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State Online Snooping into your PC is Illegal

The Federal Constitutional Court (re 1 BvR 370/07; 1 BvR 595/07) declared the heavily discussed Act on Protection of Constitution of the State North Rhine-Westphalia (APC) null and void on February 27, 2008. Read a summary on the reasons why the court made this decision. You will be given enough knowledge and understanding that you can comfortably discuss this topic with friends and colleagues.


For those in hurry read only this paragraph: The highest court in Germany generally permits online investigations. However, secret infiltrations are only permitted under very strict conditions. In view of the severe invasion of one’s constitutionally guaranteed privacy, the constitution can only permit the inspection of one’s computer when factual clues show the existence of a concrete danger for a more important value or object under legal protection Whensuch an important valueseems endangered, then a judge must order such spying. APC does not meet these strict regulations and therefore must lose its validity. Secret investigation of an agency on the Internet, for the protection of the constitution, interferes with secrecy of telecommunication when it surveys password protected communication channels without prior permission or against a refusal of a participant. Such severe infringement of a constitutional right generally requires a statutory provision defining a qualified threshold when such breach of privacy is to be considered as justified.

A journalist member of the party “DIE LINKE (The Lefts)” and three lawyers initiated this constitutional complaint. Their argument that online snooping invades personal privacy (art. 2 I GG), existing in the confidentiality and integrity of IT-systems was affirmed because no limitation in constitutional rights may be stipulated without any “checks and balances”.

§5 II no. 11 1 alt. 2 APC reads:

Secretly monitoring and otherwise obtaining private information from the Internet includes covert participation in its communication means or searching for them, as well as gaining secret access to IT systems.

For many people it is vitally important to use IT systems to develop their personality. But simultaneously, there are new imperilments for self-development. To monitor the use of such systems and an evaluation of saved data on hard disks or DVDs enable far reaching conclusions on the user’s personality leading to the making of a profile. Therefore, a significant constitutional protection is needed. The guarantees in art. 10 GG (secrecy of telecommunication) and art. 13 GG (inviolateness of one’s apartment) as well as additional case law of the BVerG do not sufficiently take the modern dangers into account. The scope of protection covering the privacy of to telecommunication includes the communication media (e.g. eMail, chat forums).

When governmental agencies technically infiltrate a complex IT system in order to monitor telecommunication, then the last hurdle to monitor the whole system has been taken. The deriving danger from this infiltration goes far beyond a simple monitoring of communication taking place. Particularly, data on a hard disk could be used in ways that are not related to communication. The state has no right to investigate private matters without due cause.

The guarantee of inviolateness of one’s apartment (Garantie der Unverletzlichkeit der Wohnung) has a gap in its protection scope when it comes to telecommunication. This guarantee does not promise a protection against infiltration independent of physical access – even when the data is stored in your apartment. Your apartment may not be entered without your permission or statutory justification. However when a governmental Trojan horse has been successfully installed into your system, e.g. via an eMail, the inviolateness of your apartment has not been touched. Nobody entered your dwelling.

Interferences in the constitutional right of secrecy and integrity of telecommunication may be justified for preventive as well as prosecutive reasons. However, they must be justified by order of a constitutional statute. ACP did not meet this requirement. This nullified act also infringed upon the principle of proportionality (Verhältnismäßigkeitsgrundsatz = Übermaßverbot). The doctrine postulates that every provision of a statute that infringes or touches a person’s rights must do so with the least possible effect – the legislator is not to overdo it. The collection of private data via a complex telecommunication system gives public agencies access to information sources that surpasses by amount and multiplicity traditional resources. Considering the seriousness of the infringement, a secret infiltration to monitor a whole system and readout its storage media can only be accepted when there exist real threats of a concrete danger for an extraordinary important, legally protected object. Such extraordinary reasons are the protection of body, life, and freedom of persons. The endangerment of the public, i.e. the fundamental liberties and existence of the country or its inhabitants, are also extraordinary reasons. However, secret infiltration can be permitted when the danger cannot yet be perceived with sufficient probability in the near future and if certain facts point to an individual danger for an extraordinary important object. In other words, the government may snoop when it can show the judge some concrete threats that might lead to an endangerment. As a final requirement, statutory precautions must be enacted to protect the person affected. In other words, a judicial order is required.

Federal Minister of the Interior (at this time), Wolfgang Schäuble, continues to attack this line of reasoning as it is his personal desire to have the legal possibility to secretly snoop in private computers. His ministry has already begun to draft a new law, which he plans to introduce later this year. So stay tuned and be informed if big brother may have access to your computer via the Internet.



Published on the old CMS: 2008/3/26
Read on the old CMS till November 2008: 2026 reads