Definition and general meaning of espionage
Espionage refers to the deliberate collection of secret or confidential information without the consent of the party or parties concerned, usually to the detriment of a state, company, or organization. Originally used primarily in the context of state activity between nations (intelligence services), today the term covers a wide range of scenarios, including economic, political, and military espionage, as well as the spying on business or trade secrets by private individuals and organizations.
A central element of espionage is the acquisition of information through deception, recruitment of informants, technical surveillance, digital attacks (cyber espionage), or covert investigative methods. Espionage is criminalized in most countries, especially when it is directed against national security interests.
Legal basis of espionage under German law
Criminal relevance
Under German law, espionage is addressed in both the Criminal Code (StGB) and special statutory provisions, depending on its nature and targets. The legislator distinguishes between different forms of espionage and criminalizes them under various statutory offenses.
Offenses against state security (§§ 94 et seq. StGB)
Serious forms of espionage are directed against essential security interests of the state. The central statutory offenses are:
- Treason (§ 94 StGB): Disclosing state secrets to a foreign power or its communication is punishable. This includes security-relevant information whose disclosure would endanger the Federal Republic of Germany.
- Intelligence agency activities (§ 99 StGB): Activities for a foreign intelligence service are punishable, regardless of whether a state secret has been betrayed. This includes obtaining, passing on, or agreeing to transmit information.
Industrial espionage and commercial espionage
- Disclosure of trade and business secrets (§§ 17, 18 UWG): The Act Against Unfair Competition (UWG) protects companies’ information from unauthorized disclosure and spying.
- Data betrayal (§ 202a StGB): Spying on and intercepting data, in particular by circumventing access security, is punishable.
Distinction from related criminal offenses
Not every unauthorized acquisition of information constitutes espionage in the criminal-law sense. Distinctions must be made between, among other things:
- Breach of official secrets by public officials (§ 353b StGB): Covers the disclosure of official or service secrets by government employees.
- Spying on data (§ 202a StGB): Concerns mainly cyberattacks, without a necessary connection to state or business secrets.
International law provisions and international regulations
Espionage is addressed in international law in a differentiated manner. Classic inter-state espionage activities are generally not specifically criminalized, but upon discovery, they are regularly grounds for diplomatic responses and can form the basis for expulsions or sanctions. International agreements, such as the Wassenaar Arrangement, contain provisions to protect against the improper transfer of sensitive technologies and information.
Special forms of espionage
Military espionage
Military espionage targets the acquisition of strategic or operational information about a military force or its infrastructure. It is subject to strict criminal and disciplinary rules, particularly for soldiers and other individuals with access to militarily important information.
Industrial espionage
Industrial espionage involves the investigation of company and trade secrets, especially by foreign intelligence services or competing companies. Here, §§ 17 and 18 UWG are particularly relevant, criminalizing the unauthorized acquisition and transfer of such information, even when there is no direct state connection.
Political espionage
Political espionage covers the gathering of information on political decisions, negotiations, and strategies of a state in favor of a third party. This particularly concerns diplomatic missions and is complicated and sanctioned by international regulations regarding the immunity of diplomats.
Cyber espionage
The surveillance of electronic data and systems through malware, phishing, or direct access is one of the modern forms of espionage. It is not only punishable under German law but is also subject to international cybersecurity agreements and cooperation.
Legal consequences and sanctions
Criminal sanctions
Depending on the severity and objective, severe penalties up to lengthy prison sentences may occur. Treason can be punished with imprisonment of at least one year, and in particularly serious cases, with life imprisonment (§ 94 StGB). For intelligence activities (§ 99 StGB), the law provides for up to five years’ imprisonment.
Industrial and commercial espionage (§ 17 UWG) is punishable by imprisonment for up to three years or a monetary fine. Particularly grave actions can result in increased sentencing ranges.
Civil law claims
Affected companies or individuals may assert claims for injunctive relief and damages against the party conducting surveillance if there is a violation of competition law or data protection law.
Professional and disciplinary consequences
For public officials and employees of public institutions, additional disciplinary measures may be imposed, up to removal from service.
Differences and similarities in international law
Comparison with other legal systems
Many legal systems, including those of the United States, United Kingdom, or France, have comparable criminal offenses aimed at protecting national security and combating espionage. Differences exist in the severity of punishment, the definition of state secrets, and the treatment of digital espionage.
European regulations
The European Union does not have independent provisions for the criminal prosecution of espionage but does harmonize the protection of trade secrets through Directive (EU) 2016/943.
