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The German Constitutional Court on the Right in Confidentiality and Integrity of Information Technology Systems – a case report on BVerfG, NJW 2008, 822



On the 27th of February 2008, the German Federal Constitutional Court (Bundesverfassungsgericht) recognised in a landmark ruling for the first time a new constitutional right in the confidentiality and integrity of information technology systems. We will show in this case commentary why the Court found it necessary to introduce new legislation, and provide an overview of the newly established constitutional right.
Volume 6, Issue 1, April 2009
The German Constitutional Court on the Right in
Confidentiality and Integrity of Information
Technology Systems – a case report on BVerfG, NJW
2008, 822
Wiebke Abel* and Burkhard Schafer*
On the 27th of February 2008, the German Federal Constitutional Court
(Bundesverfassungsgericht) recognised in a landmark ruling for the first time a new
constitutional right in the confidentiality and integrity of information technology
systems. We will show in this case commentary why the Court found it necessary to
introduce new legislation, and provide an overview of the newly established
constitutional right.
DOI: 10.2966/scrip.060109.106
© Wiebke Abel and Burkhard Schafer 2009. This work is licensed
under a Creative Commons Licence. Please click on the link to read the terms and
Research Associate, SCRIPT; PhD Candidate in Law, University of Edinburgh; LLM, University of
Edinburgh (2006).
Senior Lecturer, University of Edinburgh, School of Law.
(2009) 6:1 SCRIPTed
1. Introduction
On the 27
of February 2008, the German Federal Constitutional Court
recognised in a landmark ruling for the first time a new
constitutional right in the confidentiality and integrity of information technology
The primary question the Court had to decide was the constitutionality of a
law authorising the secret services of North Rhine-Westphalia to surreptitiously
monitor and investigate the Internet. In particular, the law would have granted the
secret services the right to clandestinely intercept and search for communication via
the Internet, and to secretly access its information technology systems. This law had
been introduced as an amendment to Art 5.2 no. 11 of the Act on the Protection of the
Constitution in North Rhine-Westphalia (Gesetz über den Verfassungsschutz in
Nordrhein-Westfalen) from 20 December 2006.
The Court held in its judgement that such investigative actions do indeed interfere
with constitutionally guaranteed rights. Any legislation permitting such actions
therefore must be able to demonstrate that such an interference is justified by the
protection of other constitutional rights, necessary to achieve this protection and
proportionate in its impact. The Court found that the legislation as drafted was not in
accordance with the Constitution, and therefore unlawful.
It had been widely anticipated that the Court would rule the amendment
The preliminary hearing before the Constitutional Court had also
suggested this outcome.
However, the reasoning of the Court and the scope of the
decision came as a surprise to most observers. Most had expected that the Court
would merely extend its comprehensive jurisprudence on search and seizure
requirements for physical premises to the online environment. Instead, the Court
created in its decision a new fundamental right, which explicitly protects privacy and
personality rights of citizens in information and communication technology (ICT).
2. Background of the Case
The subject of the decision was the amendment of § 5.2 of the Act on the Protection
of the Constitution in North Rhine-Westphalia from 20 December 2006. However, the
amendment of this law was only one aspect in a discussion at federal level about the
legality of a new type of investigation methods, the remote searching of computers
and laptops. It is therefore necessary to give an account of this preceding debate.
The public and legal debate on this subject was triggered in 2006 by the application of
a state prosecutor to the German Federal Court of Justice (Bundesgerichtshof, BGH).
Hereafter “the Court”.
BVerfG, NJW 2008, 822.
See e.g. G Hornung, Ein neues Grundrecht. Der verfassungsrechtliche Schutz der "Vertraulichkeit
und Integrität informationstechnischer Systeme"”, (2008) 5 Computer und Recht, 299.
M Kutscha, “Mehr Schutz von Computerdaten durch ein neues Grundrecht?”, (2008) 15 Neue
Juristische Wochenschrift, 1042-1044.
(2009) 6:1 SCRIPTed
In this application, he asked for a warrant to search remotely a suspect’s computer in a
terrorism investigation, by covertly installing a surveillance programme similar to a
Trojan. The application was rejected on the 25 November 2006. The state prosecutor
appealed, claiming that Articles 102
, 110
and 94
of the Criminal Code
(Strafprozessordnung- StPO) allowed for such a search. His argument assumed a
substantial similarity between the physical search of premises, regulated in these
articles, and the remote access of a suspect’s computer. The BGH disagreed, rejecting
in its judgement the analogy between a traditional search of physical premises and
clandestine searches of a computer.
However, the decision mainly addressed formal
procedural questions, ruling that without explicit legislation, granting such a warrant
request would be ultra vires. The ruling left open the possibility that appropriate
legislation could be introduced to create such new search and seizure powers, and it
avoided any substantive decision as to the potential conflict such a law could create
with fundamental constitutional guarantees. The State of North Rhine-Westphalia, by
amending its existing law for the protection of the constitution, created just such a
legal power.
The Act on the Protection of the Constitution in North Rhine-Westphalia outlines the
rights of, and establishes a legal basis for operations by, the Constitution Protection
Agency, Germany’s main secret service for internal affairs. Article 5.2 of this Act
defines permissible actions to acquire information and private data from suspects. The
amendment in question, of Article 5.2(11) of the North Rhine-Westphalia
Constitution Protection Act, empowered the Constitution Protection Agency to carry
out two types of investigative measures: Firstly, secret monitoring and other
reconnaissance of the Internet (alternative 1), and secondly secret access to
information technology systems (alternative 2). Secret monitoring of the Internet is a
measure by which the Constitution Protection Agency obtains information about the
content of Internet communication using the communication technology in the way it
was intended to be used. These can be measures such as accessing an open website,
participation in chats or online fora, but also accessing an email inbox or accessing
restricted websites using a password obtained elsewhere, for example from an
By contrast, the secret access to an information technology system is
understood to be its technical infiltration, by taking advantage of the security
loopholes of the target system, or by installing a spy program.
The method at the core of the decision, infiltration of a computer through technical
means, also referred to as “online search”, “Federal Trojan”, or “remote searching”, is
one specific form of such information gathering. This investigative method tries to
accommodate the difficulties in investigations that emerge if criminal offenders, in
Regulates the search of premises.
Regulates the seizure and search of documents and digital storage devices.
Regulates the securing and seizure of evidence.
BGH, NJW 2007, 930.
BVerfG, NJW 2008, 822 (825).
(2009) 6:1 SCRIPTed
particular those from extremist and terrorist groups, use the Internet for
communication and to plan and commit criminal offences.
The purpose of remotely searching a computer is to enable investigators to search the
data stored on the hard disk and the working memory of the computer, to intercept the
email traffic, and monitor web browsing habits and instant messaging.
accomplish this, a specifically designed computer program, a remote forensic
software” (RFS) tool, is planted on the suspect’s computer without his knowledge.
