On 2 March 2006, the German Constitutional Court has ruled that emails and mobile phone text messages that have already been transmitted and are still stored on the recipient's device do not fall under the special constitutional protections for telecommunication privacy. The decision was made after a German judge had her computer seized by law enforcement agencies who suspected her of having given internal information to journalists (which could not be confirmed later). The constitutional court decided that emails and similar messages, but also called numbers and numbers of received calls that are still in the address book of a phone, can be treated like files and other documents that do not fall under the constitutional protection for telecommunications. This means that law enforcement agencies can seize these data even in simple crime cases, whereas telecommunications interception is only possible for the investigations of severe crimes and after approval by a judge.
The constitutional court, in the same decision, also limited the amount of data and electronic information that can be seized. The suspect, according to the decision, is still protected under the right to informational self-determination, which the supreme court had developed from the "human dignity"-clause in the German constitution in its famous 1983 census ruling. This means that the police has to take into account the principle of proportionality. They can no longer take away the whole computer or other equipment and sift through all the data stored on it - a common practice so far. Under the new decision, they now have to search the suspect's equipment on location and are only allowed to copy or print out the data specifically relevant to the actual case.
The reactions to the decision were mixed. While some called it bad for the privacy of communications, others applauded the strengthening of the proportionality principle. This might have an impact on German legal discussions about mandatory data retention. German privacy groups are currently getting organized to prepare a constitutional challenge, and they will certainly point out that the retention of all traffic data of every single citizen is way beyond proportionality. An online-petition against data retention to the German parliament has already reached more than 12 000 signatures, a second one with different arguments has been submitted recently.
Constitutional Court Decision (only in German, 2.03.2006)
http://www.bverfg.de/entscheidungen/rs20060302_2bvr209904.html
Heise News about the decision (only in German, 2.03.2006)
http://www.heise.de/newsticker/meldung/70267
Tagesschau.de - The implications for data retention (only in German,
2.03.2006)
http://www.tagesschau.de/aktuell/meldungen/0,1185,OID5290136_REF1_NAV_...
Online Petition to the German Parliamant against Data Retention (only in
German)
http://itc.napier.ac.uk/e-Petition/bundestag/view_petition.asp?Petitio...
(Contribution by Ralf Bendrath, EDRi member Netzwerk Neue Medien - Germany)