VZCZCXRO1585
RR RUEHAG RUEHAST RUEHDA RUEHFL RUEHIK RUEHKW RUEHLA RUEHLN RUEHLZ
RUEHPOD RUEHROV RUEHSR RUEHVK RUEHYG
DE RUEHDF #0011/01 0601632
ZNR UUUUU ZZH
R 291632Z FEB 08
FM AMCONSUL DUSSELDORF
TO RUEHC/SECSTATE WASHDC 0119
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUCNFRG/FRG COLLECTIVE
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC
RUEFHLC/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUEAIIA/CIA WASHDC
RUEHDF/AMCONSUL DUSSELDORF 0135

UNCLAS SECTION 01 OF 02 DUSSELDORF 000011 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PTER PGOV KISL KPAO GM
SUBJECT: CONSTITUTIONAL COURT SETS HIGH HURDLES FOR ONLINE SEARCHES, 
OVERTURNS RELEVANT STATE LAW 
 
REF: DUESSELDORF  2 
 
DUSSELDORF 00000011  001.2 OF 002 
 
 
Sensitive but Unclassified - Not for Internet Distribution 
 
¶1.  (SBU) Summary: In a long-awaited landmark February 27 
decision, the German Constitutional Court in Karlsruhe declared 
unconstitutional parts of a law allowing online searches, 
introduced in the state of North Rhine-Westphalia (NRW) in 2006. 
 The court ruled that such searches interfere in an individual's 
personal freedoms under Article 2 of the German constitution and 
are therefore admissible only under very stringent conditions. 
Both civil libertarians and advocates of a more robust approach 
to combating terrorism touted the decision as a victory, 
although both camps still have reservations with parts of the 
ruling.  The decision requires NRW lawmakers to draft 
legislation that meets the new legal standards, ending a period 
of legal limbo and paving the way for national legislation.  End 
Summary. 
 
--------------------------------------------- ------- 
NRW takes the heat as the first state regulating online searches 
--------------------------------------------- ------- 
 
¶2.  (U) The case goes back to constitutional complaints lodged 
with the Federal Constitutional Court by five NRW citizens 
(among them former Federal Interior Minister Gerhart Baum (FDP)) 
against a 2006 amendment to a NRW law authorizing the State 
Office for the Protection of the Constitution (OPC) to conduct 
online searches of hard drives on private PCs and to better 
monitor Internet communications of extremists, and in 
particular, terrorists.  NRW was the first, and thus far only, 
state in Germany to develop specific legislation regulating such 
searches.  Attacks on the state government for its forward 
leaning position on this matter, both by the SPD/Greens state 
parliament opposition and civil liberties/privacy advocates, 
increased after an October 2007 court hearing showed that the 
Karlsruhe judges had serious doubts concerning the law's 
constitutionality.  After that hearing, a primary drafter of the 
NRW law told us he expected the Constitutional Court to overturn 
it (reftel). 
 
--------------------------------------------- ---------- 
Court defines "new basic right" and sees NRW regulation as 
violating it 
--------------------------------------------- ---------- 
 
¶3.  (U) In presenting the key elements of the 106-page court 
decision, Chief Justice Hans-Juergen Papier stressed that the 
court had broken new ground by defining "for the first time a 
basic right guaranteeing the privacy and integrity of IT 
systems."  This new basic right derived from Article 2, para. 1 
of the Basic Law (personal freedoms) in connection with its 
Article 1, para.1 (human dignity) and may only be restricted or 
interfered with under very stringent conditions (see below). 
The court ruled that the relevant NRW regulation violated this 
basic right and was therefore null and void.  In particular, the 
clause authorizing the OPC to conduct online searches was too 
general and not clearly enough defined; did not fulfill the 
requirements of reasonableness; and did not contain sufficient 
provisions for protecting the core area of (a person's) privacy, 
the court found. 
 
-------------------------------- 
High hurdles for online searches 
-------------------------------- 
 
¶4.  (U) According to the court, online searches are only 
admissible if: 
-- there are actual indications of a concrete threat to an 
overridingly important object of legal protection, such as life, 
freedom or the existence of the state; 
-- there is prior approval of the measure by a judge; and 
-- the legislation authorizing online searches contains 
provisions protecting the core area of (a person's) privacy. 
 
---------------- 
Reactions in NRW 
---------------- 
 
¶5.  (SBU) NRW Interior Minister Ingo Wolf (FDP), who pushed the 
forward looking OPC law, called the February 27 court ruling "a 
trailblazing" decision and gave assurances that the NRW law 
would be redrafted.  The opposition called the ruling a "slap in 
the face" for Wolf, with the Greens going so far as to call for 
his resignation.  The leading and most prominent complainant, 
Gerhart Baum, the former Federal Interior Minister under 
Chancellor Helmut Schmidt, expressed great satisfaction at the 
outcome, terming the decision "historic" and a "milestone" in 
the development of the protection of basic rights in the 
 
DUSSELDORF 00000011  002.2 OF 002 
 
 
information age.  In a February 28 conversation with CG, FDP 
Bundestag Internal Affairs Spokesperson Gisela Piltz called the 
ruling a "victory," but added that it still allows law 
enforcement authorities access to some personal space that she 
would have preferred not to see. 
 
------- 
Comment 
------- 
 
¶6.  (SBU) The Constitutional Court's decision has implications 
that go far beyond the NRW regulation of online searches, 
providing a far-reaching concept for a new basic right 
guaranteeing the privacy and integrity of IT systems, and 
clearing the way for federal legislation on online searches. 
NRW authorities, who had taken the first stab in Germany at 
creating a legal basis for this new area, must now draft new 
legislation, and other states can be expected to follow.  It is 
too early to assess the impact of the ruling for the work and 
effectiveness of intelligence and law enforcement agencies in 
their struggle against the terrorist threat.  One senior 
Duesseldorf police officer welcomed it "for finally providing 
legal clarity," while another predicted that it would erode law 
enforcement agencies' ability to combat extremist targets on 
equal terms.  The ruling's language referring to the "existence 
of a concrete danger" as a prerequisite for searches suggests 
that it may be easier for law enforcement agencies than 
intelligence services to use online searches as a tool.  Perhaps 
for this reason, it is interesting to note that Federal Interior 
Minister Wolfgang Schaeuble has thus far talked primarily about 
amending the BKA (Federal Office of Criminal Investigation) law, 
which concerns law enforcement agencies, and not the federal OPC 
law.  End Comment. 
 
¶7.  (U) This message was coordinated with Embassy Berlin. 
BOYSE