This program is then able to copy all data stored on the computer and subsequently
transfer it back to the investigating authority for evaluation. Such a program shares
crucial features with well-known malware, in particular viruses and Trojans.
latter in particular can be used to access and extract personal data from targets, and
hence is equally suitable for data collection by police authorities. This is why the RFS
tool facilitating remote searches is often referred to as a “Federal Trojan” in Germany.
The advantage of using these technologies is that they can be installed clandestinely,
and without access to the suspect’s house or physical premises. They are designed to
be disguised as something harmless, when they actually include malicious or harmful
code, and therefore trick the suspect into installing them. Therefore, as with their
criminal counterparts, police Trojans require the unwitting cooperation of the target.
This can happen through opening an email, for instance an email that purports to
come from a bona fide state agency such as the local council or the Department for
If the infiltration is successful this method offers considerable advantages to the
investigation authority in comparison to traditional investigation methods. Because
the method is undertaken without the knowledge of the suspect, this person is not
alerted to the fact that the police considers him a target, as opposed to a traditional
house search. Furthermore, it allows collecting encrypted data in an unencrypted form
as the investigating authority can access the data while the user is typing it. Moreover,
passwords and further information on the usage pattern of the suspect can be
collected. This kind of information would hardly ever be possible to obtain using
traditional investigation methods.
A constitutional complaint is only admissible under German law if the complainant
can show that he is directly affected by the state act, and that one of the fundamental
rights enumerated in the first part of the Constitution is violated. The amendment of §
5.2 of the Act on the Protection of the Constitution in North Rhine-Westphalia limits
the applicability of this norm to illegal activities threatening the free democratic
fundamental order or the continued existence or the security of the Federation or of a
Federal state”
, and during the discussion about the introduction of the online search
as an investigative measure at federal level it was established that this should only be
BVerfG, NJW 2008, 822 (826).
K Leipold, “Die Online-Durchsuchung”, (2007) 4 Neue Juristische Wochenschrift Spezial 135.
U Buermeyer, “Die ‘Online-Durchsuchung’ Technischer Hintergrund des verdeckten hoheitlichen
Zugriffs auf Computersysteme”, (2007) 4 Höchstrichterliche Rechtsprechung im Strafrecht 154.
BVerfG, NJW 2008, 822 (826).
§ 3.1 Verfassungsschutzgesetz Nordrhein-Westfalen.
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used to investigate suspects in terrorist investigations or comparably severe cases.
Nevertheless, the four claimants filing a constitutional complaint against the
amendment of § 5.2 of the Act on the Protection of the Constitution in North Rhine-
Westphalia claimed that this law constituted a direct violation of their constitutional
rights, even though none of them had been suspects in a criminal investigation. The
Court accepted this view and admitted the constitutional complaints. The four
claimants could all show that, although not involved in any illegal behaviour
themselves, their professional activity might wrongly be classified as such and may
cause the remote searching of their computers under the new amendment, thereby
violating their rights guaranteed by the constitution. One claimant was a journalist
accessing Internet sites operated by persons with extremist views and connections to
extremist organisations, and participating in chats hosted on these websites, while also
using the computer for private purposes. Another claimant was a member of a
political party under observation by the North Rhine-Westphalian Constitution
Protection Authority, who was using the computer for both work and private
purposes. A further claimant was a lawyer assisting asylum-seekers, some of whom
are under observation by the North Rhine-Westphalian constitution protection
authority, while using the computer for work and private purposes.
Having passed the first formal hurdle and having been accepted for a substantive
decision, the Court now had to determine whether (a) § 5.2 of the Act on the
Protection of the Constitution in North Rhine-Westphalia was constitutional, and (b)
was invited to consider more generally the constitutionality of this type of
investigative methods.
3. The Decision
The Court ruled that § 5.2 of the Act on the Protection of the Constitution in North
Rhine-Westphalia was not in compliance with the constitution and therefore null and
void. As indicated above, this result did not come as a surprise. However, the
expectation had been that the Court would only need to apply the explicitly
enumerated basic rights and constitutional principles to reach this conclusion. The
Court however found that for several reasons the existing rights canon was not
sufficient to protect the constitutional rights of citizens from the potential loss of
liberty that the remote searching of computers could cause, and thus created or
maybe inferred from first principles a new basic right in the confidentiality and
integrity of information technology systems.
This surprise move was partly due to the welcome fact that the court engaged in
considerable depth with the specific technological issues that the legislation raised.
Three of the countries leading academics in the field, Prof Felix Freiling, Chair of
Computer Science at the University Mannheim, Prof. Dr. Andreas Pfitzmann, head of
the privacy and security group at Dresden University of Technology and Prof. Dr. Dr.
hc Ulrich Sieber, director at the Max Planck Institute for Foreign and International
Criminal Law were appointed by the court as technical experts. Maybe more unusual
was the background of a fourth expert advising the court. Andreas Bogk is a freelance
Hacker at Clozure Inc and CEO at Chaos Computer Club Events, one of the biggest
and most influential hacker organizations. Their academic and practical expertise was
fully matched by the court, whose judges with only one exception all were previous
holders of senior academic positions.
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3.1 The Respondents
The Land (regional) Government of North Rhine-Westphalia (having introduced the
new investigative power) and the Federal Government (as a discussant to the Court on
this matter, anticipating a similar issue arising in the future for the federal agencies)
accepted from the beginning that strict constitutional scrutiny of the new measure was
necessary. However, they also argued that RFS tools were sufficiently similar to
existing police powers in the offline world that analogous application of the relevant
constitutional norms was sufficient. The Land submitted in addition that its law as
drafted was compliant with the relevant provision from the constitution. Despite this
united front on the principle, the two respondents identified different constitutional
norms as “closest off-line match”. The Land Government identified the constitutional
right guaranteeing the privacy of telecommunications in Article 10.1 of the German
Basic Law (Gundgesetz GG) as applicable law. It argued that remote online search
was essentially a new form of wiretapping, and its proposed legislation extended the
safeguards in place for wiretapping operations to the new technology. The Federal
Government by contrast argued that such investigative measures would best be
covered by the fundamental guarantee to the inviolability of the home in Article 13
GG, seeing the online search as the equivalent to the physical search of a suspect’s
While there was disagreement about the appropriate legal classification of the process
of remote online searches, both parties were in agreement regarding the regulation of
the outcome of such a search. They conceded that the right to informational self-
determination as derived from Article 2.1 GG in connection with Article 1.1 GG
could serve as a standard for an online search. The legal argument mirrored in this
respect an earlier landmark decision of the Constitutional Court that had shaped
Germany’s data protection law in the past.
