ONLINE SEARCHES: CONSTITUTIONAL COURT LIKELY TO OVERTURN KEY

UNCLAS SECTION 01 OF 02 DUSSELDORF 000002

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: PTER PGOV KISL KPAO GM
SUBJECT: ONLINE SEARCHES: CONSTITUTIONAL COURT LIKELY TO OVERTURN KEY
NRW LAW

REF: A. A) 07 DUSSELDORF 0037


B. B) BERLIN 1398

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Sensitive but Unclassified -- Not for Internet Distribution


1. (SBU) Summary: Well informed sources in North-Rhine
Westphalia (NRW) expect the Federal Constitutional Court in
Karlsruhe in early 2008 to overturn path-breaking amendments to
NRW legislation allowing online searches in terrorism and other
cases. The online language, which amended an earlier statute
governing activities the Office of the Protection of the
Constitution (OPC) is permitted to undertake, has not been
applied while the case was under review, although it went into
effect on December 30, 2006. A primary drafter of the law and a
lead complainant told us recently that they expect the Court to
declare the amendment unconstitutional, but not to prohibit
online searches per se. Although national law enforcement
authorities have stepped up their calls for a speedy resolution
of this issue, calling it imperative that they have access to
this tool to combat terrorism, a Karlsruhe rejection of the NRW
legislation would be a further setback for Federal Interior
Minister Wolfgang Schaeuble (CDU),whose own draft proposal to
enable online investigations at a national level has been
stalled due to resistance from both opposition parties and the
SPD coalition partners. End Summary.

NRW Regulation of Online Searches on Shaky Ground
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2. (SBU) In a recent meeting with CG and Pol/EconOff, Hartwig
Moeller, the President of NRW's OPC and one of the primary
drafters of the OPC law amendment, outlined some of the
challenges facing the case, observing "In retrospect, we should
have been more precise in our wording of the law." For example,
Moeller said the NRW law targets Internet communication only and
(unlike Schaeuble's proposal) does not include the search of
hard drives. Former Federal Minister of the Interior Gerhart
Baum (FDP),a lead complainant in the case (ref A),told
Pol/EconOff, "If the intention of the law was to distinguish
between the two, then the law should have reflected this. As it
is written, it does not." Former Federal Justice Minister and
FDP Bundestag member Sabine Leutheusser-Schnarrenberger took a
slightly different tack, telling the press recently that however
"dangerous" Schaeuble may be "for the rule of law in Germany"
... "online searches (in some form) will come."


3. (SBU) Moeller explained that other issues have further
complicated the case. After the case went to court, he learned
of a personal and ideological rivalry between NRW chief counsel
Professor Dirk Heckmann and the Constitutional Court's Judge
Wolfgang Hoffmann-Riem, who might use his position to rule
against his adversary, and thus against the NRW law. In
addition, the SPD has stepped back from supporting the measure,
which it drafted while it was still governing NRW, for domestic
political reasons. Finally, developments in telecommunications
technology and Islamist behavior using the Internet have raised
subsequent questions about parts of the NRW law, Moeller stated.


Court's Opinion: A Possible Roadmap for Future Legislation
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4. (SBU) Both Moeller and Baum expect the Constitutional Court
to overturn the law, as written. Moeller was pessimistic,
predicting that major parts of the media and political
opposition will gleefully call the ruling on NRW's attempts to
forge new ground in this major new legal area a "legal slap in
the face." At best, he hoped the opinion would set forth
crystal clear guidelines that will allow parliaments to pass new
legislation and allow law enforcement agencies to get to work.
He expressed concern, however, that the ruling may impose too
stringent guidelines to enable OPC personnel to use online
searches effectively. Baum did not oppose searches of Internet
communications in general but opposes online searches of hard
drives on private PCs, calling them "invasions of privacy."

Comment
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5. (SBU) The Federal Constitutional Court decision on the NRW
regulation of online searches expected in early 2008 will have
far reaching implications for the work of German law enforcement
agencies and intelligence services at all levels. As the first
(and thus far only) German state to regulate online searches by
amending state law, NRW has been a trailblazer for this issue
nationally. In recent end-of-year statements, national law
enforcement authorities including both the OPC and BKA
Presidents called for a speedy resolution of this issue, terming
it imperative to clarify the rules governing this critical
anti-terrorism tool. However, if the court rules as our

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interlocutors predict, it will send legislative efforts back to
the drawing board and further delay use by law enforcement
authorities of an important anti-terrorism tool. The ruling is
also likely to adversely affect the plans of Federal Interior
Minister Schaeuble, who seeks national legislation to extend
online searches beyond the monitoring of Internet communications
to hard drives and to authorize more agencies, such as the BKA,
to use these means. End Comment.


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