Online police searches found illegal in Germany

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

The German Federal Supreme Court (BGH) in Karlsruhe ruled, on 5 February,
that, according to the German Code of Criminal Procedure (StPO), online
police snooping was illegal.

As the court argued, StPO had no provisions to allow the authorities to
perform online snooping, the code allowing only overt searches.

Magistrate Ulrich Hebenstreit had already ruled against house searches
arguing that such searches had to take place in the presence of the person
affected. He emphasized that the data stored on computers could often be
confidential and compared online spying measures to electronic
eavesdropping.

The Protection of the Constitution Act on the German federal state of North
Rhine-Westphalia has recently included a provision that allows online PC
searches against which a complaint of unconstitutionality is presently being
prepared.

Consequently, Federal Minister of the Interior Wolfgang Schäuble, is now
asking the legislators to create a legal basis for the criminal prosecutors
to perform online searches ,that he considers indispensable.

Jörg Crozier, President of the German Criminal Police Office, asked also for
new legislation to support these actions and stated “We have to be able to
keep up with new technologies when unscrupulous criminals hide on the
Internet, where they can plan their attacks and prepare their criminal
actions.”

At the same time, he wanted to assure the German citizens that they
shouldn’t worry about the Government monitoring them in a way that would
violate their rights. “These measures will not even affect 99.9 percent of
the population.”

Ziercke stated that the Internet was playing a major part in the war against
terrorism, child pornography, neo-Nazi propaganda and other types of crimes
but can also play an important role in committing those crimes.
“The Internet is the criminal platform of the future. In fact, it is the
criminal platform of today.”

On the other hand, Burkhard Hirsch, the former vice president of the lower
chamber of Germany’s Federal Parliament and a member of the opposition Free
Democratic Party (FDP), considers online search by the police of a PC
as “worse than a major eavesdropping operation.” He declared to the German
newsmagazine DerSpiegel that spying a computer through the Internet is
a “more brutal form of intrusion” than previous criminal investigation
methods.

Surreptitious online searches of PCs are illegal (6.02.2007)
http://www.heise.de/english/newsticker/news/84867

German criminology czar believes that online searches
are urgently needed (7.02.2007)
http://www.heise.de/english/newsticker/news/84908

Germany outlaws secret police snooping (6.02.2007)
http://www.out-law.com/page-7737

EDRI-gram: Proposal of computers online searching in Germany (20.12.2006)
http://www.edri.org/edrigram/number4.24/computer-online-searching