From the position of the state and the investigative authorities, this strategy made
sense. They could have argued that the new technology was so different from existing
police powers that none of the constitutional norms applied, and only non
constitutional law such as criminal law provisions against hacking needed
amendment. However, this would have been a high risk strategy with little chance of
success. Too obvious was the highly intrusive nature of the remote forensic software
(RFS) technology, and too obvious its similarities to constitutionally sensitive forms
of surveillance to even attempt to treat it as a mere police procedural issue. By
conceding the main point, the state was able to choose its battlefield and design the
relevant legislation in such a way that the demands of constitutional compliance did
not disrupt police efficiency. The consequences of both articles for police procedure
and investigative practice are well understood, and a considerable case law creates a
high degree of legal certainty. Since violation of the constitution can result in the
inadmissibility of otherwise reliable evidence, this degree of certainty is highly
desirable for police practice. A more cynical view would be that over the last decades,
police and secret services have learned how to abide by the spirit of these provisions,
while working creatively around the restrictions. The codes regulating police
procedure and criminal investigation, most importantly the Criminal Procedure Act
(Strafprozessordnung StPO) provides the necessary procedure and safeguards that
concretise the protective norms of the constitution. The procedural hurdles and
requirements that the police have to observe, for instance the warrant requirements,
differ in detail between wiretapping and search of premises. Why Federal and State
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Government expressed different preferences is not obvious. Broadly speaking, the
position of the Regional Government was more aggressive, the position of the Federal
Government more restrained, since the protection against physical searches is
generally more rigorous than that of wiretapping operations. Conceptually, the two
approaches betray a different understanding of the nature of the Internet. The Land
took a conservative approach that reduces the experience of the Internet to what it
technically is, telecommunication similar to making a phone call. The Federal
Government by contrast indicated a willingness to take the user experience and the
user understanding of information systems serious, and conceptualised at least certain
forms of computer and Internet use not just as an essentially trivial activity rooted in
the physical world, but as creating its own, digital world that deserves being taken
seriously. Our “home” is partly online, and therefore rules protecting our physical
homes should also apply to our digital habitats.
In the next section, we will analyse how the Court responded to these submissions.
3.2 Article 10.1 Grundgesetz – The Secrecy of Telecommunications
The right to the secrecy of telecommunications according to Article 10.1 GG protects
the non-physical transmission of information to individual recipients with the aid of
telecommunications devices:
(1) The privacy of correspondence, posts and telecommunications
shall be inviolable.
(2) Restrictions may be ordered only pursuant to a law. If the
restriction serves to protect the free democratic basic order or the
existence or security of the Federation or of a Land, the law may
provide that the person affected shall not be informed of the
restriction and that recourse to the courts shall be replaced by a
review of the case by agencies and auxiliary agencies appointed by
the legislature.
The protection of this fundamental right covers any type of telecommunication
regardless of the transmission type used (cable or broadcast, analogue or digital
transmission), and the data transmitted (speech, picture, sound, or other data). The
scope of protection of the secrecy of telecommunications therefore also includes any
communication via the internet.
Furthermore, protected by this right are not only the
contents of the communication, but also details about their general circumstances,
such as details about the communication partners, and the transmission type (by
email, chat, VoIP).
Particularly important for online contexts, metadata generated as
a result of communication had been included into the scope of the article by the courts
in previous decisions. The Court therefore affirmed that any ongoing communication
via the internet, and the data generated by such communication falls within the scope
of the protection of Article 10.1 GG. Hence, every investigation method targeting
See e.g. BVerfGE 67, 157 (172); 106, 28 (35).
See BVerfGE 113, 348 (383) for emails.
See e.g. BVerfGE 67, 157 (172); 85, 386 (396).
(2009) 6:1 SCRIPTed
ongoing communication and the data related to it has to be in compliance with the
right to the secrecy of telecommunications as laid down in Article 10.1 GG. The
scope of protection of this fundamental right is affected regardless of whether the
measure targets the transmission channel or the terminal used for
As seen above, Art 10(2) GG permits the interception of communication under certain
conditions, and the Land Government of North Rhine-Westphalia stated that the
amendment of § 5.2 of the Act on the Protection of the Constitution in North Rhine-
Westphalia meets the constitutional requirements as to the justification of the
Procedurally, a law is required that creates the relevant police
powers. Substantially, any law that violates prima facie a constitutional right has to
have as its aim the protection of another right listed in the constitution, the violation
of the right has to be necessary to achieve the intended goal and the violation must be
proportionate to protection that is gained.
How the legislation achieves this
balancing act is however largely left to Parliament. Having for instance a requirement
for judicial warrants in such legislation will help it to pass the constitutionality test,
but is not a direct constitutional requirement. Conceptualising online surveillance
through Trojans as interception of communication was the view proposed by the
North Rhine-Westphalian Government and the police forces, based on the notion that
the Trojan itself can only function when there is an active communication connection,
that is when the computer is connected to the internet and data is transmitted. .
The Court only agreed in parts with this analysis. It found in particular that Article
10.1 GG does not protect telecommunication data that is stored on ICT devices after
the communication process is completed, especially if the data is not in the public
domain and the affected person has undertaken steps to protect the data from
unauthorised access.
Furthermore, the Court stated that the protection of Article 10.1
GG does equally not apply if a state agency monitors the use of an information
technology system as such, or searches the storage media of the system. This is also
the case if a telecommunication connection is used for transmission of the data
collected to the evaluating authority, as is the case for instance with searching of
computers online.
In our opinion, this analysis is correct. That the Trojan requires
that the suspect is at some point online and engaged in communication does not make
the search a wiretapping operation any more than a police officer who seizes a
suspects phone during a physical search of his premises changes the nature of the
operation from a search into an interception of telecommunication.
The secret infiltration of a complex information technology system offers the
opportunity to spy on the system as a whole, and is not just an intercept of an isolated
exchange of communication as in a traditional wiretapping operation.
In particular,
BVerfGE 106, 28 (37-38); 107, 299 (312-313).
BVerfG, NJW 2008, 822 (841).
BVerfGE 35, 202 “Lebach decision”.
BVerfG, NJW 2008, 822 (842).
J Rux, “Ausforschung privater Rechner durch die Polizei- und Sicherheitsbehörden”, (2007) 62 (6)
JuristenZeitung, 285.
BVerG, NJW 2008, 822 (842).
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there is a chance that personal data stored on the computer, which is unrelated to and
goes over and above the contents and circumstances of the ongoing
telecommunication, is collected (even if this is unintended). Thus, the potential threat
to civil liberties goes far beyond the mere surveillance of telecommunication, and also
beyond the protective scope of Article 10.1 GG.
The Court therefore came to the conclusion that Article 10.1 GG can only provide
sufficient protection against the infiltration of an information technology system if the
surveillance is restricted exclusively to data emanating from an ongoing
telecommunication process.