Prevention and state protection against espionage
States have various institutions and technical measures to protect against espionage, including domestic and foreign intelligence services (such as the Federal Office for the Protection of the Constitution, Federal Intelligence Service), as well as specialized IT security authorities that advise and sensitize companies and government bodies.
Significance and societal assessment
Espionage is often seen in the area of tension between state security interests, economic competitiveness, and the protection of individual rights. While state actors consider intelligence gathering necessary for national security, those affected often criticize it as an intrusion into fundamental rights and data protection. Legal evaluation is therefore always based on current threat situations and the need for protection of the state, economy, and society.
Summary: Legally, espionage comprises a wide range of criminal acts that are comprehensively regulated under German, European, and international law. Differentiated offenses and sanctions are decisive, serving to protect state and economic interests. Modern forms—especially digital espionage—present law and security authorities with new challenges, requiring continuous adaptation of the legal framework.
Frequently asked questions
Is espionage punishable in Germany and if so, under which law?
Espionage is clearly punishable in Germany and is primarily addressed under §§ 94 et seq. of the Criminal Code (StGB). In particular, § 94 StGB deals with treason, which criminalizes the disclosure of state secrets to a foreign power. In addition, § 96 StGB governs the spying out of state secrets, and § 99 StGB addresses the prohibited intelligence activity for a foreign power. Depending on the severity of the act, severe prison sentences may be imposed; in the case of treason, the minimum sentence is one year, and in particularly serious cases, even life imprisonment. Attempted acts are punishable in most cases. Other relevant laws include the Act for the Restriction of the Secrecy of Letters, Post, and Telecommunications (G10 Act), which regulates surveillance measures for counter-espionage. The legal situation thus provides a clear and far-reaching criminal liability for acts of espionage to the detriment of the Federal Republic of Germany.
What role does the sentence play in convictions for espionage?
The sentence related to espionage depends largely on the type of offense and its consequences. Under § 94 StGB, treason can be punished by imprisonment from one year up to life, depending on the severity of the act. A particularly serious case arises, for example, if the perpetrator brings about the danger of war. Even preparatory actions are criminally prosecutable; merely attempting to disclose information can already be punished. The sentence depends on the level of threat to national security, the scope of the information disclosed, and any possible subsequent damage. Additionally, mitigating or aggravating circumstances, such as confessions or ongoing activity for a foreign intelligence service, may be taken into account.
Are there cases where espionage activities are legal?
In principle, any espionage activity in favor of a foreign power is prohibited under German law. However, German legal provisions allow exceptions in the context of state activity—that is, for intelligence services such as the Federal Intelligence Service (BND), Federal Office for the Protection of the Constitution (BfV), or Military Counterintelligence Service (MAD), which operate covertly based on legal authorizations. International cooperation with allied services may also be permitted, provided it takes place within the framework of national and international law. There are no exceptions for private individuals or private companies; even ‘whistleblowing’ is only exempt from punishment under very narrow conditions—that is, when it is in the public interest and in accordance with applicable laws.
Is attempted espionage also punishable?
Yes, under German criminal law, even the attempt of espionage actions is generally punishable. This is set out in §§ 23, 30 StGB, which deal with attempted offenses and their preparation. Especially in cases of offenses against state security, including espionage, it is not required that actual damage has occurred or that information has been successfully transmitted. The mere act of preparation, initiating contact with a foreign power, or attempting to obtain confidential documents is sufficient for liability. This serves the prevention and protection of the internal and external security of the Federal Republic of Germany.
What special procedural rules apply in cases of espionage?
Espionage cases in Germany are regularly prosecuted by the Federal Public Prosecutor General at the Federal Court of Justice as the highest prosecuting authority. Investigations are usually led by the Federal Criminal Police Office (BKA) or the Federal Office for the Protection of the Constitution (BfV). Special procedural rules apply for keeping sensitive information secret; these include, for example, exclusion of the public during trials under § 172 GVG (Courts Constitution Act), handling of classified materials under the Classified Information Directive, and extended powers for surveillance and investigative measures. Defense may be restricted due to secrecy interests, and interpreters and translators may be specially obligated to secrecy in such cases.
Can companies or their senior staff also be prosecuted for espionage?
Yes, companies and their senior staff may also be held criminally responsible for espionage, especially if they pass secrets, technologies, or information to a foreign state. In Germany, the so-called corporate criminal law applies in a limited form: While legal entities themselves cannot be prosecuted, significant fines may be imposed under the Administrative Offenses Act (OWiG) if managers commit offenses for the benefit of the company or in connection with the company. Where involvement or instruction to commit espionage is proven, managing directors, board members, or other responsible persons can be held personally and criminally liable. In addition, employment consequences up to dismissal and claims for damages may ensue.
