Uncovering instances when monitoring state troopers breaches constitutional rights.
Federal Constitutional Court Limits Use of State Trojans in German Police Act
In a landmark decision, the Federal Constitutional Court in Karlsruhe has given the green light for the use of Source-TKÜ in the North Rhine-Westphalia Police Act, but with significant restrictions. The ruling comes in response to a constitutional complaint initiated by the Digitalcourage association in 2018.
The contested law in question is a provision in the German Code of Criminal Procedure (Strafprozessordnung, StPO) that authorizes the covert use of "state trojans" (source telecommunications surveillance or Quellen-TKÜ) by criminal investigators. This law was amended in 2017 to allow police to install surveillance software on suspects' computers or smartphones to read encrypted communications and conduct online searches.
The court ruled that the source telecommunications surveillance under this law is partially unconstitutional because it infringes fundamental rights protected by the German Basic Law (Grundgesetz). Specifically, the court declared this use null and void for offenses punishable by a maximum prison sentence of up to three years, effectively limiting its application to particularly serious crimes.
The court emphasized the severe intrusion into privacy and IT security, necessitating stricter proportionality limits. Moreover, the authority to conduct secret online searches of suspects' data was found to be partly incompatible with the Basic Law but allowed to remain temporarily until new regulations are enacted.
Source telecommunications surveillance (Source-TKÜ) involves recording communication before or after encryption using special software. State trojans refer to spy software installed on a suspect's device without their knowledge, allowing access to encrypted messages or all data on the device.
To maintain proportionality, the Source-TKÜ measure can only be used for the pursuit of particularly serious crimes. The use of Source-TKÜ or online search was measured against certain conditions, such as the suspicion of a serious or particularly serious crime and the significant impediment or hopelessness of the investigation by other means.
Orders for these measures had to be made by a judge in each case. In 2023, there were a total of 104 judicial orders for Source-TKÜ, of which 62 were actually carried out. Online searches are reportedly much less common, with 26 orders in 2023 and six carried out.
The Digitalcourage association criticized the installation of state trojans via security vulnerabilities in smartphones or computers. The court believes that the legislature can remove the constitutional concerns by considering the secrecy of correspondence enshrined in the Basic Law.
The Federal Constitutional Court has declared some legal provisions regarding the powers of criminal prosecution authorities as unconstitutional. The court has also set new limits for covert surveillance to clarify criminal offenses. The decision by the Federal Constitutional Court was published by the highest German court on Thursday.
This ruling restricts the state's use of spyware and source telecommunications surveillance primarily to serious criminal investigations with heavier penalties, reinforcing constitutional protections against excessive state surveillance. The law was reformed in summer 2017 by the Union and SPD grand coalition. The Federal Constitutional Court has ruled that the authority of investigators to secretly search computers or smartphones of suspects is partly not compatible with the Basic Law.
The Federal Constitutional Court's ruling on the use of state trojans in the German Police Act fundamentally affects policy-and-legislation regarding politics, such as the German Code of Criminal Procedure (StPO), as it has declared some provisions unconstitutional and set new limits for covert surveillance to clarify criminal offenses. The decision follows a constitutional complaint initiated by the Digitalcourage association in 2018, highlighting general-news discussions on privacy, IT security, and the appropriate use of state trojans in criminal investigations.
