Implementation of surveillance measures; provision of information

(1) A person operating a telecommunications installation used to provide publicly available telecommunications services must 1. from the time operations commence, maintain, at its own expense, technical facilities for implementing statutorily provided measures for the surveillance of telecommunications, and take organisational precautions for their immediate implementation; 2. in cases where the capability for surveillance can be ensured only through the interaction of two or more telecommunications installations of one or more operators, provide, from the time operations commence, the automatic control capabilities in its telecommunications installation necessary for this purpose, for capturing and extracting the telecommunications to be monitored, and enable such control; 3. without delay after commencing operations, a) notify the Federal Network Agency that it has taken the precautions under point 1, and b) name an authorised recipient for service within Germany, at which service can be effected of orders addressed to it for the surveillance of telecommunications and related decisions and documents; 4. provide the Federal Network Agency, free of charge, with proof that its technical facilities and organisational precautions under point 1 comply with the provisions of the statutory instrument under subsection (5) and the Technical Guideline under subsection (6); for this purpose, it must, without delay, but no later than one month after commencing operations, a) send the Federal Network Agency the documents it requires to prepare the examinations to be carried out by the Federal Network Agency in the course of the proof, and b) arrange an examination appointment with the Federal Network Agency for providing this proof; it must support the Federal Network Agency in the examinations required for the proof; 5. on the Federal Network Agency's specific request, in particular to remedy malfunctions, permit a renewed examination, free of charge, of its technical and organisational precautions; and 6. tolerate the installation and operation, on its premises, of technical means of the bodies entitled to conduct surveillance of telecommunications for carrying out measures under sections 3, 5, and 8 of the Article 10 Act or under sections 19, 24, 26, 32, and 33 of the Federal Intelligence Service Act, and grant employees of the body competent for these measures, and, for measures under sections 3, 5, and 8 of the Article 10 Act, the members and staff of the G 10 Commission (section 1(2) of the Article 10 Act), access to these technical means for performing their statutory functions.
(2) A person providing publicly available telecommunications services and making use, for this purpose, of an operator of a telecommunications installation, must 1. satisfy itself, in selecting the operator of the telecommunications installation used for this purpose, that it can implement orders for the surveillance of telecommunications without delay in accordance with subsection (1), the statutory instrument under subsection (5), and the Technical Guideline under subsection (6), and 2. notify the Federal Network Agency, without delay after commencing its service, a) which telecommunications services it provides, b) by whom surveillance orders concerning its users are implemented, and c) to which body located within Germany service of orders for the surveillance of telecommunications and related decisions and documents can be effected.
(3) Changes to the data underlying the notifications under subsection (1), point 3(b), and subsection (2), point 2, are to be notified to the Federal Network Agency without delay. In cases where provisions under subsection (6) do not yet exist, the obligated party must design the technical facilities under subsection (1), points 1 and 2, in consultation with the Federal Network Agency, which makes corresponding determinations in consultation with the entitled bodies.
(4) Subsections (1) to (3) do not apply insofar as the statutory instrument under subsection (5) provides exemptions for the telecommunications installation. Section 100a(4), first sentence, of the Code of Criminal Procedure, section 2(1a), first sentence, points 1 to 3, of the Article 10 Act, section 51(6), first sentence, of the Federal Criminal Police Office Act, section 25(1), first sentence, of the Federal Intelligence Service Act, and corresponding provisions of Land law on preventive police surveillance of telecommunications remain unaffected.
(5) The Federal Government is empowered, by statutory instrument with the consent of the Bundesrat, 1. to lay down rules a) on the fundamental technical requirements and organisational key points for implementing surveillance measures and providing information, including implementation of surveillance measures and provision of information by a vicarious agent engaged by the obligated party, and the storage of order data, and on the duties to cooperate in technical investigative measures relating to mobile terminal equipment under section 171, b) on the regulatory framework for the Technical Guideline under subsection (6), c) for the proof under subsection (1), point 4, d) for the renewed examination under subsection (1), point 5, e) for the detailed arrangement of the duty to tolerate under subsection (1), point 6, and f) for the detailed arrangement of the duties to make provision under subsection (11), and 2. to determine a) in which cases and under which conditions compliance with specific technical requirements may temporarily be waived, b) that the Federal Network Agency may, for technical reasons, permit exemptions from fulfilling individual technical requirements, and c) for which telecommunications installations and telecommunications services provided by means of them, for fundamental technical reasons or reasons of proportionality, no technical facilities need to be maintained and no organisational precautions need to be taken, by way of derogation from subsection (1), point 1.
