German court outlaws wiretapping without court order

By EDRi · August 10, 2005

The German Constitutional Court has outlawed a special security law of the state of Niedersachsen that allowed police to wiretap telephone connections without any specific suspicion, as well as collect traffic data, GSM location data, e-mail and SMS traffic. The ruling also affects the state of Thuringen, with a similar law, and Bavaria, currently developing a similar law.

The Court outlines that under the German constitution interception is only possible under strict conditions. The security law is too vague (not specific enough and not enough standardised) and doesn’t guarantee that completely private conversations are excluded or immediately deleted from the record. Preventive interception can only be lawful according to the Court if there are specific indications pointing to the preparation or planning of a criminal act.

Heise reports that the president of the Court said the ruling was in the heart of the tension between freedom and safety. According to him, there is no freedom without safety, “but security laws that allow for state interventions (in the privacy of citizens), limit the freedom and in extreme cases, may rather make citizens feel insecure.”

Heise also reports about a heated debate that ensued in the week after the ruling amongst data protection authorities, liberal and left wing politicians. The former liberal minister of Justice Sabine Leutheusser-Schnarrenberger called for a drastic rethinking of politics and police. According to her, with over 30.000 telephone interceptions in 2004, the practice had grown to an extreme. The German C’T magazine interviewed Peter Schaar, the chair of the article 29 Working Party of data protection authorities. Schaar sees a clear consequence of this verdict for data retention: even the EU Commission compromise of storing internet traffic data for ‘only’ half a year, especially when flatrate services are involved, “is in considerable breach of the Constitution.” Schaar recommends the Cybercrime model of a ‘quick freeze’ of data of specific suspects as a much more proportional alternative.

Präventive Telefonüberwachung verstößt gegen Grundgesetz (27.07.2005)

Constitutional Court ruling, Az.: 1 BvR 668/04 (27.07.2005)

Interview with Peter Schaar, chairman of the EU data protection authorities (28.07.2005)