If the infiltration serves to collect data over and above
telecommunications, e.g. by copying data from the hard drive, Article 10.1 GG is not
on point. In practice, this means that hardly any search will be a pure”
communications intercept. The main aim of the RFS tool as discussed above is to
collect data stored on a computer, and the conceptual gap to communication
interception is too wide to be bridged by analogous interpretation of Article 10.1. This
also means that several aspects of the remote searching of computers are not covered
by the guarantee of secrecy in telecommunications as provided by Article 10.1GG.
3.3 Article 13.1 Grundgesetz – The Inviolability of the Home
The guarantee of the inviolability of the home granted by Article 13.1 GG protects the
private living space from intrusion by the state:
(1) The home is inviolable.
This guarantees an essential space to the individual as a necessary precondition for
personal dignity, as well as in the interest of the development of ones personality.
This guarantee may only be encroached upon under special preconditions as outlined
in Article 13.2 to 13.7 GG:
2) Searches may be authorized only by a judge or, when time is of
the essence, by other authorities designated by the laws, and may be
carried out only in the manner therein prescribed.
(3) If particular facts justify the suspicion that any person has
committed an especially serious crime specifically defined by a law,
technical means of acoustical surveillance of any home in which the
suspect is supposedly staying may be employed pursuant to judicial
order for the purpose of prosecuting the offense, provided that
alternative methods of investigating the matter would be
disproportionately difficult or unproductive. The authorization shall
be for a limited time. The order shall be issued by a panel composed
of three judges. When time is of the essence, it may also be issued by
a single judge.
(4) To avert acute dangers to public safety, especially dangers to
life or to the public, technical means of surveillance of the home
However, this is technically currently still impossible to ensure (See note 4, at 299).
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may be employed only pursuant to judicial order. When time is of
the essence, such measures may also be ordered by other authorities
designated by a law; a judicial decision shall subsequently be
obtained without delay.
(5) If technical means are contemplated solely for the protection of
persons officially deployed in a home, the measure may be ordered
by an authority designated by a law. The information thereby
obtained may be otherwise used only for purposes of criminal
prosecution or to avert danger and only if the legality of the
measure has been previously determined by a judge; when time is of
the essence, a judicial decision shall subsequently be obtained
without delay.
(6) The Federal Government shall report to the Bundestag annually
as to the employment of technical means pursuant to paragraph (3)
and, within the jurisdiction of the Federation, pursuant to
paragraph (4) and, insofar as judicial approval is required,
pursuant to paragraph (5) of this Article. A panel elected by the
Bundestag shall exercise parliamentary control on the basis of this
report. A comparable parliamentary control shall be afforded by the
(7) Interferences and restrictions shall otherwise only be
permissible to avert a danger to the public or to the life of an
individual, or, pursuant to a law, to confront an acute danger to
public safety and order, in particular to relieve a housing shortage,
to combat the danger of an epidemic, or to protect young persons at
The spatial sphere in which private life takes place constitutes the interests protected
by this fundamental right.
The private living space is, however, not limited to the
private flat or house of the rights holder, but also includes business and office space.
It protects this space from physical intrusion, as well as from the use of technical
measures that provide an insight into the otherwise protected happenings inside the
private living space. This is, for example, the acoustic and optical surveillance of a
living space,
but also the measurement of electromagnetic radiation to monitor the
use of information technology systems inside the dwelling.
The Federal Government argued that the online search of computers can be compared
to the search of a house, and Article 13 GG can therefore be used as a standard for
such measures. As we have seen, unlike the previous provision, Article 13 contains
directly and explicitly non-negotiable conditions for any prima facie infringement.
This means that the state is considerably more limited in adjusting the relevant
procedural law to accommodate the new technology. While there is no formal ranking
See BVerfGE 89, 1 (12); 103, 142 (150-151).
BVerfGE 32, 54 (69).
BVerfGE 109, 279 (309, 327).
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between different constitutional rights, the greater care that the drafters used to
specify in some details the non-negotiable core of Article 13 in comparison to Article
10 indicates just how serious any interference with the physical space is considered.
Consequently, the Federal Government conceded that the high ”intensity” of the
encroachment on civil liberties that any restriction of Article 13 brings also means
that such a measure should only ever be the ultima ratio for a (federal or state)
Constitution Protection Agency.
As with its analysis of Article 10, the Court agreed in parts and rejected the analysis
in parts. It found that Article 13.1 GG could only provide protection of the private
living space against the secret intrusion by police or secret service to physically
manipulate information technology systems, and against the infiltration of such
systems to monitor the events in a flat using peripherals connected to the system (such
as the use of inbuilt microphones for eavesdropping).
It stated that such actions would be comparable in its nature to the traditional search
of a house and would therefore be covered by Article 13 GG. However, even this
protection did not go far enough, and it underestimates the importance of the digital
world for today’s citizens. The Court argued that Article 13 GG is insufficient to
protect rights holders against the general infiltration of information technology
systems using a Trojan or similar software to access the stored data and monitor the
communication, even if the system is located in a dwelling.
One specific problem
created by RFS searches is that infiltration and monitoring can be performed
regardless of the location of the information technology system. Hence, a location-
dependent protection is useless if the system is located outside the private space, or on
the move between “protected” areas. Especially small information technology devices
such as laptops, PDAs and mobile phones are designed to be carried around. The
precise location of the system will often even be unknown, and is also irrelevant for
investigators when infiltrating the device to access stored data. This would have had
the counterintuitive consequence that a citizen who starts writing an email on his
laptop at home, reviews it on a park bench and completes and sends it back at home
moves between protected and unprotected environments, loosing and gaining
apparently arbitrarily constitutional protection, and this creating artificial distinctions
in an activity that is experienced as uniform by the citizen.
3.4 Article 2.1 Grundgesetz in Conjunction with 1.1 Grundgesetz The Right to
Information Self-determination
Having analysed and rejected as insufficient both Article 10 and Article 13, the Court
developed its own answer. It started its analysis by the now commonplace insight that
due to recent technological developments, information technology devices are
omnipresent in today’s societies and their use is of considerable importance to many
This applies first and foremost to personal computers, but as the Court
points out, the relevance of information technology devices is not limited to personal
BVerfG, NJW 2008, 822 (843).
M Gercke, “Heimliche Online-Durchsuchung: Anspruch und Wirklichkeit; der Einsatz
softwarebasierter Ermittlungsinstrumente zum heimlichen Zugriff auf Computerdaten”, (2007) 23 (4)
Computer und Recht, 245 (250).
BVerfG, NJW 2008, 822 (841).
