February 29, 2008 7:22AM NewsFactor.comWhile the ruling directly addressed a state law that had widely permitted the authorities to monitor criminal suspects’ personal computer use, it also set out the ground rules for a hotly disputed federal law governing secret services’ ability to use virus-like software to monitor terrorism suspects’ online activity.
Government surveillance of personal computers would violate the individual right to privacy, Germany’s highest court said Wednesday, in a ruling that German investigators say will restrict their ability to pursue terrorists.
The Federal Constitutional Court in Karlsruhe said in a precedent-setting decision that data stored or exchanged on a personal computer were effectively covered under principles of the Constitution that enshrine the right to personal privacy.
“Collecting such data directly encroaches on a citizen’s rights, given that fear of being observed” could prevent “unselfconscious personal communication,” the presiding judge, Hans-Jurgen Papier, said in his ruling.
While the ruling directly addressed a state law that had widely permitted the authorities to monitor criminal suspects’ personal computer use, it also set out the ground rules for a hotly disputed federal law governing secret services’ ability to use virus-like software to monitor terrorism suspects’ online activity.
“Given the gravity of the intrusion,” Papier said, “the secret infiltration of an IT system in such a way that use of the system and its data can be searched can only be constitutionally allowed if clear evidence of a concrete threat to a prominent object of legal protection exists.”
The authorities would be allowed to spy on suspects’ computers using virus software in exceptional cases, according to the ruling.
But any such action must have the approval of a judge.
Interior Minister Wolfgang Schuble welcomed the ruling, saying his ministry would refer to the clause allowing surveillance in specific cases in preparing new legislation to guide Germany’s national intelligence services. A previous proposal to use the technology to fight terrorism and investigate a range of crimes met with sharp criticism from civil rights groups and opposition politicians.
“We expect that with a decision from the court we’ll get a wider acceptance of the law than when it was just the interior minister saying the same thing,” Schuble said.
“I hope that the insecurity felt by young people will be tempered by this decision,” he said, adding that it showed that the government “protects the people’s rights.”
Justice Minister Brigitte Zypries also welcomed the decision, saying that it “strengthened the trust of citizens and the economic system in the integrity and confidentiality of computer systems.”
Leading Social Democrats, who share power with the Christian Democrats in an uneasy coalition and have opposed online searches in the past, welcomed the tight limits the court set and said they expected ministers to start drawing up a national law soon.
“The balance between freedom and
security remains protected,” Kurt Beck, chairman of the Social Democrats, said in a statement.
“The exaggerated ideas of security and political hard-liners were rebuffed.”
The decision was lauded by the information-technology industry as well. Bernhard Rohleder, head of the Bitkom IT trade association, said the court’s ruling reflected his group’s position.
“Now we have a basis for future debates on security and information technology,” Rohleder said.
Several European countries have struggled since 2001 to increase police and intelligence agency powers to help prevent terrorist attacks and at the same time to protect civil rights.
German security has been in the spotlight since the authorities arrested three men last year who they said were planning to carry out bomb attacks against U.S. installations in Germany.
The media have reported that the German police availed themselves of U.S. intelligence services to monitor the suspects on the Internet because they had no power to do so themselves.
The controversial technique involves sending out e-mails that plant so-called Trojan software on a suspect’s computer and enable authorities to scan the hard drive.
The GdP police union welcomed the ruling and said it had no problem with having strict conditions, but also warned that further measures might be needed in the future to fight terrorists.
“Even after the ruling,” said the GdP’s chairman, Konrad Freiberg, “answers have to be found to the fact that more and more crime is planned, agreed, prepared or carried out on the Internet.”
September 11th, 2008 by 
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