Telekommunikationsüberwachung am Scheideweg: Zur Regulierbarkeit des Zugriffes auf verschlüsselte Kommunikation

2025-11-16

AI Summary

Strong end-to-end encryption (E2EE) undermines lawful interception capabilities, creating a governance dilemma between privacy protection and public security. Existing telecommunications surveillance laws exhibit significant applicability gaps in Internet-based communication environments. Method: This study systematically examines the legal limitations of traditional wiretapping frameworks through integrated legal hermeneutics and communications protocol architecture analysis. It evaluates the technical feasibility of current interception interfaces and clarifies service providers’ statutory obligations under encryption. Contribution/Results: The paper proposes the novel regulatory principle of “functional equivalence plus minimum necessity”: ensuring communications confidentiality as a prerequisite while enabling lawful interception as the objective, thereby establishing a technology-neutral, proportionate, and cooperative duty framework. It specifies the legal implementation conditions for regulating encrypted communications and provides a normative pathway that is legally sound, operationally viable, and technically feasible—effectively reconciling fundamental rights to privacy with legitimate public safety imperatives.

Technology Category

• Philosophy and Ethics of AI: AI & Law, Justice, Regulation & Governance
• Machine Learning: Privacy
• Natural Language Processing: Ethics — Bias, Fairness, Transparency & Privacy

Application Category

• Security and Privacy: Privacy-enhancing technologies
• Responsible Web: Measurement, analysis, and circumvention of Web censorship
• Systems and Infrastructure for Web, Mobile and WoT: Energy management for devices in mobile Web and WoT environments

Abstract

Personal communication using technical means is protected by telecommunications secrecy. Any interference with this fundamental right requires a legal basis, which has existed for many years for traditional communication services in the form of telecommunications surveillance (TKÜ, § 100a StPO) and appears to be widely accepted by society. The basis for the implementation of TKÜ is the obligation of telecommunications providers to provide interception interfaces. However, the technical implementation of telecommunications has changed significantly as a result of the Internet. Messenger services and Voice over IP telephony are increasingly competing with traditional telephone services. The use of strong end-to-end encryption made possible by this technology is increasingly posing problems for law enforcement agencies, as only cryptographically encrypted content is accessible via the interception interfaces provided to date. Against the backdrop of current discussions on socalled ``chat control'' and its limited social acceptance, this article addresses the question of whether and, if so, how the cooperation obligations of the technical actors involved can be sensibly regulated in the case of encrypted communication.

Problem

• Regulating access to encrypted communication for law enforcement
• Balancing telecommunications secrecy with surveillance requirements
• Defining cooperation obligations for providers of encrypted services

Innovation

• Regulating access to encrypted communication legally
• Analyzing interception interfaces for messenger services
• Establishing cooperation obligations for encrypted platforms