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computers only. It recognised that many items that are used on an everyday basis by
large sections of the German population include elements of information
Mobile phones, BlackBerries and even MP3 players are prominent
examples for such frequently used devices, intelligent fridges, toasters and even
jewellery are already appearing on the horizon as next extensions. Furthermore, the
Court recognised that the cultural and social significance of such devices and of
personal computers in particular has increased significantly, as they can be used for a
large number of different purposes, such as comprehensive administration and
archiving of an individual’s private and business matters, or in one of the many
entertainment applications for leisure activities.
Thus the data stored on information
technology devices provides comprehensive information about the personal
circumstances, social contacts, personal preferences and activities of the user.
The Court argued that for most people, the use of the Internet is an essential part of
the way they live their lives, and an important aspect of the way in which they
develop and express their personality. It also stated that in addition to the new
potential for the development of one’s personality, the increasing spread of and
reliance on networked information technology devices also creates new dangers for
the personal development of individuals. In addition to the potentially sensitive data
stored on the devices themselves, the user of a device connected to the Internet will
(knowingly and unknowingly) leave data and information related to his personality
and user behaviour with intermediaries and on other servers behind. Knowledge about
every single piece of such data can be harmless, but, as the Court argued, the
combination of the data stored on information technology devices and held by other
entities in a network can make it possible to form a profile if a third party collects and
evaluates it.
Above all, however, the networking of the system opens to third parties
a technical access facility, which can be used to spy on or manipulate data kept on the
system. The individual cannot detect such access at all in some cases, or at least can
only prevent it to a limited degree.
It is the combination of the changing social and cultural significance of the use of
information technology devices for the development of one’s personality combined
with the recognition of new, equally technologically enabled threats to the free
development of one’s personality through e.g. new data mining capacities, that led the
court to recognise the fundamental importance of solidifying constitutional guaranties
in online settings.
In the year when the first TCP/IP-based wide-area network was operational and all
hosts on the ARPANET were switched over from the older NCP protocols, and five
years before the Internet had been opened to commercial providers, the Constitutional
Court had in a landmark ruling unrelated to ICT created the core of Germany’s data
protection law.
The right to information self-determination, which is not explicitly
mentioned in the constitution, was derived from Article 2.1 in conjunction with
Article 1.1 GG, which guarantee the right to free development of one’s personality
BVerfG 65,1.
(2009) 6:1 SCRIPTed
and a general “right to dignity”, respectively. Ruling on the constitutionality of the
national census, it establishes a legal entitlement to the capacity of the individual to
determine in principle the disclosure and use of one’s personal data.
This right
resulted from the court’s recognition that the state had multiple possibilities to collect
process and use private data, and that the evolution of electronic data processing
techniques had simplified these to such an extent that a detailed image of the
personality of the individual became feasible. This had the potential to impair
confidentiality interests of the affected person, which are protected by fundamental
rights. Moreover, the mere anticipation that one’s data could be collected entailed an
unacceptable encroachment on one’s freedom of conduct, encouraging people to
forgo valid, and perfectly legal, lifestyle choices in the mere anticipation that
information about them could be collected and leaked to third parties. This means in
particular that no concrete threat has to be evident. The Court stated that this is in
particular the case if personal data can be used and linked in a manner, which the
person concerned can neither detect nor prevent.
Fear of surveillance is just as
limiting to the free development of a social personality as the surveillance itself.
Both, the Land Government of North Rhine-Westphalia and the Federal Government
conceded that the right to information self-determination should be a fundamental
right standard for online searches, but argued also that it is sufficient to regulate such
investigative measures.
However, the Court found that the right to information self-determination does not
sufficiently appreciated the fact that individuals rely on information technology
systems to develop their personality and hence entrust the system with sensitive data,
or inevitably provide such data by merely using the system.
A third party accessing
such a system can obtain potentially large amounts of sensible information about an
individual, without having to rely on further data collection and processing measures.
In a way, on could say that these measures cut out the middle man. The data comes
already preprocessed and arranged by the data subject. Since the older data protection
decision focused on the process of data handling and organization, it was in danger of
being circumvented by the new surveillance technology. The active, if unwitting,
participation of the suspect that is crucial for the functioning of the RFS had therefore
also the potential to deprive the suspect of otherwise taken for granted protection.
Online searching of a computer is of a severity for the personality of the affected
person that goes beyond mere individual data collection, against which the right to
information self-determination provides protection, and is therefore not covered by
this fundamental right.
4. The Right in the Confidentiality and Integrity of Information
Technology Systems
Having determined that existing rights are not sufficient to protect citizens from the
threat against their personality rights, the Court established a new fundamental right
BVerfGE 65, 1 (43); 84, 192 (194).
BVerfG, NJW 2008, 822 (844).
(2009) 6:1 SCRIPTed
in the confidentiality and integrity of information technology systems to close the
regulatory gap.
Just like the fundamental right in information self-determination, this right is not
explicitly mentioned in the constitution. Although it does not happen very often in
Germany that a new basic right is established through judicial activism, the right of
the Court to creatively fill identified gaps in the constitution’s civil rights framework
is widely recognised and, unlike in the US, originalism has never been a prominent
position in post-war Germany.
In the same way as the right in information self-determination, this new fundamental
right is based on Article 2.1 GG in conjunction with Article 1.1 GG, and is derived
from a general personality right. Article 1 GG that states that “Human Dignity is
inviolable, and all organs of the state have the ultimate aim to protect it” establishes a
general overriding principle in the German legal system, and is designed explicitly as
a stop-gap solution if legislative solutions fall behind social change. The new
constitutional right in the confidentiality and integrity of information technology
systems protects, so the Court, the personal and private life of rights holders from the
state accessing information technology devices, and in particular against access by the
state of the information technology system as a whole, and not only of individual
communication events or stored data.
4.1 Which Systems are protected?
The Court applies the guarantees of this right to information technology systems, but
interestingly in doing so does not deliver a definition of such a system. Instead, it lists
systems that are not protected by this right, and provides a description of minimum
abilities an information technology system must possess to fall into the protection
scope of this fundamental right. By doing so, it keeps the protection scope of this
basic right very broad and deliberately avoids tailoring this new basic right to specific
technologies. It thereby clearly acknowledges the rapid technological developments of
information technology devices, and attempts to create technology neutral legislation
with this judgement, hence trying to keep the new basic right “future-proof”.
The Court finds that not all systems that are able to create, process or store personal
data require special protection of a separate guarantee of personal rights.
that contain data pertaining to a certain aspect of the affected person’s life only are
not protected by this new fundamental right. Such systems could, for example, be
non-networked electronic control systems in household appliances.
Clearly, access
to such data would not enable authorities to gain a detailed insight into the personality
of the person concerned.
R Alexy, R Dreier, “Statutory Interpretation in the Federal Republic of Germany”, in N MacCormick
and R Summers (eds), Interpreting Statutes: A Comparative Study (Darthmouth, Aldershot: 1991) 72-
BVerfG, NJW 2008, 822 (846).
