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Online PC Surveillance by the Government is Restricted by the Federal Constitutional Court in Germany in a Landmark Precedential Case

By Andis Kaulins

Fresh off the presses and with still little commentary elsewhere online.....

In a decision hailed by some as the most important court ruling in Germany in the last 20 years, and with clear ramifications in international law in terms of the creation of a "new right", the German Constitutional Court (Bundesverfassungsgericht in Karlsruhe, Germany) ruled today, Wednesday, 27 February 2008, that widescale surveillance of personal computers for anti-terror purposes violated the constitutional right to privacy and was prohibited by law, except in exceptional circumstances.

See
The court's press release concerning the decision (in German).
The court's decision (in German).
RSS feeds and an email service from the court are available.

The court held that extensive uncontrolled online PC surveillance was impermissible, but did permit computer surveillance by the government under certain exceptional circumstances where clear evidence of a concrete threat to a prominent object of legal protection exists. Such surveillance, however, can only be carried out via a court order, and no personal data can be collected or evaluated.

As written at heise online:

"Germany's Federal Constitutional Court has rejected provisions adopted by the State of North Rhine-Westphalia that allowed investigators to covertly search PCs online. In its ruling, the court creates a new right to confidentiality and integrity of personal data stored on IT systems; the ruling expands the current protection provided by the country's constitutional rights for telecommunications privacy and the personal right to control private information under the German constitution."

As written at Deutsche Welle:

"Intelligence agencies will only be allowed to collect data secretly from suspects' computer hard drives if there is evidence that "legally protected interests," like human lives or state property, are in danger, the Constitutional Court in Karlsruhe announced.

Law enforcement authorities must get permission from a judge before they secretly upload spyware to a suspect's computer via e-mail, the court said. Furthermore, personal data may not be collected or evaluated in an investigation."

The Age (Australia) writes:

"The Karlsruhe-based Federal Constitutional Court said in a precedent-setting ruling that data stored or exchanged on a personal computer is effectively covered under principles of the constitution that enshrine the right to personal privacy.

"Collecting such data directly encroaches on a citizen's rights, given that fear of being observed ... can prevent unselfconscious personal communication," presiding judge Hans-Juergen Papier said in his ruling."

Xinhua (China) writes:

"Germany's highest court ruled Wednesday that government surveillance of personal computers in the name of pursuing terrorists would violate the constitutional right to privacy."

Business Week writes:

"Interior Minister Wolfgang Schaeuble welcomed the ruling, saying his ministry would refer to the clause allowing surveillance in specific cases in preparing new legislation to guide Germany's national intelligence services."

In other words, blanket surveillance is not permitted but specific surveillance IS permitted.
This is the right decision and well done by the Federal Constitutional Court of Germany in setting an important legal precedent regarding online PC surveillance.

Full post as published by LawPundit on February 27, 2008 (boomark / email).