Archive notice: This article was originally published on February 28, 2008. Links and embedded videos are preserved as part of the historical record.
The Federal Constitutional Court (BVerfG) http://www.bundesverfassungsgericht.de declared North Rhine-Westphalia’s provisions on online searches null and void today, Wednesday. The law violated the Basic Law, the judges in Karlsruhe ruled. The use of state snooping software on private computers is therefore halted for the time being. The provision governing secret access to information technology systems “violates the general right of personality in its specific form as a fundamental right to a guarantee of the confidentiality and integrity of information technology systems”, the BVerfG states in its reasoning.
The provisions in NRW constitute a serious intrusion into privacy and are therefore impermissible. Similar to interference with the secrecy of telecommunications, secret online access to private computers is only possible under strict conditions. Secret spying is permissible only “if there are factual indications of a concrete danger to a legal interest of overriding importance. Furthermore, the intrusion must in principle be subject to a judicial order.” This means that suspects’ computers may only be examined using spyware if there is an immediate danger to human life or the continued existence of the state.
As expected, critics of online searches welcome the judgment. “Politicians must not now return to business as usual and start looking tomorrow for clever ways to circumvent the verdict from Karlsruhe. Respect for the highest court alone demands this, but even more so does a look at the risks of this rightly highly controversial investigative method,” comments Michael Rotert, Chairman of the Association of the German Internet Industry (eco) http://www.eco.de on the court’s decision. At stake, not least, is Internet users’ trust in using the Internet and new media, and thus also acceptance of e-business, e-health and e-government applications.
From a technical perspective, an online search is nothing other than successful hacking. The state uses existing security vulnerabilities in suspects’ programs to infiltrate snooping software. “But it must also be borne in mind that an investigative method of this kind has to be carefully prepared,” explains Joachim Jakobs, spokesperson for the Free Software Foundation Europe http://www.fsfeurope.org and the Privatsphäre.org initiative http://www.privatsphaere.org, in an interview with pressetext. There is no master key for this, only custom-made versions of the so-called federal Trojan that have to be tailored to the particular device and operating system as well as the protective measures in use. “People who really have something to hide will not let themselves be caught by a Trojan,” Jakobs says. These intended methods are merely tools for the surveillance state.