See for a discussion on technology neutrality for example, C Reed, “Taking Sides on Technology
Neutrality” (2007) 4:3 SCRIPTed 263-284.
BVerfG, NJW 2008, 822 (847).
(2009) 6:1 SCRIPTed
The protective scope of the fundamental right in confidentiality and integrity of
information technology system is applied to systems which alone, or in their technical
interconnectedness, can contain personal data of the person concerned to such a
degree and in such a diversity that access to the system facilitates insight into
significant parts of the life of a person or indeed provides a revealing picture of their
Such systems are for example personal computers and laptops (used for
both private and business purposes), and mobile phones and electronic calendars,
which have a large number of functions and can collect and store many kinds of
personal data. Interestingly, the Court decided that the mere ability of the system to
store personal data is sufficient. Whether this capacity was utilised by the user in
question need not be determined in the individual case. This means that this right
protects a system, such as a computer, even if it does not actually contain sensitive
personal data, as long as it is technically able to store and process such information.
Furthermore, it acknowledges that systems that are part of a network (such as the
Internet) do not always contain personal data themselves, but data about the person
concerned can be stored on another system within the network, which however can be
accessible if the system is infiltrated. This new fundamental right thus is to apply to
data that is outsourced, for example using cloud computing technology.
This makes
the decision also the first that explicitly recognised the pertinent legal issues that
cloud computing and its diffuse ownership and control arrangement will inevitably
4.2 What is protected?
What precisely does the basic right in integrity and confidentiality of information
technology systems protect? Firstly, it protects the interest of a user of an information
technology system in ensuring that the data created, processed and stored by the
system remains confidential.
Secondly, this right is violated if the integrity of such a
system is affected by the system being accessed in such a way that third parties can
use its performance, functions and storage contents. This would mean, as the Court
establishes, that the most crucial technical hurdle to enable the spying, surveillance or
manipulation of the system would be overcome.
The Court specifies further that this basic right protects the right holder in particular
from the clandestine access of an information technology system that is targeted at the
system in its entirety or its major parts. The scope of protection of this right covers
both the data kept on the working memory as well as data which is temporarily or
permanently kept on the storage media of the system. It also protects against data
acquisition that does not rely on the data processing procedures of the system itself,
but nevertheless targets these, such
as so-called key-loggers, which monitor the
keystrokes of a user to gain passwords and other crucial login details.
For a discussion on Cloud Computing see: M Mowbray, “The Fog over the Grimpen Mire: Cloud
Computing and the Law”, 6:1 SCRIPTed 132-146.
BVerfG, NJW 2008, 822 (847).
(2009) 6:1 SCRIPTed
The Court further states that the protection arising from this fundamental right does
not depend on the degree of difficulty in accessing the system. The Court therefore
acknowledges that users of information technology systems have a varying
knowledge of technical means to protect systems from being infiltrated by third
parties, and does not grant users with a better knowledge a higher degree of
However, a protection only exists if the person concerned considers the system his
own, and thus may presume that he alone or others authorised by him, such as close
family members, use it in a self-determined manner. Using a public access
information technology system in a rail station that provides timetable and travel
information is therefore not covered. Covered however is also the use of one’s own
system via the use of information technology systems that are at the disposal of
others. This could, for example, be the remote access of one’s system or external
storage device via a computer in a cyber café.
4.3 Restrictions
However, the right in the confidentiality and integrity of information technology
systems is not absolute. It can be restricted for both preventive purposes and to
prosecute crimes. Yet, any measure that restricts this fundamental right has to be
proportionate to the violation, especially if the measure is carried out without the
knowledge of the suspect. Hence, the Court has found that a measure restricting this
right is only proportionate where sufficient evidence exists that significant higher-
ranking fundamental values need to be protected. Higher-ranking fundamental values
are the life and integrity of other citizens, the foundations of the state, and essential
values of humanity.
However, the Court then softens this requirement, ruling that a
high level of probability that the danger will materialise in the near future is not
Furthermore, any such measure has to be scrutinised and confirmed by a judge on a
case-by-case basis to guarantee an objective and independent control prior to the
execution, and it has to be based on a constitutional legal basis.
A further requirement is that any measure restricting the right in the confidentiality
and integrity of information technology systems does not violate the core area of the
private conduct of life, which includes among other things communication and
information about inner feelings or deep relationships. The private conduct of life is
an absolute fundamental right, which cannot be restricted (Article 1.1 GG right to
human dignity). Since it will often be very difficult to differentiate between core area
and non-core area data during the investigation process, the Court states that adequate
procedures have to be in place for the examination stage of the data. In particular, if
core area data is detected, this data has to be deleted immediately and the use of this
data by the state is prohibited.
However, this raises the dilemma that the requirement
to delete the collected core area data cannot undo the violation of the absolute right to
BVerfG, NJW 2008, 822 (849).
BVerfG, NJW 2008, 822 (853).
BVerfG, NJW 2008, 822 (854).
(2009) 6:1 SCRIPTed
human dignity. Furthermore, as Kutscha points out, although the measure itself has to
be permitted by a judge, the Court has not established a requirement for a judge to
control the analysis process.
5. Conclusion
The reasoning of the Court has been, from a technology or technologically aware
perspective, exceptionally well-grounded, thereby gainsaying frequent criticism that
legal responses are formed by people ignorant of the relevant technology.
Furthermore, the newly developed fundamental right is drafted broadly enough to
sufficiently deal with future technological developments.
While the main impetus of the ruling was to increase protection of citizens, the Court
has also established that remote online searching of computers is not generally an
unconstitutional measure, but that legislation allowing for this will have to be in strict
compliance with the right in the confidentiality and integrity of information
technology systems in addition to the already established protection of Articles 10 GG
and 13 GG. One the one hand, this means that the Court has paved the way for
Germany to act on the recommendation of the Council of the European Union that
Member States should facilitate the clandestine search of computers of suspects to
combat cybercrime.
At the same time, it has established high procedural hurdles for
the use of this technology. An issue that cannot be discussed in this paper is the
potential border conflicts that the technology can bring with it, if a RFS migrates on a
server outside the jurisdiction of the investigating police, or if a suspects physically
carries an “infected” device abroad.
Since the protection of Article 1 covers also
foreign nationals on German territory, potential for conflict is therefore high if other
member states decide to introduce the technology with comparatively lower
By creating the new fundamental right in the confidentiality and integrity of
information technology systems the Court has, for the first time, recognised that
information technology not only plays an important role in people’s life as an add-on
or extension to live in the physical world, but also that an increasing number of people
“live” online. The Internet has become a living space, where people make friends,
form societies and exchange information, and the Court has acknowledged that
existing legislation is insufficient to adequately protect citizens from state violations
of this digital environment. The digital citizen” has, as a result of this case, come a
step closer. By the same token, it is not inconceivable that the Court will in the future
expand this concept also in the opposite direction. At present, the Federal Trojan is
understood as a digital tool used by real, physical police officers. But if the Court
See note 5, at 1043.
