German constitutional court creates new fundamental right to digital privacy

April 21st, 2008

February 27, 2008
Today, Germany’s Federal Constitutional Court, the country’s highest court, flatly rejected North Rhine-Westphalia’s Constitutional Protection Act, which is designed to permit the so-called online search of computers and other IT systems.

The Karlsruhe judges made it clear with their decision that the society has a legitimate interest in the confidentiality and integrity of the IT systems it increasingly depends on and that freedom of thought also exists if ideas are stored on to a computer. The Chaos Computer Club (CCC) has been demanding this right to digital privacy for over 25 years. The protection of the digital self not only affects computers but also telephones and other networked devices. “We can only hope that the politicians who only know the internet from print-outs don’t need another quarter of a century until they have taken this new fundamental right on board”, Dirk Engling, the CCC’s spokesman, commented.

The constitutional court judges point out in their oral reasons for the judgement that the systematic tapping of communication data and the creation of personality profiles are serious violations of basic rights. “We assume that this judgement will also apply to the constitutional review of the Data Retention Act”, Dirk Engling said. Several constitutional complaints have been filed against the data retention that came to effect in January.

“The judges have given the lawmakers a slap in the face for allowing all kinds of information systems to be spied on, in contravention of basic rights”, Dirk Engling continued. “Spying on hard disks will only be possible within strictly defined limits. The Federal Constitutional Court has provided humanity’s virtual self with a digital protective shield.”

Analysing the data seized will also have to be based on the criteria relating to the new basic right. The investigation authorities’ procedures when collecting evidence by digital means must now be immediately put to the test. The searching of hard disks by private companies, which has recently become commonplace, is therefore clearly unconstitutional. The judges also determined that informational self-protection through encryption is a right that may only be abrogated under very strict conditions.

The Chaos Computer Club once again came to Karlsruhe for the delivery of the judgement with the black, red and gold “Federal Trojan”, which is the symbol of resistance against online searches. The Green Party, which recently attracted negative attention by waving through former interior minister Otto Schily’s “spying laws” and endorsing the ban on hacker tools, tried to demonstrate their newly found love for digital civil rights with a vigil in front of the court. This civil rights friendly position will hopefully be maintained if the Greens get back into government.

The lawyers will turn their attention to interpreting the judgement in the next few weeks and draw the relevant conclusions. “Although the Federal Trojan was positively slaughtered, important other decisions on basic rights are imminent. However, we don’t expect Wolfgang Schäuble (the Federal Interior Minister) or Dieter Wiefelspütz (the German Social Democratic Party’s expert on domestic policy) to suddenly take our constitution seriously. The new basic right will only come to life if it is aggressively defended and exercised.”

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