Federal Constitutional Court: Collecting data to combat terrorism? Karlsruhe judges

The Federal Constitutional Court wants to decide on Tuesday whether individual powers of the Federal Criminal Police Office (BKA) violate the fundamental rights of those affected. The Society for Freedom Rights (GFF) had filed a constitutional complaint with the highest judges in Karlsruhe against several provisions of the Federal Criminal Police Office Act, which was last reformed in 2017 (ref. 1 BvR 1160/19).

Specifically, the GFF criticizes regulations that authorize the BKA to secretly monitor contact persons of suspects. They also complain that sensitive personal data could be stored extensively because of vague clues or mere assumptions and used without any further objective or time limits.

The non-profit association sees this as violating the fundamental right to informational self-determination – and is calling for concrete constitutional standards for the collection and storage of data. “The current storage and use of personal data by the BKA applies inconsistent standards and does not adequately protect against the risks of police data collection,” explains the GFF on its website.

Tension between security and freedom

The BKA is the central office of the German criminal police and as such is subordinate to the Federal Ministry of the Interior. Interior Minister Nancy Faeser defended the BKA law as constitutional in the oral hearing last December. As part of police work, data must be able to be linked, said the SPD politician. The law provides numerous checking mechanisms so that data is not stored without cause and is robust against misuse.

The President of the Federal Constitutional Court and Chairman of the First Senate, Stephan Harbarth, emphasized in the hearing that it was about the tension between the state’s security mandate and the protection of individual freedoms.

The court already criticized parts of the law in 2016

It is not the first time that the Federal Constitutional Court has dealt with the BKA law. The court had already ruled on the extensive powers of the security authority in 2016 – and declared some of them unconstitutional. At the time, the Senate acknowledged the importance of the fight against terrorism for democracy and fundamental rights, but 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. According to the GFF, it is now a question of a “gap in constitutional law that has not yet been illuminated”. The association is optimistic about the outstanding judgment “in view of the hearing and the critical questions from the court”.