News Display

Week overview

Surreptitious online searches of PCs are illegal

(heise online, 06.02.2007 15:32) According to the Federal Supreme Court the criminal investigation authorities also wanted to carry out surreptitious online searches of PCs with the help of a so-called "Federal Trojan." There are no legal grounds for such an approach, the court found.

Surreptitious online searches of PCs by the police are illegal, the German Federal Supreme Court (BGH) in Karlsruhe (StB 18/06) found on Monday. The covert searching of data stored on the computer of a suspect/accused is a measure not covered by the provisions of the German Code of Criminal Procedure (StPO), the court wrote. The code only provided for overt searches, the court declared. There were no legal provisions capable of empowering the authorities to act in such a manner, the court stated.

As early as November of last year a BGH examining magistrate had declared surreptitious searches of computer hard disks to be illegal. The Federal Public Prosecutor had filed an appeal; the 3rd Criminal Division of the Federal Supreme Court has now however upheld the original decision of the BGH examining magistrate Ulrich Hebenstreit. The judge had already rejected as not applicable the rules covering house searches on the grounds that such searches legally take place in the presence of the person affected, whereas the act of spying out data with the aid of Trojans was by definition a secret affair. Pointing out that data stored on computers can often be of a similar confidential nature to conversations engaged in in the security of one's own home, he compared such measures to a major electronic eavesdropping operation.

The 3rd Criminal Division of the BGH has now also found that given the fact that searches in § 102 of the German Code of Criminal Procedure (StPO) are defined as investigative operations carried out in an open, i.e. overt, manner, it is definitely not possible to legally justify the surreptitious searching of PCs online by invoking this particular paragraph. That this was so followed, the court observed, on the one hand, from "a number of provisions in favor of the suspect/accused pertaining to the right of search" (among which the BGH includes the right to be present and the right to have witnesses present) that are mandatory legal provisions "not at the disposal of the investigating authorities." And on the other "from a comparison of investigative measures that can under certain conditions be legally carried out without the knowledge of the person(s) affected -- such as the surveillance of telecommunications or the surveillance of living quarters --, for which however considerably higher formal and material conditions with regard to both the ordering and the carrying out of the same need to be met."

The Protection of the Constitution Act of the German federal state of North Rhine-Westphalia already includes a recent provision providing for the possibility of online PC searches; however, a complaint of unconstitutionality is currently being prepared against the provision in question. At first the Federal Minister of the Interior Wolfgang Schäuble in his Program to Strengthen the Internal Security of the Federal Republic , which has a price tag of 132 million euros, only hinted at the possibility of a "Federal Trojan." "Federal Trojan" is the unofficial name given to that part of a certain program designed to slip spyware code onto PCs, thereby enabling criminal investigation authorities and the secret services to search these online. Responding to a question by the opposition Green Party the Federal Ministry of the Interior had at the beginning of January declared that for programming the software in question two full-time programming positions were required , which were being paid for in part with money from the regular budget, and in part with funds earmarked for the Program to Strengthen the Internal Security of the Federal Republic. All in all the online PC search tool is said to cost no more than 200,000 euros.

Mr. Schäuble had already announced that if the Federal Supreme Court were to deny, with respect to the law as it stands, the legality of online PC searches, appropriate amendments to legislation would be made. For his part Burkhard Hirsch, the former vice president of the lower chamber of Germany's federal parliament and member of the opposition Free Democratic Party (FDP), has called a surreptitious online search by the police of a person's private computer an act "worse than a major eavesdropping operation." Spying on a private computer via the Internet amounted to a "more brutal form of intrusion" than all earlier methods of criminal investigation, he said in a talk with the weekly German newsmagazine Der Spiegel. "Your PC is akin to an external brain," he added. (Robert W. Smith)