German High Court Defines New “IT Basic Law” Curbing Online Searches

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By Monika Ermert for Intellectual Property Watch
MUNICH – Germany’s Federal Constitutional Court this week decided that infiltration of personal computers, laptops or other information technology devices of possible suspects by law enforcement violates the basic right of “confidentiality and integrity of IT systems.”

In defining confidentiality and integrity of IT systems, the German judges created a new basic right derived from existing personal rights granted by the German Basic Constitutional Law.

The ruling came after the State of Northrhine-Westphalia amended state law on domestic intelligence to allow the secret online searches. Several lawyers, including the former Interior Minister Gerhart Baum (Free Democratic Party), and a journalist, Bettina Winsemann, had filed an appeal with the Constitutional Court against the new law that the judges now have decided is unconstitutional and void.

Yet the ruling of the highest German judges in fact mainly targets a planned federal law that will allow online searches for the German Federal Police in their fight against terrorism. The judges at the lengthy October oral hearing attended by as many IT as legal experts announced they were prepared for a leading decision on the issue of secret online searches and infiltration of citizens’ computers by state agencies.

“Technological developments in recent years made IT systems ubiquitous,” presiding judge Hans-Jürgen Papier said upon reading the Court’s decision on Wednesday. “Their use is of central importance for many citizens.”

“Therefore,” he said, “the importance of personal computers for self-development of citizens has grown considerably.” Data stored on hard disks or only cached temporarily – sometimes even unnoticed by the users – make the PC or laptop into an enormously rich resource.

“The tapping of a set of data of such completeness clearly risks that the data collected allowed conclusions on the personality of the respective citizen including behaviour and communication profile,” reads the 40-page ruling.

The basic rights granting privacy of telecommunications and privacy of the home did not address the possible new risks for the citizen-user, the judges decided. Privacy of telecommunications does not, for example, cover data stored on the hard disk – like a personal diary – and privacy of the home does not protect the user writing on his laptop in a coffee shop around the corner. A new basic IT right was necessary to close the loopholes in the protection of citizens, they said.

Yet despite the new basic law, Interior Minister Wolfgang Schäuble, who had been pushing for making online searches part of the law on the federal police, showed full confidence after the ruling. That is because judges also said that in strictly limited cases exemptions for the new basic right were possible – as they are for other basic rights.

“The ruling does not create barriers, but it creates clarity. And I am grateful for that clarity,” Schäuble said. He announced the quick presentation of a draft of the new law including the possibility for online searches in exceptional cases.

How high legal barriers for searches are now remains a matter of intense public debate in Germany. The judges first asked that the searches be limited to cases in which danger for life or the state as such is imminent or at least obvious. In any case a judge has to decide on the lawfulness and what is more, a judge possibly has to be involved to check on the material collected by the agents and police forces. Data not related to the case – even if related to other criminal acts, for example tax evasion – should not be obtained by the law enforcement agencies. As far as core privacy data that is protected by the Constitution is concerned, even data relevant to the case has to be deleted.

While secret phone taps have to be cut when possible terrorists talk about religion for example, according to an earlier judgement of the German Constitutional Court, cutting out core private data during an online search is not that easy. To the degree it is technically impossible, said the judges, the data therefore has to be deleted at the earliest possible moment.

Some German politicians are now proposing to hand over the collected data to judges before agents get to see them. Yet judges warned against expecting them to do the possibly extensive work that this would involve. State Attorney Christoph Frank, chair of the nation’s largest association of judges and attorneys of state, told the German media that the burden for overworked courts was too high and the plan illusory.

The Free Democratic Party, meanwhile, has asked for another hearing on the issue in order to clarify constitutional aspects. The Federal Commissioner for Data Protection and Freedom of Information, Peter Schaar, who welcomed the judgement as a milestone, urged a re-evaluation of the new law on data retention and legislation on the confiscation of PCs or laptops.

The data retention legislation has been challenged by 34,000 German citizens in the largest constitutional complaint ever filed in Germany. Privacy advocates in Germany fighting back against the flurry of new legislation in the fight against terror hope for another landmark ruling in the coming months.

Monika Ermert may be reached at

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