Underwhat circumstances does monitoring state troopers violate constitutional rights?
German Court Limits Use of State Trojans in Criminal Investigations
In a landmark ruling, the Federal Constitutional Court of Germany has set new limits on the use of state trojans (spyware) by police for source telecommunications surveillance. The court's decision, which came in response to a constitutional complaint initiated by the association Digitalcourage in 2018, aims to protect fundamental rights, including privacy and IT security.
The ruling states that the use of state trojans is only permissible for investigating particularly serious crimes punishable by more than three years in prison. Use of such spyware for crimes with a maximum sentence of three years or less is no longer allowed, as it constitutes an infringement on these fundamental rights.
The court emphasized the importance of proportionality, stating that covert surveillance must be strictly confined to serious offenses with significant penalties. The ruling marks a significant tightening compared to previous laws enabling broader use since 2017.
The court also highlighted concerns about the legal compatibility of secretly searching stored data on devices and criticized collaboration with private companies that supply spyware, such as NSO Group. The judges suggested that authorities should end such cooperation due to serious risks to IT security and fundamental rights.
The Police Act of North Rhine-Westphalia permits the use of source-TKÜ for preventive tasks - i.e., those for the prevention of dangers to public safety and order. The use of source-TKÜ or online search was measured against certain standards, including the suspicion of a serious or particularly serious crime, the crime weighing heavily in the individual case, and the investigations being significantly impeded or hopeless by other means.
The reform of the StPO in summer 2017, named "Act for the more effective and practice-oriented design of the criminal procedure", was controversial due to its provisions on source telecommunications surveillance (source-TKÜ) and online searches using state trojans.
Online searches are much less frequent compared to source-TKÜ. In 2023, orders for source-TKÜ or online search were made a total of 104 times, of which 62 were carried out. Online searches were ordered a total of 26 times and carried out six times in 2023, mostly suspected of forming a criminal organization.
Digitalcourage had also filed a complaint against the use of state trojans in the police law of the state of North Rhine-Westphalia, which was rejected in Karlsruhe. State trojans refer to spy software installed on a suspect's device without their knowledge, allowing investigators to access encrypted messages or search all data on the device. Source telecommunications surveillance involves recording communication before it is encrypted or after it has been decrypted using special software.
The Federal Constitutional Court has declared some of the legal provisions regarding the powers of the criminal prosecution authorities as excessive and has set new limits for secret surveillance to clarify criminal offenses. The court has partly declared the authority to secretly search computers or smartphones of suspects as unconstitutional, retroactively, for crimes punishable by up to three years in prison. However, the Karlsruhe judges have given the green light for the use of source-TKÜ in the Police Act of North Rhine-Westphalia, limiting its use to particularly serious - terrorist - crimes.
In conclusion, the ruling from the Federal Constitutional Court of Germany sets new limits on the use of state trojans and source telecommunications surveillance by German authorities, emphasizing the importance of proportionality and protection of fundamental rights. The court's decision aims to strike a balance between the need for effective criminal investigations and the protection of individual privacy and IT security.
- The Federal Constitutional Court of Germany's decision on state trojans in North Rhine-Westphalia's Police Act now restricts the use of these tools to particularly serious crimes, such as terrorism.
- The court's ruling in the policy-and-legislation of Germany has outlined that the general-news of secret surveillance for crimes with a maximum sentence of three years or less is no longer permissible, to prioritize privacy and IT security.
