On 31 January 2007 (file number StB 18/06) the German Federal Supreme Court (the “Bundesgerichtshof”, in short the “BGH”) ruled that the secret online search of suspects’ computers is illegal, since current law does not provide a legal basis for such prosecution measure.
The Court had to decide whether the investigating judge was right in rejecting the General Federal Prosecutor’s application for a search warrant concerning data stored on a suspect’s personal computer. The search was intended to be performed by software, working like a Trojan. The software was supposed to be secretly installed and remotely operated on the respective computer (so-called “secret online search”) where it should copy and transmit personal files to the investigating authorities for further examination. Rejecting the General Federal Prosecutor’s appeal, the BGH upheld the ruling on the basis that neither the regulations for performing a search on suspects nor the rules concerning secret investigation methods could justify such a measure.
Contrary to the arguments put forward beforehand by commentators, the BGH decision was not based on the fact that files stored on a personal computer are subject to a particularly high level of protection. It was not crucial for the decision that the examination of a high number of personal files has the potential to severely interfere with the suspect’s constitutional privacy rights. In this regard, the BGH held that a secret online-search is no different to the examination of electronic data carriers obtained during a regular search, which has been repeatedly held to be lawful by the courts.
Instead, the BGH focused on the fact, that a (physical) search of premises performed in accordance with the Criminal Procedure Act (Strafprozeßordnung) is a measure of investigation that has to be performed openly. Secret searches, on the other hand, are deemed illegal. This can be inferred from the provisions of the Criminal Procedure Act stating that searches must only be conducted in the presence of the suspect, his/her representative, or witnesses, and that the suspect gets to know the reason for the search immediately. Based on this information, suspects can take legal action in order to appeal against the search or prepare for coming proceedings. Since these regulations and the implied rights for suspects are essential formalities in favour of the suspected person they are absolutely binding. As such, they leave no room for deviations and accordingly cannot serve as a basis for a secret online search of computers.
The ruling provoked the prosecuting authorities to address a request to the legislator to introduce a corresponding legal basis for online searches, quickly referred to as “Federal Trojans” by the public. Despite clear criticism from the data protection community there are signals that such a corresponding law may be passed. This, however, does not change the fact that such secret access to computers by authorities is not legal at present.