception technology and cryptanalysis. It has no powers of its own; the BKA, the BfV and the federal police use its tools.

The trojans are used rarely and mostly against drug crime. Official statistics recorded twelve online searches actually carried out in 2019 and about twenty in 2021. In July 2021 the federal intelligence services received source-interception powers of their own. Civil-liberties groups filed constitutional complaints against the 2017 law.

Protecting Systems by Law

The protective side of the policy turned into legislation after 2015. The IT-Sicherheitsgesetz of July 2015 required operators of critical infrastructure (energy, water, health, finance, telecommunications and others) to meet minimum security standards and report significant incidents to the BSI. Weeks earlier, in April and May 2015, intruders had broken into the Bundestag’s network and copied more than 16 gigabytes of data, including from Chancellor Angela Merkel’s parliamentary office. German prosecutors later identified a member of Russia’s military intelligence service GRU’s APT28 unit, Dmitry Badin, and obtained an arrest warrant in 2020.

The IT-Sicherheitsgesetz 2.0, in force since 28 May 2021, gave the BSI consumer-protection tasks, a security label for consumer devices introduced in 2022, and the power to block untrustworthy components from critical networks, a clause written with Huawei’s 5G equipment in mind. The BSI roughly doubled its staff between 2016 and 2019 and had 1,733 positions in 2024. Germany implemented the EU’s NIS2 directive late: the Bundestag passed the act on 13 November 2025, more than a year after the EU deadline, extending security duties to some 29,500 companies.

The structural conflict remained. In 2007 the government had added §202c to the Criminal Code, the “Hackerparagraf,” which made it an offence to create or distribute tools intended for computer crimes; security researchers and the CCC objected that the wording covered the tools they used to find vulnerabilities. In October 2022 Interior Minister Nancy Faeser removed BSI president Arne Schönbohm after a television satire show reported indirect contacts to a Russian-linked association; the ministry later found no evidence against him. Claudia Plattner became president in July 2023. Critics have long asked for the BSI to be made independent of the Interior Ministry, so that the agency that protects systems does not report to the ministry whose agencies want to break into them.

Dead End: The Secure Back Door

German policy has tried for three decades to hold two positions at once: that strong encryption and secure systems are a public good the state should promote, and that the state needs a way into individual devices. The 1999 decision to leave encryption alone was kept. The way in became the trojan, and a trojan needs a vulnerability in the target’s software that the state knows about and does not report. Every such vulnerability is also available to criminals and foreign intelligence services who find it. The BSI, whose job is to get vulnerabilities fixed, and ZITiS and the police, whose tools depend on vulnerabilities staying open, belong to the same ministry. The 2011 trojan, with one fixed key for every installation and no authentication, showed what happened when the hacking side was built without the protecting side looking.