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German Police May Not Break Into a Suspect's PC
hweimer writes to tell us that a ruling in Germany's Supreme Court has made it illegal for the police to secretly hack into a suspect's computer. While some hailed this as a victory for civil rights, Germany's Interior Minister Wolfgang Schauble is expected to push for changes in the legal framework to allow police hacking.
It's secret (police hacking). Just like "real world" searches, computers may not be searched secretly. So far.
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I have no understanding of German Law but (in most countries) wouldn't hacking into secretly someone's computer be the same as an illegal search?
I could be wrong, but as I see it tracking someone's activity online is similar to watching someone in a public space which is (somewhat) reasonable; and it could (hypothetically) be argued that any data being sent via the internet was like yelling across the field. Someone's computer (on the other hand) is private property and they have the right to believe that it is a private space (much like your house).
The court looked at various precedents and noticed that what the police were doing was *not* really like any of them, and so needed separate legal authorization and separate thinking-through.
Germany has stricter privacy laws, more passionately enforced, than the UK/US, but this decision is completely compatible with UK/US law that says the scope of a search has to be explicitly defined and minimal. Spyware on a computer fits neither criterion.
That's exactly the reasoning of the Supreme Court's decision. The chapter 102 of the Criminal Court Proceedings (102 StPO) was very clear that for any search the suspect or at least an eyewitness has to be present, and exactly that was the provision of secret spying missing.
So the court likened this to wiretapping the phone or using secret microphones to listen to conversations in the suspect's home ("Großer Lauschangriff"), which both need a warrant.
> it should be illegal unless/untill the police get a warrant.
Not quite correct. It is also illegal when the police gets a warrant (which they have currently done). The court judged, that hacking into a computer is not covered by the laws of wiretapping (which they are allowed to do secretly with a warrant), but that it is search and seizure. Contrary to wiretapping, search and seizure has to be done in the presence of witnesses of the community (e.g. neighbours). After the search, the suspect has to be delivered a notice about the warrant, a protocol about the search and the confiscated items.
"Between strong and weak, between rich and poor [...], it is freedom which oppresses and the law which sets free"
Yeah, that Schäuble really IS absolutely paranoid. He even called the Internet an "university for terrorists" and wants ANY data transfer to be logged.
Maybe he shouldn't have read 1984...
If THAT guy's actions aren't anti-constitutional, then I don't know WHOSE are!
Even those jerks from the NPD (the "nazis") are more freedom-and-democracy-loving!
The police are allowed to do a whole lot of things that are not allowed by ordinary citizens (i.e.: arrest for misdemeanor crimes, use lethal force to prevent convicts escaping from a penal institution, provide protection for the local courthouse, etc.). If there is a warrant by a court of jurisdiction, then, yes, blocking the "police sniff" would probably be illegal; however, if Citizen Joe knows nothing about this warrant and is simply securing his network, then any offense brought against Citizen Joe about blocking the search warrant will be challenged in the courts.
I don't reply to Anonymous posts; if you have something to say to me, identify yourself or I won't reply.
As a fellow German let me disagree on some points.
bureaucracy: hellish
architecture: does only partially go to the nazis account. Especially in the 70s and in back-then socialist Eastern Germany architecture was very bad - and those architectural crimes had nothing to do with bombings
car craziness: while we are a car crazy bunch over here, traffic death counts are very low compared to other countries (and even on the no-speed-limit Autobahn)
social welfare: yep, pretty fantastic over here. But we pay a heavy toll for it - very high unemployment (and I would argue that even the offical numbers are way too low) and very high taxes.
education: Well I think we're worse than the US and the internatinal PISA-study showed this. This is sad because the public school system in the US seems broken.
human rights: while do not have a Guantanamo I am very sure that given popular vote Germany would bring back the death sentence. Freedom of speech is worse while privacy laws are way better.
Actually, the decision goes further than this: the court decided that a judge cannot issue a search warrant that would allow hacking into a suspects computer. They basically say that since it is a clandestine police operation, it has to follow the much stricter wiretapping rules. According to the German Constitutional Court, this limits wiretapping to crimes that are punishable by at least 5 years of jail. In other words, the police will have a much harder time getting approval for hacking into a suspects computer, than getting a search warrant that lets them go and impound the computer.
I'm an American, but I've been living here in Germany ever since I left the US Army in 1990. Some points I agree with, some seem to be more of a myth, however.
Bureaucracy in Germany is like much of the EU: there are regulations for almost anything. This does, however, have a silver lining as that means less legal battles. The courts aren't as bogged down since there are less "grey areas", so legal insurance is a lot cheaper. Some companies are returning to Germany because of the high cost of legal battles elsewhere.
Architecture is improving in Germany, as the butt-ugly buildings get torn down to make way for more modern structures. I would say that most larger cities now have spent a great deal to make their centres attractive pedestrian zones.
Car craziness in Germany is different than in the USA, but not any worse. The SUV remains an exotic animal, and fuel efficiency is playing a larger role. Move into the cities like Munich, and a car becomes a liability due to the lack of parking and the net of public transportation. That said, the sons of my neighbour spend incredible amounts of time washing and cleaning their cars, caring for them more than for their girlfriends. The elder one actually presses his GF into vacuuming the upholstery with him!
Social Welfare in Germany is still better than elsewhere, but it's also seen as a burden. Germans are born worrywarts, and the low birth rate means that the ratio of retirees to wage-earners is like a Sword of Damocles. The reforms currently being enacted are painful, mainly because for the first time social benefits are being cut, not expanded.
Education in Germany has one huge, huge problem, and that is the way it divides pupils at age 10-12. Starting then, children are stuck into one of the three secondary schools: the Gymnasium for future academics, the Realschule for vocational careers, and the Hauptschule for the rest. As a result, those kids that have the misfortune to only attend a Hauptschule will later have an uphill battle to get a decent job, and it's incredibly difficult to switch paths. The Hauptschule has become the school for "losers".
Human Rights, though, is one area where modern Germans are especially proud. Despite what the occasional beer hall pundit might say, only a tiny minority is really for the death penalty. Germans instead see themselves as better than the "barbarian" American justice system mainly because they don't have a death penalty. Human rights activists have more clout and respect in Germany than in any other country I have lived in.
Privacy was after the Nazi regime a sore point with Germans. That's why this case was so important, as it represented the digital equivalent of a secret search warrant. Germans are also leery of video surveillance, and those measure already installed in train stations and other public places have to follow strict rules. Herr Schäuble's populist clamour for new laws is not even supported by the police, as the current laws still allow for snooping in the internet, just not on the suspect's hard drive without his knowledge.
Well I think we're worse than the US and the internatinal PISA-study showed this.
I don't put much value into that study. Put a bunch of pupils in front of a test and tell them it doesn't get graded. About half of them (low estimate) won't even attempt to get it right and instead brag about the kind of nonsense they produced. I think I was involved in one of these tests back then and I certainly didn't place the source of the Danube in Turkey because I believed in it.
Justice is the sheep getting arrested while an impartial judge declares the vote void.