Council of the European Union, Council Conclusions on a Concerted Work Strategy and Practical
Measures Against Cybercrime”, 2987
Justice and Home Affairs Council meeting, 27-28 November
2008, at
See W Abel, “Agents, Trojans and tags: The next generation of investigators”, (2009) 23:1&2
International Review of Law, Computers & Technology 99-108; and W Abel, B Schafer Big Browser
Manning the Thin Blue Line – Computational Legal Theory Meets Law Enforcement”, (2008) 2
Problema, 51-84, for a more in-depth analysis of the problems surrounding the remote searching of
(2009) 6:1 SCRIPTed
takes its own reasoning serious, it could as well consider the Trojan itself as a digital
police officer, subject to the same restrictions but also powers that its physical
counterparts posses. The future is likely to see new attempts by regional and federal
Governments in Germany to create constitution proof” procedural laws that precede
the precise legal foundation required by the Court. We are likely to see challenges
against these redrafted laws following suit, giving the Court more opportunity to flesh
out the new right into the confidentiality and integrity of information technology
systems. In particular the “third party effect” of the ruling has yet to be determined,
and the degree in which employers, ISPs and content providers such as Google will
also be considered potential infringers of this new right. The UK Phorm saga for
instance seems like an ideal application of the new right to private sector actors. This
will also require rethinking the precise relation between the new right and its older
brother, the right in information self-determination. Information self-determination, as
the name expresses, is primarily about the free choice of data subjects, including the
choice to share his data. This element of choice is absent from the new right, casting
even more doubts if the present practice of data handlers to ask for consent will be
sufficient in the future.
... Also, the terms govware, policeware, or government Trojan are commonly used. RFS is deployed on the target information system and enables remote access to an electronic device without its owner's or user's knowledge [13], [14]. RFS is commonly used for (1) remote investigation of an electronic device, (2) monitoring the activity and use of an electronic device, (3) acoustic and video monitoring of an electronic device's surroundings, and (4) intercepting (e.g., encrypted) communication at its source [15]. ...
... RFS is commonly used for (1) remote investigation of an electronic device, (2) monitoring the activity and use of an electronic device, (3) acoustic and video monitoring of an electronic device's surroundings, and (4) intercepting (e.g., encrypted) communication at its source [15]. These methods give investigators considerable benefits compared to the traditional investigation methods as they can be used without the knowledge of the target suspect and they enable the acquisition of encrypted data before it is encrypted [14]. Acquiring data, such as keystrokes and screenshots, activating microphones and cameras [16], and collecting usage patterns [14], [17] are all kinds of information that law enforcement authorities would have troubles acquiring using traditional methods. ...
... These methods give investigators considerable benefits compared to the traditional investigation methods as they can be used without the knowledge of the target suspect and they enable the acquisition of encrypted data before it is encrypted [14]. Acquiring data, such as keystrokes and screenshots, activating microphones and cameras [16], and collecting usage patterns [14], [17] are all kinds of information that law enforcement authorities would have troubles acquiring using traditional methods. ...
Conference Paper
Full-text available
The rapid development of the cyberspace brought about a relatively new type of crime, namely cybercrime, that transcends both time and space convergence conditions of traditional crime definitions. The darknet and anonymity it assures have been very inviting for cybercriminals in the recent years and it has been plagued with criminal activity, such as distribution of child pornography, illegal arms trafficking or drug trafficking. The purpose of the paper is to show legislative limits of investigating crimes committed using the darknet in Slovenia on examples of a few basic investigative acts: identification of the IP holder, search and seizure of electronic devices, undercover investigative measures and use of malware. Our main finding is that the current legal limitations do not allow a deep darknet investigation of potential offenders. If an IP address of a potential offender is leaked, law enforcement authorities can identify the IP address holder and seize his related electronic devices. The current legal limitations effectively end the investigation at this point as they do not allow the use of any kind of malware by the law enforcement authorities.
... This is one reason why the German (and global) IT industry and civil society organizations resist government hacking efforts. Moreover, the exploitation of vulnerabilities in IT security products interferes with individuals' legally-guaranteed rights to the protection of the integrity and confidentiality of IT systems enshrined in a 2008 German Constitutional Court ruling (Abel & Schafer, 2009). Therefore, the intrusion of security agencies into computer systems via the exploitation of an unknown vulnerability requires appropriate and proportionate justification within the remits of the national criminal and basic law. ...
Current German cybersecurity policy suffers from several gaps that this section examines in more detail. These gaps become apparent in international comparison and contrast with German officials' own claims that Germany’s cybersecurity policy is strategically comprehensive. First, Germany has not devised a clear concept for the goal, scope, and legal framework of "active cyber defence" measures. Second, a major question remains that of the overarching institutional architecture for cybersecurity, including the responsibilities of the individual security authorities in the cyber domain and their differentiation and cooperation. Third, the debate on how the state should deal with IT security vulnerabilities is still in its infancy. Fourth, an implementation concept for the politically undisputed increase in the liability of software manufacturers for vulnerabilities in their products is lacking. Fifth, a national and European industrial policy on cybersecurity, which is widely called for under the banner of “digital sovereignty”, is still largely undefined. Finally, Germany must define and assume a more comprehensive role in international efforts to maintain peace and stability in cyberspace.
... This is one reason why the German (and global) IT industry and civil society organizations resist government hacking efforts. Moreover, the exploitation of vulnerabilities in IT security products interferes with individuals' legally-guaranteed rights to the protection of the integrity and confidentiality of IT systems enshrined in a 2008 German Constitutional Court ruling (Abel & Schafer, 2009). Therefore, the intrusion of security agencies into computer systems via the exploitation of an unknown vulnerability requires appropriate and proportionate justification within the remits of the national criminal and basic law. ...
Full-text available
Cybersecurity as a responsibility of public institutions and as a field of cooperation between the government and the private sector is at odds with existing responsibilities. The protection of digital systems concerns a wide range of public services and organisations. In Germany, this cross-cutting nature of cybersecurity meets an already strongly subdivided structure of responsibilities in the area of security. Also, cybersecurity requires far greater cooperation between the state and business than traditional security policy challenges, since the majority of systems affected by cyber attacks are not within the state’s sphere of responsibility. As a result, there are various forms of public-private cooperation. These factors lead to a confusing and immature allocation of cybersecurity responsibilities.
