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A new basic right for digital privacy is born

A landmark ruling by the Federal Constitutional Court about the constitutionality of secret online searches of computers is putting some pressure on Germany's lawmakers:

The decision constitutes a new "basic right to the confidentiality and integrity of information-technological systems" as derived from the German Constitution.

While German legislators followed suit in the general lawmaking frenzy of the so-called War on Terror, the German judicial system has proven political independence and farsightedness by restricting most of the recently introduced surveillance laws. One of them is about the notorious Bundestrojaner, the "Federal Trojan" Spyware:

The law gave security officials the authority to spy remotely on suspected criminals by sending a computer virus that would read data from a suspect's hard drive. The law permitted not just access to the hard disk but also ongoing surveillance of data, such as e-mail, as well as remote tracking of keyboard entries or online phone calls. This activity, the court said, violated a person's right to privacy. But the decision allowed for exceptions: in cases of "paramount importance" — that is, in cases of life or death, or a threat to the state — authorities would be permitted to use such software, with a court's permission.

Another law required German telecoms to implement sweeping data retention policies of the entire population. The Constitutional Court has reduced its impact however by putting tight restrictions on how retained data may be used.

Although the Federal Constitutional Court did not for now suspend the blanket collection of telecommunications data itself, the [non-governmental] Working Group [on Data Retention] remains optimistic. “This is but a preliminary ruling. The Constitutional Court is traditionally reserved with regard to preliminary rulings. We remain confident that in cooperation with over 30.000 other applicants, we will be able to stop the surveillance of telecommunications in the absence of reasonable suspicion”, declares Werner Hülsmann, member of the Working Group [on Data Retention]. In the meantime, the Working Group gives recommendations on its homepage on how to circumvent data retention. "The decision of the Federal Constitutional Court is a success that was also achieved by thousands of people who resisted their wanton surveillance on the streets, in letters to politicians and with their constitutional complaints."

The ruling happens to apply article 12 of the UN's Universal Declaration of Human Rights to the electronic domain.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

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—— Benedikt Brenner