Federal Constitutional Court: State Trojan in court: If investigators secretly read along

Communication often takes place in digital space today. In law enforcement, encrypted chats or calls via messenger services such as Telegram and WhatsApp present the investigators with new challenges. A reform of the Code of Criminal Procedure should remedy the situation in 2017. But above all the powers contained therein to use spy software-also called State Trojans-cause criticism. The Federal Constitutional Court now wants to announce its decision on a constitutional complaint against the controversial regulations.

Which law is it about?

The Code of Criminal Procedure (StPO) regulates the implementation of criminal proceedings and the powers of the investigative authorities in Germany. In summer 2017, it was reformed by the “Law on the more effective and practical design of the criminal proceedings” by the then grand coalition of the Union and SPD. Even then, the law triggered great protest-mainly because of the possibilities of arranging source telecommunications monitoring and online searches with the help of so-called state trojans.

State Trojan is referred to, which is installed on his computer or smartphone without knowing the suspect. For example, the investigators can then read messages about messenger services such as WhatsApp that are encrypted between devices (source telecommunications monitoring) or even search through all data on the device (online search).

What is source telecommunications monitoring?

With classic telecommunications monitoring (short: TKÜ), the communication of a suspect is recorded, for example, via telephone, email or chat messages. Measuring services such as WhatsApp or Telegram often encrypt the chat messages and calls from their users. In order for investigators to get this data in the law enforcement, communication at the source TKÜ is recorded before it is encrypted or after it has been deciphered. For this purpose, special software is accessed directly to the end device (the “source”).

What is an online search?

The so-called hidden online search goes one step further. Here, too, the responsible law enforcement agency intervenes with technical means in the suspect’s end device and collects data from it. In contrast to the source TKÜ, surveillance is not limited to ongoing communication, but refers to all data on the device.

When can these measures be used?

Certain prerequisites apply to the use of a source-tkü or online search. For example, they require the suspicion of a severe or-in the event of an online search-particularly serious criminal offenses that are listed in the law. These include murder, homicide or falsification of money. In addition, the crime must also weigh heavily or particularly difficult in individual cases and the investigation should be much more difficult or hopeless in other ways. The measures must be ordered by a judge.

The Federal Office of Justice regularly publishes figures on how often TKÜ and online searches are arranged and carried out in practice. As can be seen from a statistics published on Tuesday, there were a total of 104 judicial orders for the Quellen-TKÜ in 2023. In fact, 62. the year before, there were 94 orders, 49 of which were carried out.

According to the statistics, online searches are much less common. In 2023, this measure was ordered only 26 times by a judge and carried out six times. In most cases, it was about the accusation of forming a criminal association.

Why could the powers be unconstitutional?

The Federal Constitutional Court has obtained statements from various associations before its decision – including the German Lawyers’ Association (DAV). It considers the attacked regulations in its current form to be unconstitutional. Especially if the surfing behavior and data transfer to the cloud are also recorded in the source TKÜ, this is a disproportionate interference with the fundamental rights of those affected, says Ricarda Schelzke, a member of the DAV committee. Especially since there are no specifications on how the data collected can be selected.

The online search is also too wide in its current form and the evaluation of the data is not regulated enough. For example, too many crimes are listed that should enable such a search, even though they do not affect the protection of the highest -ranking legal goods such as body, life or freedom, says Schelzke. In addition, there is no effective protection of the core area of private life. It is also particularly problematic that the first court decision about the usability of the data collected is binding for the entire procedure. This is not to be justified under constitutional law.

According to the DigitalCourage association, the announced decision from Karlsruhe is his constitutional complaint initiated in 2018. “Many years have passed since the complaints have been submitted and the use of state trojans have continued to be expanded,” the association said on its website. “After years of waiting, the highest German court finally decides on the legality of the state trojan mission in criminal prosecution, which we criticized as disproportionate and unlawful right from the start.” According to the court, the complainants are lawyers, artists and journalists.

How could the Federal Constitutional Court decide?

It is unclear whether the Supreme German Court today decides on the constitutionality of the controversial powers. Theoretically, it is also possible that the constitutional complaint – for formal reasons – will not be accepted for decision. If, on the other hand, the constitutional complaint is successful, the court could declare the regulations to be void or request improvements by naming a certain period.