... Conversely, some investigative methods by police use the very same technologies that criminal hackers use to exploit computer vulnerabilities. In Germany, the 'Federal Trojan' was a piece of software that opened backdoors in the computers of crime suspects, to permit clandestine monitoring of their activities (Abel & Schafer, 2009). Even more controversially, the recent attack on Iran's computer infrastructure for the nuclear industry was very likely the result of actions by a 'friendly' state power (friendly, that is, to the US and UK as main sponsors of TC) using a similar, Trojan-based approach (Falliere, Murchu, & Chien, 2011). ...
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This paper argues that commercial service providers and software vendors enjoy the biggest commercial benefits of the internet and therefore giving them the onus to create a secure internet seems an equitable suggestion, keenly taken on by some governments. Trusted Computing (TC) can be seen as a first response to this insight where software companies take on the responsibility for the internet infrastructure. The question remains whether the focus on cybercrime is potentially misleading, with some of the most serious legal issues for the new technology arising in the field of cyberterrorism and cyberwarfare where ‘too secure’ structures can hinder the efforts of the very same governments that otherwise promote online security. Anomalies and problems like these are expressions of a more fundamental paradigmatic shift of power and responsibility away from governments to the private sector, a shift that needs a much more fundamental adjustment of legal rules and regulations than commonly anticipated.
The process of finding evidence is the first stage of preparation for litigations. As analyzed in previous chapters, the category of electronic evidence is numerous and diverse due to the continuous development of new information technology. Moreover, electronic evidence is easy to be changed, deleted, falsified or manipulated. Therefore, the process of finding electronic evidence is more complex and needs to be paid more attention than the process of finding traditional evidence. Although the process of finding electronic evidence relates more to technical issues, it is still important to carve out with the legal view to ensure the legitimacy of the whole process. This chapter starts by explaining briefly the process of finding electronic evidence in civil and commercial dispute resolution, then the following sections of this chapter shall examine the process of finding electronic evidence from significant electronic sources. Although the process of finding electronic evidence must follow the law, the investigator may obtain electronic evidence illegally which raised several questions about its legality. The following section identifies the notion of illegally obtained electronic evidence and the relationship between the need of the involved parties to prove their arguments and the legal boundaries of finding electronic evidence. One of the major challenges to the process of finding electronic evidence is balancing the effectiveness of finding electronic evidence and the respect for personal privacy protection and data protection, which is discussed in the last section of this chapter.
Criminal proceedings need continuous updating due to the historical and sociological context in which they operate. The technological innovations impacting in all fields has led legal practitioners to question also its impact on the criminal justice.In recent decades, technological devices have become not only means for committing offences, but also an efficient tool for the crime investigation, allowing to obtain investigative results faster and with less effort.The use of a malware to carry out interception of communications provide access to information of great value for the prosecution, but they also increase the risk of breaching the fundamental rights of the persons subjected to such measures, in particular, the right to secrecy of communications which represents a serious encroachment in the right to privacy.Rethinking the traditional rules becomes necessary, also from the point of view of protected legal values, in order to control the adequacy of the current legal framework, both in Italy as well as in the other European countries.
In the last decades, the use of technological tools for investigative purpose has considerably increased, due to the digitalisation of daily activities in any field of private and social life. Search and seizure of digital evidence stand out among the most used means of investigation, being able to find and collect communicative as well as non-communicative data from an electronic device in a short period of time. Since modern technologies allow people to be permanently in contact, recourse to such measures entails significative implications on fundamental rights, affecting the individuals against whom the investigation is addressed as well as third parties.Online searches, in particular, can severely interfere with the right to privacy, affecting the most intimate sphere of a person’s life. Like traditional searches, moreover, online searches are aimed at seizing information stored in the targeted device. But the data collection, which is generally carried out through a bit-by-bit copy, entails the need to strike a balance between privacy and the aims of the criminal investigation.The present study will try to point out the worrisome lack of an adequate legal basis of the measures of digital search and seizure, from different viewpoints: first, the domestic law level; next, at the European level, both EU law and ECtHR case law; and finally, from a comparative law perspective, with particular regard to the United States.
In 2016, Germany's government presented its third cybersecurity strategy, which aims to strengthen the national cyber defence architecture, cooperation between the state and industry, and individual users’ agency. For many years, Germany has followed/adopted a preventive and engineering approach to cybersecurity, which emphasizes technological control of security threats in cyberspace over political, diplomatic and military approaches. Accordingly, the technically oriented Federal Office for Information Security (BSI) has played a leading role in Germany’s national cybersecurity architecture. Only in 2016 did the military expand and reorganize its cyber defence capabilities. Moreover, cybersecurity is inextricably linked to data protection, which is particularly emphasised in Germany and has gained high public attention since Edward Snowden’s revelations. On the basis of official documents and their insights from many years of experience in cybersecurity policy, the two authors describe cyber security in Germany in the light of these German peculiarities. They explain the public perception of cybersecurity, its strong link with data protection in Germany, the evolution of Germany's cybersecurity strategies, and the current organisation of cybersecurity across the government and industry. The Brief takes stock of past developments and works out the present and future gaps and priorities in Germany’s cybersecurity policy and strategy, which will be decisive for Germany’s political role in Europe and beyond. This includes the cybersecurity priorities formulated by the current German government which took office in the spring of 2018.
This chapter reviews fundamental U.S. constitutional law in relation to privacy; the various United States federal privacy laws in relation to government surveillance of online communications by private citizens; cases related to these issues, recent amendments and proposed amendments to U.S. law; comparisons to law in other countries. It concludes that this particular area of law, at least in the United States, United Kingdom, India, Australia, and Canada, which continues to be hotly debated, has no resolution in sight, and the difficult problem of balancing national security and privacy while maintaining constitutional protections in democracies is still a problem in search of a solution.
In a statement the Council of the European Union has recommended that member states should introduce clandestine remote searches of computers as a standard investigation method to combat cybercrime. At present, there is little analysis of the consequences such a development will have in the UK. The use of remote forensic software tools by law enforcement agencies has been, however, controversially discussed elsewhere and most notably in Germany where the Federal Constitutional Court had the opportunity to analyse the issue. This paper describes the use of this investigation method in Germany and analyses the reaction of the German and some other legal systems to give a first indication of the likely issues that its use in the UK will raise.
for a more in-depth analysis of the problems surrounding the remote searching of computers
  • Problema
Problema, 51-84, for a more in-depth analysis of the problems surrounding the remote searching of computers.
Council Conclusions on a Concerted Work Strategy and Practical Measures Against Cybercrime", 2987 th Justice and Home Affairs Council meeting
57 Council of the European Union, "Council Conclusions on a Concerted Work Strategy and Practical Measures Against Cybercrime", 2987 th Justice and Home Affairs Council meeting, 27-28 November 2008, at _conclusions_Cybercrime_EN.pdf.