Nobody wants to appear as a suspect in a police database. The legislature has changed the legal requirements for data collection. The constitutional court was now concerned with possible consequences.
The Federal Constitutional Court has taken a closer look at the powers of the security authorities in the fight against terror and organized crime. From the perspective of some, these violate the basic rights of those affected. Court President Stephan Harbarth said it was about the tension between the state’s security mandate and the protection of individual freedoms.
The focus is on options that the legislature grants primarily to the Federal Criminal Police Office (BKA) – for example to collect data and exchange it with police authorities in the federal states as well as to secretly monitor contact persons of suspects. The Society for Freedom Rights (GFF) has filed a constitutional complaint against the BKA law, which was amended in 2017. A ruling from Germany’s highest court is not expected for a few months.
Plaintiff: No conviction, but serious consequences
On behalf of the GFF, lawyer Bijan Moini in Karlsruhe pointed out the possible consequences of an entry in the police databases: those affected would sometimes be publicly stigmatized, missed appointments, police measures would become tougher, and consequences for their jobs were conceivable. People are often not even convicted of the crimes. Moini also said that those who are checked more often end up in databases more often, referring to people with a foreign appearance.
From the perspective of the GFF, a non-profit organization, the rules for storing and using data are too vague and far-reaching. It is a structural problem, said Moini, and not a “misadventure on the part of the legislature.” The plaintiffs are demanding specific constitutional standards for the collection and storage of data. In this respect, the constitutional complaint breaks new ground.
Faeser: Data exchange serves the security of the population
Federal Interior Minister Nancy Faeser, however, defended the law as constitutional. The police authorities must keep pace with developments in order to be able to investigate effectively. “You have to be up to date.” As part of police work, data must be able to be linked, said the SPD politician. “This is the hallmark of good police work.” The BKA law provides for numerous checking mechanisms, including in connection with the Federal Data Protection Act, so that data is not stored without reason, she said. “The law is robust against abuse.”
The senior criminal director Julia Pohlmeier explained that very few clues resulted in a so-called threat prevention process at the BKA. That is “the absolute exception”. She spoke of 28 cases. The primary goal of the authority is to initiate criminal proceedings.
If a process to avert danger is ended, those affected would be informed of the measures taken and the data would be deleted immediately – unless this was not possible. This applies to cases in which criminal proceedings are ultimately ongoing and a court may review the data. Sometimes those affected cannot be informed about the measures because trusted people are involved. The BKA action guide for deletion concepts alone is eleven pages long.
The Federal Data Protection Commissioner Ulrich Kelber, whose authority advises and also reviews the BKA, attested that the Federal Criminal Police Office had a “positive understanding of data protection”. Nevertheless, there are problems of interpretation and legal uncertainty. He made it clear that the issue involved millions of data. Ascending trend.
According to him, there is no maximum storage period. Depending on the crime, data would actually be stored for between six weeks and twelve months. However, if there are so-called cross hits, for example if a telephone number appears in two data sets, this can be extended, explained Kelber. That is often the case.
Lessons from the NSU murders
According to Minister Faeser, the exchange of data between the police authorities is, in particular, a lesson learned from the case involving the right-wing terrorist group “National Socialist Underground” (NSU). “This is to protect the safety of the public,” she said. The authorities need the opportunity to exchange data so that terrorists cannot carry out acts undetected for years, as was the case back then.
Before the hearing, Faeser spoke to journalists about the current world situation, the danger of Islamist terrorist attacks in Germany and the war in Europe. Germany often relies on foreign services, she said. The necessary measures are therefore needed in this country “so that we can improve there”. It’s about prevention in the fight against terrorists and organized crime. “It doesn’t stop at borders.”
The Senate has already objected to parts of the law
It is not the first time that Germany’s highest court has dealt with the issue. In 2016, it imposed new barriers on the security authorities in the fight against terrorism and declared some of the BKA’s extensive powers to counter terrorism unconstitutional. The First Senate found “disproportionate interference in a number of individual provisions”.
In order to prevent terrorist attacks, the BKA has been allowed, among other things, to bug apartments and spy on them with cameras since 2009. The state is also allowed to use Trojans, i.e. specially developed software that skims data from a suspect’s computer hard drive.
According to the ruling at the time, all of this is in principle compatible with fundamental rights. This recognizes the importance of the fight against terrorism for democracy and fundamental rights. However, the court assessed the specific design of the powers as inadequate in various respects. Above all, the core area of private life is sometimes not sufficiently protected.
The BKA law therefore had to be improved. The new version has been in force since May 2018. The GFF is now concerned with a “gap in constitutional law that has not yet been illuminated,” as it explained when presenting the constitutional complaint.