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Page 66

German Constitutional Court restricts cyber spying by government authorities

The German Constitutional Court (Bundesverfassungsgericht) has held that government authorities may not remotely spy on suspected criminals and terrorists (cyber spying). Cyber Spying involves using software to extract information from a remotely situated target computer. The Court has held that such investigations violate a personal right to privacy and the government can use it only in exceptional cases. In this case, investigatory authorities in the State of North Rhine-Westphalia began using cyber spying to investigate criminal suspects pursuant to a local statute. A journalist, a member of a leftist political party, and three lawyers brought a constitutional complaint against the State law which allows such investigatory techniques. The Court held, in particular: that information technology is very important for the personal development of many citizens. The acquisition of information from such citizens' computer hard drives would even enable government authorities to create a personality profi le. Thus, the law should protect such information. The current constitutional protections of (1) telecommunications secrecy and (2) of the inviolability of the living space are not adequate to achieve this result. While telecommunications secrecy does protect e-mail correspondence B though the government may monitor it in appropriate cases B entering a suspect's computer enables the authorities to look into matters unrelated to any e-mail communications. In addition, the State Law at issue does not meet the constitutional requirements of proportionality. It allows high-intensity inference with fundamental rights, and would require procedural safeguards such as warrants to protect the aff ected individuals. The Court notes, however, that communications such as internet chats, where the suspect voluntarily discloses information to an undercover investigator, do not require any such safeguards.

citation: [German] Bundesverfassungsgericht, Urteil vom 27. Februar 2008, 1 BvR 370/07; 1 BvR...