German Constitutional Court ruling on seizure of emails
On 2 March 2006, the German Constitutional Court has ruled that emails and
mobile phone text messages that have already been transmitted and are
still stored on the recipient’s device do not fall under the special
constitutional protections for telecommunication privacy. The decision
was made after a German judge had her computer seized by law
enforcement agencies who suspected her of having given internal
information to journalists (which could not be confirmed later). The
constitutional court decided that emails and similar messages, but also
called numbers and numbers of received calls that are still in the address
book of a phone, can be treated like files and other documents that do not
fall under the constitutional protection for telecommunications. This
means that law enforcement agencies can seize these data even in simple
crime cases, whereas telecommunications interception is only possible for
the investigations of severe crimes and after approval by a judge.
The constitutional court, in the same decision, also limited the amount of
data and electronic information that can be seized. The suspect, according
to the decision, is still protected under the right to informational
self-determination, which the supreme court had developed from the “human
dignity”-clause in the German constitution in its famous 1983 census
ruling. This means that the police has to take into account the principle
of proportionality. They can no longer take away the whole computer or
other equipment and sift through all the data stored on it – a common
practice so far. Under the new decision, they now have to search the
suspect’s equipment on location and are only allowed to copy or print out
the data specifically relevant to the actual case.
The reactions to the decision were mixed. While some called it bad for the
privacy of communications, others applauded the strengthening of the
proportionality principle. This might have an impact on German legal
discussions about mandatory data retention. German privacy groups are
currently getting organized to prepare a constitutional challenge, and
they will certainly point out that the retention of all traffic data of
every single citizen is way beyond proportionality. An online-petition
against data retention to the German parliament has already reached more
than 12 000 signatures, a second one with different arguments has been
submitted recently.
Constitutional Court Decision (only in German, 2.03.2006)
http://www.bverfg.de/entscheidungen/rs20060302_2bvr209904.html
Heise News about the decision (only in German, 2.03.2006)
http://www.heise.de/newsticker/meldung/70267
Tagesschau.de – The implications for data retention (only in German,
2.03.2006)
http://www.tagesschau.de/aktuell/meldungen/0,1185,OID5290136_REF1_NAV_BAB,00.html
Online Petition to the German Parliamant against Data Retention (only in
German)
http://itc.napier.ac.uk/e-Petition/bundestag/view_petition.asp?PetitionID=60
(Contribution by Ralf Bendrath, EDRi member Netzwerk Neue Medien – Germany)