VZCZCXRO3889
RR RUEHAG RUEHAST RUEHDA RUEHFL RUEHIK RUEHKW RUEHLA RUEHLN RUEHLZ
RUEHPOD RUEHROV RUEHSR RUEHVK RUEHYG
DE RUEHDF #0002/01 0031239
ZNR UUUUU ZZH
R 031239Z JAN 08
FM AMCONSUL DUSSELDORF
TO RUEHC/SECSTATE WASHDC 0106
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUCNFRG/FRG COLLECTIVE
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC
RUEFHLC/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUEHDF/AMCONSUL DUSSELDORF 0122

UNCLAS SECTION 01 OF 02 DUSSELDORF 000002 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PTER PGOV KISL KPAO GM
SUBJECT: ONLINE SEARCHES: CONSTITUTIONAL COURT LIKELY TO OVERTURN KEY 
NRW LAW 
 
REF: A. A) 07 DUSSELDORF 0037 
 
     ¶B. B) BERLIN 1398 
 
DUSSELDORF 00000002  001.2 OF 002 
 
 
Sensitive but Unclassified -- Not for Internet Distribution 
 
¶1.  (SBU) Summary: Well informed sources in North-Rhine 
Westphalia (NRW) expect the Federal Constitutional Court in 
Karlsruhe in early 2008 to overturn path-breaking amendments to 
NRW legislation allowing online searches in terrorism and other 
cases.  The online language, which amended an earlier statute 
governing activities the Office of the Protection of the 
Constitution (OPC) is permitted to undertake, has not been 
applied while the case was under review, although it went into 
effect on December 30, 2006.  A primary drafter of the law and a 
lead complainant told us recently that they expect the Court to 
declare the amendment unconstitutional, but not to prohibit 
online searches per se.  Although national law enforcement 
authorities have stepped up their calls for a speedy resolution 
of this issue, calling it imperative that they have access to 
this tool to combat terrorism, a Karlsruhe rejection of the NRW 
legislation would be a further setback for Federal Interior 
Minister Wolfgang Schaeuble (CDU), whose own draft proposal to 
enable online investigations at a national level has been 
stalled due to resistance from both opposition parties and the 
SPD coalition partners.  End Summary. 
 
NRW Regulation of Online Searches on Shaky Ground 
--------------------------------------------- ---- 
 
¶2.  (SBU)  In a recent meeting with CG and Pol/EconOff, Hartwig 
Moeller, the President of NRW's OPC and one of the primary 
drafters of the OPC law amendment, outlined some of the 
challenges facing the case, observing "In retrospect, we should 
have been more precise in our wording of the law."  For example, 
Moeller said the NRW law targets Internet communication only and 
(unlike Schaeuble's proposal) does not include the search of 
hard drives.  Former Federal Minister of the Interior Gerhart 
Baum (FDP), a lead complainant in the case (ref A), told 
Pol/EconOff, "If the intention of the law was to distinguish 
between the two, then the law should have reflected this.  As it 
is written, it does not."  Former Federal Justice Minister and 
FDP Bundestag member Sabine Leutheusser-Schnarrenberger took a 
slightly different tack, telling the press recently that however 
"dangerous" Schaeuble may be "for the rule of law in Germany" 
... "online searches (in some form) will come." 
 
¶3.  (SBU) Moeller explained that other issues have further 
complicated the case.  After the case went to court, he learned 
of a personal and ideological rivalry between NRW chief counsel 
Professor Dirk Heckmann and the Constitutional Court's Judge 
Wolfgang Hoffmann-Riem, who might use his position to rule 
against his adversary, and thus against the NRW law.  In 
addition, the SPD has stepped back from supporting the measure, 
which it drafted while it was still governing NRW, for domestic 
political reasons.  Finally, developments in telecommunications 
technology and Islamist behavior using the Internet have raised 
subsequent questions about parts of the NRW law, Moeller stated. 
 
 
Court's Opinion: A Possible Roadmap for Future Legislation 
--------------------------------------------- ------------- 
 
¶4.  (SBU) Both Moeller and Baum expect the Constitutional Court 
to overturn the law, as written.  Moeller was pessimistic, 
predicting that major parts of the media and political 
opposition will gleefully call the ruling on NRW's attempts to 
forge new ground in this major new legal area a "legal slap in 
the face."  At best, he hoped the opinion would set forth 
crystal clear guidelines that will allow parliaments to pass new 
legislation and allow law enforcement agencies to get to work. 
He expressed concern, however, that the ruling may impose too 
stringent guidelines to enable OPC personnel to use online 
searches effectively.  Baum did not oppose searches of Internet 
communications in general but opposes online searches of hard 
drives on private PCs, calling them "invasions of privacy." 
 
Comment 
------- 
 
¶5.  (SBU) The Federal Constitutional Court decision on the NRW 
regulation of online searches expected in early 2008 will have 
far reaching implications for the work of German law enforcement 
agencies and intelligence services at all levels.  As the first 
(and thus far only) German state to regulate online searches by 
amending state law, NRW has been a trailblazer for this issue 
nationally.  In recent end-of-year statements, national law 
enforcement authorities including both the OPC and BKA 
Presidents called for a speedy resolution of this issue, terming 
it imperative to clarify the rules governing this critical 
anti-terrorism tool.  However, if the court rules as our 
 
DUSSELDORF 00000002  002.2 OF 002 
 
 
interlocutors predict, it will send legislative efforts back to 
the drawing board and further delay use by law enforcement 
authorities of an important anti-terrorism tool.  The ruling is 
also likely to adversely affect the plans of Federal Interior 
Minister Schaeuble, who seeks national legislation to extend 
online searches beyond the monitoring of Internet communications 
to hard drives and to authorize more agencies, such as the BKA, 
to use these means.  End Comment. 
 
¶6.  (U) This message was coordinated with Embassy Berlin. 
BOYSE