Germany: New Basic Right to Privacy of Computer Systems

The German Constitutional Court on 27 February 2008 published a landmark ruling about the constitutionality of secret online searches of computers by government agencies. The decision constitutes a new "basic right to the confidentiality and integrity of information-technological systems" as derived from the German Constitution.

The journalist and privacy activist Bettina Winsemann, the politician Fabian Brettel (Left Party), the lawyer and former federal minister for the interior Gerhart Baum (Liberal Party), and the lawyers Julius Reiter and Peter Schantz had challenged the constitutionality of a December 2006 amendmend to the law about the domestic intelligence service of the federal state of North-Rhine Westphalia. The amendmend had introduced a right for the intelligence service to "covertly observe and otherwise reconnoitre the Internet, especially the covert participation in its communication devices and the search for these, as well as the clandestine access to information-technological systems among others by technical means" (paragraph 5, number 11). Parts of the challenges also addressed other amendmends which are not covered here.

The decision of today is widely considered a landmark ruling, because it constitutes a new "basic right to the confidentiality and integrity of information-technological systems" as part of the general personality rights in the German constitution. The reasoning goes:

"From the relevance of the use of information-technological systems for the expression of personality (Persönlichkeitsentfaltung) and from the dangers for personality that are connected to this use follows a need for protection that is significant for basic rights. The individual is depending upon the state respecting the justifiable expectations for the integrity and confidentiality of such systems with a view to the unrestricted expression of personality." (margin number 181)

The decision complements earlier landmark privacy rulings by the Constitutional Court that had introduced the "right to informational self-determination" (1983) and the right to the "absolute protection of the core area of the private conduct of life" (2004).

Information-technical systems that are protected under the new basic right are all systems that

"alone or in their technical interconnectedness can contain personal data of the affected person in a scope and multiplicity such that access to the system makes it possible to get insight into relevant parts of the conduct of life of a person or even gather a meaningful picture of the personality." (margin number 203)

This includes laptops, PDAs and mobile phones.

The decision also gives very strict exceptions for breaking this basic right. Only if there are "factual indications for a concrete danger" in a specific case for the life, body and freedom of persons or for the foundations of the state or the existence of humans, government agencies may use these measures after approval by a judge. They do not, however, need a sufficient probability that the danger will materialize in the near future. Online searches can therefore not be used for normal criminal investigations or general intelligence work.

If these rare conditions are met, secret online searches may only be used if there are steps taken to protect the core area of the private conduct of life, which includes communication and information about inner feelings or deep relationships. These protections have to include technical measures that aim at avoiding the collection of data from this core area. The Court goes on:

"If there are concrete indications in the specific case that a certain measure for gathering data will touch the core area of the conduct of private life, it has to remain principally undone." (margin number 281)

If data from this core area is accidentially collected, it must be deleted immediately and can not be used or forwarded in any case.

Reactions to the decision were mixed. The opposition parties and many civil liberties groups acclaimed the birth of the new basic right with constitutional status and the high hurdles for any future use of governmental spyware. Others, among them many bloggers, were sceptical about the exception clauses and how far they can be stretched by the government in future legislation and practice.

Secret online searches of personal hard drives and other storage media had been subject to intense political debate in Germany over the last year after the federal government had to admit it had already tried online searches for criminal investigations without legal grounds and was stopped by the Federal High Court. The federal government as well as several states plan to enact similar possibilities for their intelligence and law enforcement agencies, while the opposition parties and parts of the ruling Social Democrats are strictly against it. Privacy activists have called the plan "Federal Trojan" ("Bundestrojaner"). A real-life sized model of a trojan horse in Germany's national colors which was built by activists from the Chaos Computer Club (CCC) and used at several protest marches will soon be exhibited in the Museum of German History in Bonn.

The "Federal Trojan" in front of the Constitutional Court during its hearing on the case on 10 October 2007. Picture by Leralle, licensed under Creative Commons BY-NC-SA 2.0 Germany.

Federal Minister for the Interior Wolfgang Schäuble (Christian Democrats) said he expects that the coalition will soon agree on a bill to give the Federal Criminal Agency (BKA) the legal possibility to use online searches in the fight against international terrorism. Privacy advocates pointed out that Schäuble now at least has to stick to a very narrow definition of fighting terrorist dangers and can not use this as a disguise for introducing general and far-reaching surveillance of personal computer systems.

Links:

• Constitutional Court Press Release (in German, 27.02.2008)
  
• Constitutional Court Decision (BVerfG, 1 BvR 370/07) (in German, 27.02.2008)
  
• Video from the announcing of the decision
  
• Comprehensive press and background coverage (in German)
• Deutsche Welle: Germany's Highest Court Restricts Internet Surveillance (27.02.2008)
  

This article also appeared in the "EDRI-gram" newsletter by European Digital Rights (EDRi), number 6.4, 27 February 2008.