2.4.2 Particular Rules
Preservation and Access to Computer Data Hosted on a Computer System
The preservation and access to computer data hosted on a computer system is limited
by the fundamental right to the guarantee of the confidentiality and integrity of
information technology systems. It is a special expression of the general right to
privacy, Art. 2 para. 1, Art. 1 para. 1 GG. It was derived from that fundamental right
by the BVerfG in 2008.
72 It is subsidiary to the right to privacy of telecommunications, Art. 10 GG, the right to informational self-determination, Art. 2 para. 1, Art.
1 para. 1 GG, and the inviolability of the home, Art. 13 GG.
The preservation, handling and/or access to computer data hosted on a computer
system for the purpose of the investigation and detection of crimes is issued by Art.
34d PAG for Bavaria and by similar provisions in police Acts of the other federal
states.
The preservation, handling and/or access to computer data hosted on a computer
system for prosecution purposes are not specifically addressed in the StPO. They fall
within the scope of the general rules of seizure, sec. 94 StPO. In this case, the
computer is the subject of seizure.
73
The BVerfG determines the requirements of encroachments on the fundamental
right to the guarantee of the confidentiality and integrity of information technology
systems. Encroachments, especially online searches of computers, are constitutionally permitted if factual indications exist of a concrete danger to a predominantly
important legal interest. Such predominantly important legal interests are the body,
life and freedom of a person or the safety of the Federal Republic of Germany.
Measures infringing that right must in principle be issued by a judge, except in cases
of urgency.
Interception of Communication Data
The interception of communication data infringes the fundamental right to confidentiality of communications, Art. 10 GG. It needs to be legitimized by Act of
Parliament. The interception of communication data for investigation purposes is
issued in Art. 34a PAG (Bavaria); for prosecution purposes in sec. 100a et seq. StPO.
Under the relevant conditions inventory data, traffic data, as well as content data may
be intercepted.
The requirements for the disclosure of communication data correspond to the
severance of the encroachment of the fundamental right to confidentiality of communications. Accordingly, the requirements concerning the disclosure of inventory
data are less strict then the ones concerning the disclosure of traffic data while the
72 BVerfG, judgment of 27 February2008, 1 BvR 370/07, 1 BvR 595/07 ¼ NJW 2008, 822.
73 Baer in Wabnitz and Janovsky (2014), chapter 27, B. para. 48.
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Preservation and Access to Computer Data Hosted on a Computer System
The preservation and access to computer data hosted on a computer system is limited
by the fundamental right to the guarantee of the confidentiality and integrity of
information technology systems. It is a special expression of the general right to
privacy, Art. 2 para. 1, Art. 1 para. 1 GG. It was derived from that fundamental right
by the BVerfG in 2008.
72 It is subsidiary to the right to privacy of telecommunications, Art. 10 GG, the right to informational self-determination, Art. 2 para. 1, Art.
1 para. 1 GG, and the inviolability of the home, Art. 13 GG.
The preservation, handling and/or access to computer data hosted on a computer
system for the purpose of the investigation and detection of crimes is issued by Art.
34d PAG for Bavaria and by similar provisions in police Acts of the other federal
states.
The preservation, handling and/or access to computer data hosted on a computer
system for prosecution purposes are not specifically addressed in the StPO. They fall
within the scope of the general rules of seizure, sec. 94 StPO. In this case, the
computer is the subject of seizure.
73
The BVerfG determines the requirements of encroachments on the fundamental
right to the guarantee of the confidentiality and integrity of information technology
systems. Encroachments, especially online searches of computers, are constitutionally permitted if factual indications exist of a concrete danger to a predominantly
important legal interest. Such predominantly important legal interests are the body,
life and freedom of a person or the safety of the Federal Republic of Germany.
Measures infringing that right must in principle be issued by a judge, except in cases
of urgency.
Interception of Communication Data
The interception of communication data infringes the fundamental right to confidentiality of communications, Art. 10 GG. It needs to be legitimized by Act of
Parliament. The interception of communication data for investigation purposes is
issued in Art. 34a PAG (Bavaria); for prosecution purposes in sec. 100a et seq. StPO.
Under the relevant conditions inventory data, traffic data, as well as content data may
be intercepted.
The requirements for the disclosure of communication data correspond to the
severance of the encroachment of the fundamental right to confidentiality of communications. Accordingly, the requirements concerning the disclosure of inventory
data are less strict then the ones concerning the disclosure of traffic data while the
72 BVerfG, judgment of 27 February2008, 1 BvR 370/07, 1 BvR 595/07 ¼ NJW 2008, 822.
73 Baer in Wabnitz and Janovsky (2014), chapter 27, B. para. 48.
200
C. Breunig and M. Schmidt-Kessel