Germany: New basic right to privacy of computer systems

The German Constitutional Court published on 27 February 2008 a landmark ruling about the constitutionality of secret online searches of computers by government agencies. The decision constitutes a new "basic right to the confidentiality and integrity of information-technological systems" as derived from the German Constitution.

The journalist and privacy activist Bettina Winsemann, the politician Fabian Brettel (Left Party), the lawyer and former federal minister for the interior Gerhart Baum (Liberal Party), and the lawyers Julius Reiter and Peter Schantz had challenged the constitutionality of a December 2006 amendmend to the law about the domestic intelligence service of the federal state of North-Rhine Westphalia. The amendmend had introduced a right for the intelligence service to "covertly observe and otherwise reconnoitre the Internet, especially the covert participation in its communication devices and the search for these, as well as the clandestine access to information-technological systems among others by technical means" (paragraph 5, number 11). Parts of the challenges also addressed other amendmends which are not covered here.

The decision of today is widely considered a landmark ruling, because it constitutes a new "basic right to the confidentiality and integrity of information-technological systems" as part of the general personality rights in the German constitution. The reasoning goes: "From the relevance of the use of information-technological systems for the expression of personality (Persönlichkeitsentfaltung) and from the dangers for personality that are connected to this use follows a need for protection that is significant for basic rights. The individual is depending upon the state respecting the justifiable expectations for the integrity and confidentiality of such systems with a view to the unrestricted expression of personality." (margin number 181). The decision complements earlier landmark privacy rulings by the Constitutional Court that had introduced the "right to informational self-determination" (1983) and the right to the "absolute protection of the core area of the private conduct of life" (2004).

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