(6) The Federal Network Agency lays down the technical details for implementing measures for the surveillance of telecommunications, in particular technical details necessary to ensure complete capture of the telecommunications to be monitored, for providing information, for designing the handover point to the entitled bodies, for storing order data, and for the duties to cooperate in technical investigative measures relating to mobile terminal equipment under section 171, in a Technical Guideline drawn up in consultation with the entitled bodies and with the participation of the associations and the manufacturers. In doing so, international technical standards are to be taken into account; deviations from the standards are to be given reasons.
(7) A person manufacturing or marketing technical facilities for implementing surveillance measures may require the Federal Network Agency to examine, in the course of a type sample examination in conjunction with specific telecommunications installations, whether the legal and technical provisions of the statutory instrument under subsection (5) and the Technical Guideline under subsection (6) are satisfied. The Federal Network Agency may, exercising its due discretion, temporarily permit deviations from the technical requirements, provided that implementation of surveillance measures is fundamentally ensured and only an insignificant need for adaptation arises for the facilities of the entitled bodies. The Federal Network Agency must notify the manufacturer or marketer of the examination result in writing. The examination results are taken into account by the Federal Network Agency in the proof of conformity of the technical facilities with the applicable technical provisions that the obligated party must provide under subsection (1), point 4.
(8) A person obligated under subsection (1) or (2), in conjunction with the statutory instrument under subsection (5) and the Technical Guideline under subsection (6), to take precautions, must satisfy the requirements no later than one year after they become applicable to it, unless a longer period is set there for specific obligations. Technical facilities designed in accordance with this Guideline and free of defects, for telecommunications services already offered by the obligated party, must, in the event of an amendment of the Guideline, satisfy the amended requirements no later than three years after its entry into force. Where a deficiency is discovered in the technical or organisational precautions taken by the obligated party, in the course of the proof under subsection (1), point 4, or a renewed examination under subsection (1), point 5, it must remedy this deficiency within a reasonable period in accordance with the Federal Network Agency's requirements; where a deficiency is discovered in the course of operation, in particular on the occasion of surveillance measures to be carried out, it must remedy this without delay. Insofar as a type sample examination under subsection (7) has been carried out for the technical facility, and time limits for remedying deficiencies were set in the course of it, the Federal Network Agency must take these time limits into account in its requirements for remedying deficiencies under the third sentence.
(9) Every operator of a telecommunications installation that, as part of its offering to the public, leaves network termination points of its telecommunications installation to others, is obliged to provide, on request, to the bodies statutorily entitled to conduct surveillance of telecommunications, without delay and with priority, network termination points for transmitting the information arising in the course of a surveillance measure. The technical design of such network termination points may be regulated in a statutory instrument under subsection (5). For provision and use, the tariffs generally applicable to the public apply, with the exception of special tariffs or surcharges for priority or early provision or fault repair. Special contractually agreed discounts remain unaffected by the third sentence.
(10) Telecommunications installations that are operated by the statutorily entitled bodies and by means of which interference is intended with the secrecy of telecommunications or with network operation, are to be technically designed in agreement with the Federal Network Agency. The Federal Network Agency must comment to the entitled body on the technical design within a reasonable period.
(11) Operators of public mobile networks that, by arrangement, connect users of an operator of public mobile networks within the European Union and connect them to their telecommunications installation, must ensure, in the surveillance copy to be provided by them, that encryption applied on the network side by the foreign operator to its users is removed, insofar as international technical standards are available for this, as described in the Technical Guideline under subsection (6).
(12) The provisions of subsection (1), point 3(b), and subsection (2), point 2(c), do not apply within the scope of application of Directive (EU) 2023/1544, in the version of 12 July 2023.