German Federal Court of Justice bans state hacker attacks on computers

The German Federal Court of Justice — the highest appelate court in the country for civil and criminal cases — yesterday banned the online search of home and business computers of suspects by state agencies through specialised computer programs such as trojans, spyware, or specially programmed computer viruses.

The case before the Court concerned Germany's Federal Prosecutor who is investigating a terrorist suspect and had applied for permission to smuggle a specially designed program onto the suspects PC or laptop. The program would then search the computer and copy data to the prosecturing authorities. The Court ruled that such a procedure would substantially infringe a person's fundamental rights and had no basis in law. The thrust of the Court's decision is against the covert character of the search: while it can be unannounced, it cannot be secret. (The decision — in German, of course — is available online.)

The decision has triggered an intense political row. Germany's Interior Minister, Wolfgang Schäuble (CDU), immediately announced that he would table a bill that would create a legal basis for such covert online searches. In his view, such an instrument is indispensable in the fight against global terrorism that is using online media, and the head of Germany's Federal Criminal Police Office agrees, arguing that "99.9 per cent of the population in Germany would not be affected by this".

Schäuble's colleague, the Justice Minister Brigitte Zypries (SPD) was more cautious, calling for a measured approach in line with constitutional requirements. Since computers were used for many private things that authorities would then have access to, too, privacy rights might be violated substantially.

The opposition parties Greens and Left Party welcomed the Court's decision, while the Liberals stance was ambiguous: on the federal level (where they are in opposition), politicians like Jörg van Essen embraced the decision, stating that the Court had strengthened citizens' rights. Yet the state of North-Rhine Westfalia passed a bill only in December 2006 that allows covert online searches of computers. The minister in charge there is Ingo Wolf (FDP) who argued that this represents a "quantum leap".

If this is pursued further by politicians, it will be an interesting case to follow. The fight against terrorism has been used in the past couple of years in Germany to bring in substantial new powers for state agencies and prosecutors and curtail civil rights. Under the Schröder government, the Social Democrats were the driving force (with largely tacit acceptance by their small coalition partner The Greens), while the CDU's opposition waned and FDP opposition to infringement on civil rights grew. Now, the two parties which favour a "strong state" approach in law enforcement, the CDU and the SPD, are united in a Grand Coalition.

If you had to bet money, which do you think will succeed?

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