The German Constitutional Court, ruling on the constitutionality of secret online searches of computers by government agencies, has created a new “basic right to the confidentiality and integrity of information-technological systems” as derived from the German Constitution. The AP reports:
The Karlsruhe-based Federal Constitutional Court said in a precedent-setting decision that data stored or exchanged on a personal computer is effectively covered under principles of the constitution that enshrine the right to personal privacy.
“Collecting such data directly encroaches on a citizen’s rights, given that fear of being observed … can prevent unselfconscious personal communication,” presiding judge Hans-Juergen Papier said in his ruling.
This right to computer privacy is not absolute, however, as the court left room for limited government surveillance under strict conditions:
The ruling…also set out the ground rules for a hotly disputed federal law governing secret services’ ability to use virus-like software to monitor suspected terrorists’ online activity.
“Given the gravity of the intrusion, the secret infiltration of an IT system in such a way that use of the system and its data can be searched can only be constitutionally allowed if clear evidence of a concrete threat to a prominent object of legal protection exists,” Papier said.
Ralf Bendrath has excellent commentary and background information. It will be interesting to see if U.S. courts and lawmakers take any lessons from this ruling.