German Court Decision Re-ignites Online Surveillance Debate

A decision Monday by the German Federal High Court (BGH) in Karlsruhe renders it illegal in that country –- for now -– for police and intelligence services to use clandestine tools such as Trojan horse routines, or what would normally be categorized as malware, for use in surveillance on federal suspects.

But the high court ruling did not set a legal precedent, which means that it didn’t actually find a new way for existing law to be interpreted to permanently prohibit the use of remote computer exploits for surveillance purposes.

As a result, it may now be up to the German parliament and the country’s Interior Minister - Wolfgang Schäuble, champion of the country’s new ruling, conservative Christian Democratic Union - to create new legal precedent for a new and separate class of police searches where clandestine logging of suspects’ activities is permitted.

Though Monday’s ruling had been interpreted by the American press as a victory for German citizens’ rights, it may end up actually playing right into lawmakers’ plans to enact what the German press (translated into English) is citing as an “upgrade to the code of criminal procedure.” Such an “upgrade,” veteran German political observers believe, may go so far as to require security software firms to overlook certain “whitelisted” Trojan horse routines, and other measures that would normally fall under the category of malware, if they’re used in police or intelligence surveillance.

“For precise tactical reasons, it is essential that the prosecution authorities have the option of being able to conduct an online search,” Minister Schäuble’s office pronounced earlier this week (translated from German), “after appropriate judicial arrangements have been made.”

With Germany taking its turn just last month as the host of the European parliament, the measures Schäuble appears prepared to take could set not only a legal but also a political precedent that resonates throughout the continent, and that could force security services and software companies worldwide to take a dangerous political stand that may have a material impact on their business.

Monday’s BGH ruling upheld a lower court ruling last November that overturned a finding of the Federal Prosecutor’s office in February of last year. That finding declared police searches of suspects’ PCs permissible by classifying them as “house searches.” In other words, since a PC occupies the suspect’s household, the Prosecutor’s finding stated, searching a component of that household over the Internet was virtually no different than searching it in person.

As Netzeitung reported Monday, the prosecutors’ office finding had only been put to use two times, including an apparent investigation of a phishing operation in the US. The group was apparently e-mailing customers worldwide, posing as a major bank and requesting personal information. If the rules governing “house search” had, in fact, applied in this instance as prosecutors contended it did, then quite possibly, investigators might have violated the law anyway by searching a residence that was outside of their jurisdiction.

Instead, however, investigators were let off the hook by the lower court, which sided with opposition lawmakers who believed no legal foundation exists in current German law to support a judge’s warrant for police to conduct online surveillance. In another recent Netzeitung story, Social Democrat member of parliament Dieter Wiefelspütz called the online class of surveillance neither a house search nor a public search, but (translating from German) “a third thing, for which we do not yet have a clear legal basis.”

Indeed, that was the conclusion of the High Court, which ruled that the current code of criminal procedure did not apply to the Internet the way it is currently written. But the BGH’s ruling may not apply, it turns out, to certain states. North Rhine-Westphalia, for instance, has its own constitution where online police surveillance is expressly permitted, and has MPs who are likely to support Schäuble.

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