Unraveling the constitutionality of monitoring state troopers.
In a significant ruling, Germany's Federal Constitutional Court has established clear constitutional limits for the use of state trojans and source telecommunications surveillance (Quellen-TKÜ) in criminal investigations. The decision, which followed a constitutional complaint initiated by the Digitalcourage association in 2018, aims to balance law enforcement needs with strong fundamental rights protections and proportionality requirements.
The current constitutional status of source telecommunications surveillance in Germany permits its use only for investigations of particularly serious crimes. This means that the method, which involves recording communication before or after encryption, directly accessing the end device using special software, is off-limits for lesser offenses.
The Court's ruling emphasizes the serious impact on fundamental rights, given the invasive nature of reading encrypted communications and searching devices covertly. It has declared the use of source-TKÜ or online search unconstitutional and void in cases where a prison sentence of up to three years is threatened.
Lawful Interception at the Source (Quellen-TKÜ) targets communications directly on the suspect's device before encryption, rather than traditional network interception methods. The Court has also criticized the state's practice of maintaining or purchasing IT vulnerabilities to enable surveillance, warning of the risks to overall digital security.
The measure must be limited to the pursuit of particularly serious crimes. In 2023, there were a total of 104 judicial orders for source-TKÜ, of which 62 were actually carried out. Online searches, which go a step further, allowing the collection of all data from a suspect's device using technical means, were ordered a total of 26 times and carried out six times.
The Karlsruhe judges gave the green light for the use of source-TKÜ in the police law of North Rhine-Westphalia, limited to particularly serious - terrorist - crimes. However, they also decided that the authority of investigators to secretly search computers or smartphones of suspects is partly not compatible with the Basic Law.
The decision from the Federal Constitutional Court sets new limits for the secret surveillance used to clarify criminal offenses. It upholds the general legality of digital surveillance tools under strict conditions and safeguards against abuse for serious criminal investigations. However, it also declares some provisions allowing broader online searches of entire IT systems as constitutionally deficient, pending legislative reform to explicitly protect fundamental rights.
The Code of Criminal Procedure (StPO) is the law that regulates criminal proceedings and the powers of investigative authorities in Germany. The 2017 reform of the Code included provisions for state trojans and online searches that sparked criticism. Despite these limits, the Court's decision maintains that the powers of the criminal prosecution authorities in their current form are too far-reaching.
The decision from the Federal Constitutional Court is a significant step towards ensuring that digital rights are protected while allowing for effective criminal investigations. It requires legislative updates and strict oversight to align with the Basic Law and maintain a balance between law enforcement needs and fundamental rights protections.
- The decision from the Federal Constitutional Court highlights the need for legislative reform in the Code of Criminal Procedure (StPO) to address constitutionally deficient provisions regarding online searches, ensuring a balance between effective criminal investigations and the protection of fundamental digital rights.
- The ruling by Germany's Federal Constitutional Court establishes that Lawful Interception at the Source (Quellen-TKÜ) can only be used for particularly serious crimes such as terrorism, underscoring the importance of education about the implications of technology on politics, general-news, and individuals' privacy rights.
