German High Court Bans Searching Computers for Online Material Accessed

Germany's highest court today struck down a law authorizing searches of personal computers to see what users had accessed online.

The law authorized the state of North Rhine-Westphalia's intelligence agency to access personal computers, networks and Internet communications. Online searches could comprise access to hard drives, monitoring what a user is typing on a keyboard and listening in to telephone conversations via the Internet.

.... The Karlsruhe-based Federal Constitutional Court said that the law ``violates the right to liberty which also guarantees the constitutional protection of the integrity and confidentiality of information technology systems,'' according to an e-mailed statement.


Online searches and Internet monitoring are only permissible if there is concrete evidence that a compelling interest is in danger, such as life and limb, liberty or common goods essential for human existence, the judges said. A court must authorize the use of such measures in each individual case, they added.

Excellent ruling. [hat tip to reader Scribe.]

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    What needs be recognized is (5.00 / 2) (#2)
    by scribe on Wed Feb 27, 2008 at 12:41:01 PM EST
    just how huge a decision this is.  

    It needs be recognized that, in the words of the FAZ (Frankfurter Allegemeine Zeitung - the leading paper in Frankfurt and sort of similar to the WSJ for us) this decision was awaited by the average person, with some trepidation, like no decision before it.

    In other words - this was viewed by the average person as vitally important.

    This decision is absolutely huge - make no mistake about it.  And people need to get some clarity in their vision so they can understand it.  

    The papers also make clear that the judges made (and had to make, in coming to this decision) a fundamental choice between personal rights and privacy on the one hand, and "security" on the other.  They chose personal rights and privacy.

    I've also been looking at a paper from Leipzig, in the old East Germany, and they note that in coming to its decision, the judges had to construe Article I, section 2 in conjunction with Article I, section 1 of the German Constitution.  As I understand them, these deal with fundamental rights.

    In another article, a leading data-protection (conpmuter security) consultant opined that this was a huge success for citizens, and that the Court went further than anyone expected in protecting individual rights.  Moreover, it appears (and I'll defer to people more expert than I) that the judicially-issued and supervised warrant requirement, under German law, is much more stringent than the requirements under US law for warrants.  

    People are entitled to intellectual searching and self-expression, no matter what.  This decision protects that.

    And, as I noted in my post on this topic in the open thread below, the commentator rightly observed that now, privacy in the computer is as protected as privacy in the bedroom.

    I wish someone would take up that line, in the NSA/FISA fight.  Something like "your computer privacy is as sacred as your bedroom privacy" or something similar (I'm not a copy-writer).

    Because that's what it's about.

    Moreover, the judgment appears to extend not only to the personal computer in the house, but also to anything else that is internet capable - phones, PDAs, whatever.  

    The German coalition government is "unified" in going forward to try to find a way around this so they can keep on spying - they will be working on statutory means to try to circumvent it.  So this is not over, by a long shot.  

    But, it's a big step forward.

    Grundgesetz (none / 0) (#5)
    by Nasarius on Wed Feb 27, 2008 at 03:32:50 PM EST
    I tried reading the German constitution once, but I couldn't even get through the English translation. Makes me appreciate the brevity of the US constitution, the substance of which I was able to nearly memorize when I was in middle school.

    Thanks for the comments and links. For people who can't read German but are interested, Deutsche Welle and Der Spiegel generally do a good job of providing English-language news.


    Oh, good. A well-deserved (none / 0) (#1)
    by oculus on Wed Feb 27, 2008 at 12:05:32 PM EST
    h/t to Scribe.  Good job.

    Thanks! (5.00 / 1) (#3)
    by scribe on Wed Feb 27, 2008 at 12:42:33 PM EST
    Now if only people who read my stuff would give me some ratings love, it'd be downright tingly twitchy happy-making fun to send this kind of stuff along.

    Not that reporting on this decision isn't great, but you get my drift.


    I'm quite impressed with your (none / 0) (#4)
    by oculus on Wed Feb 27, 2008 at 01:14:14 PM EST
    German to English translating abilities, as you know.  Between your and Stellaaa, we get a pretty good campaign from across the pond overview.