The German Federal Constitutional Court (BVerfG) has ruled that the Bavarian Law on the Protection of the Constitution is in large parts not compatible with the German constitution. This applies, among other issues, to the provisions contained therein on online state searches, the tracking of mobile phone terminals, data transmission and blanket data retention.
The court took the opportunity to issue a comprehensive fundamental ruling on the powers of the German domestic intelligence services. The requirement for separation between the police and the secret services is reinforced. This means that, when it comes to a wide range of issues, the police have priority over the State Office for the Protection of the Constitution. Measures that can lead to the most extensive recording and monitoring of the person data of the target persons are subject to the same proportionality requirements as police monitoring measures. These include online state searches and the tracking of mobile phone end devices. In addition, the Federal Constitutional Court has stated that the requirement of clarity of norms sets limits to the use of statutory chains of references. Unclear chains of reference are not compatible with the requirements of fundamental rights. Last summer, on the initiative of the prior German federal government, all German secret services were granted the power of “online state searches light”.
Klaus Landefeld, Vice-Chair of the eco Board, says: “eco now sees the German federal government in particular, as well as other federal state governments, as being called upon to critically examine the existing and planned regulations at the federal and state levels and to bring them into line with the current constitutional requirements. We welcome the fact that at least the Federal Ministry of Justice and Consumer Protection (BMJV) has already raised the prospect of this.”
