CONSTITUTIONAL COURT SETS HIGH HURDLES FOR ONLINE SEARCHES,

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SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: PTER PGOV KISL KPAO GM
SUBJECT: CONSTITUTIONAL COURT SETS HIGH HURDLES FOR ONLINE SEARCHES,
OVERTURNS RELEVANT STATE LAW

REF: DUESSELDORF 2

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Sensitive but Unclassified - Not for Internet Distribution


1. (SBU) Summary: In a long-awaited landmark February 27
decision, the German Constitutional Court in Karlsruhe declared
unconstitutional parts of a law allowing online searches,
introduced in the state of North Rhine-Westphalia (NRW) in 2006.
The court ruled that such searches interfere in an individual's
personal freedoms under Article 2 of the German constitution and
are therefore admissible only under very stringent conditions.
Both civil libertarians and advocates of a more robust approach
to combating terrorism touted the decision as a victory,
although both camps still have reservations with parts of the
ruling. The decision requires NRW lawmakers to draft
legislation that meets the new legal standards, ending a period
of legal limbo and paving the way for national legislation. End
Summary.

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NRW takes the heat as the first state regulating online searches
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2. (U) The case goes back to constitutional complaints lodged
with the Federal Constitutional Court by five NRW citizens
(among them former Federal Interior Minister Gerhart Baum (FDP))
against a 2006 amendment to a NRW law authorizing the State
Office for the Protection of the Constitution (OPC) to conduct
online searches of hard drives on private PCs and to better
monitor Internet communications of extremists, and in
particular, terrorists. NRW was the first, and thus far only,
state in Germany to develop specific legislation regulating such
searches. Attacks on the state government for its forward
leaning position on this matter, both by the SPD/Greens state
parliament opposition and civil liberties/privacy advocates,
increased after an October 2007 court hearing showed that the
Karlsruhe judges had serious doubts concerning the law's
constitutionality. After that hearing, a primary drafter of the
NRW law told us he expected the Constitutional Court to overturn
it (reftel).

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Court defines "new basic right" and sees NRW regulation as
violating it
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3. (U) In presenting the key elements of the 106-page court
decision, Chief Justice Hans-Juergen Papier stressed that the
court had broken new ground by defining "for the first time a
basic right guaranteeing the privacy and integrity of IT
systems." This new basic right derived from Article 2, para. 1
of the Basic Law (personal freedoms) in connection with its
Article 1, para.1 (human dignity) and may only be restricted or
interfered with under very stringent conditions (see below).
The court ruled that the relevant NRW regulation violated this
basic right and was therefore null and void. In particular, the
clause authorizing the OPC to conduct online searches was too
general and not clearly enough defined; did not fulfill the
requirements of reasonableness; and did not contain sufficient
provisions for protecting the core area of (a person's) privacy,
the court found.

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High hurdles for online searches
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4. (U) According to the court, online searches are only
admissible if:
-- there are actual indications of a concrete threat to an
overridingly important object of legal protection, such as life,
freedom or the existence of the state;
-- there is prior approval of the measure by a judge; and
-- the legislation authorizing online searches contains
provisions protecting the core area of (a person's) privacy.

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Reactions in NRW
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5. (SBU) NRW Interior Minister Ingo Wolf (FDP),who pushed the
forward looking OPC law, called the February 27 court ruling "a
trailblazing" decision and gave assurances that the NRW law
would be redrafted. The opposition called the ruling a "slap in
the face" for Wolf, with the Greens going so far as to call for
his resignation. The leading and most prominent complainant,
Gerhart Baum, the former Federal Interior Minister under
Chancellor Helmut Schmidt, expressed great satisfaction at the
outcome, terming the decision "historic" and a "milestone" in
the development of the protection of basic rights in the

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information age. In a February 28 conversation with CG, FDP
Bundestag Internal Affairs Spokesperson Gisela Piltz called the
ruling a "victory," but added that it still allows law
enforcement authorities access to some personal space that she
would have preferred not to see.

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Comment
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6. (SBU) The Constitutional Court's decision has implications
that go far beyond the NRW regulation of online searches,
providing a far-reaching concept for a new basic right
guaranteeing the privacy and integrity of IT systems, and
clearing the way for federal legislation on online searches.
NRW authorities, who had taken the first stab in Germany at
creating a legal basis for this new area, must now draft new
legislation, and other states can be expected to follow. It is
too early to assess the impact of the ruling for the work and
effectiveness of intelligence and law enforcement agencies in
their struggle against the terrorist threat. One senior
Duesseldorf police officer welcomed it "for finally providing
legal clarity," while another predicted that it would erode law
enforcement agencies' ability to combat extremist targets on
equal terms. The ruling's language referring to the "existence
of a concrete danger" as a prerequisite for searches suggests
that it may be easier for law enforcement agencies than
intelligence services to use online searches as a tool. Perhaps
for this reason, it is interesting to note that Federal Interior
Minister Wolfgang Schaeuble has thus far talked primarily about
amending the BKA (Federal Office of Criminal Investigation) law,
which concerns law enforcement agencies, and not the federal OPC
law. End Comment.


7. (U) This message was coordinated with Embassy Berlin.
BOYSE