The Federal Constitutional Court has decided that several data collection and transmission powers of the State Office for the Protection of the Constitution, regulated in the Hessian Constitutional Protection Act (HvSG), are incompatible with the Basic Law. According to the July 17 ruling published on Tuesday, the agents’ ability to trace mobile devices is, among other things, unconstitutional because it “allows close, long-term monitoring of activities in the room.” The Karlsruhe judges complain that the relevant standard enables “intense interference with fundamental rights”. These are not justified. The legislature has not provided sufficient limits for this.
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According to the Constitutional Protection Act, which the then black-green coalition revised in 2023 after the far-reaching decision of the Federal Constitutional Court on the Bavarian Constitutional Protection Act, state guardians can in individual cases use technical means such as IMSI catchers to determine the location of actively switched on cell phones, provided that this is necessary to fulfill their obligations. The First Senate thinks so In its decision (ref: 1 BvR 2133/22) is very broad, as the domestic secret service could use it to spatially track mobile phone users over a long period of time and thus create movement profiles. According to the ruling, the regulation could theoretically come into force by the end of 2025. However, the restriction then applies that the movements of a watched person’s cell phone are “only tracked selectively and not for long periods of time.”
According to the judgment, the transfer of data from the Office for the Protection of the Constitution, which it has collected using intelligence means, to law enforcement authorities is also inconsistent with the Basic Law unless they are linked to particularly serious crimes. Such a broad right can only be considered to protect the outstanding public interest and therefore only to prosecute particularly serious crimes. In addition, there must be “concrete and somewhat compelling circumstances as a factual basis for suspicion”. The Court declared this section completely void.
All travel activities can be inquired about
The judges also classified the information transfer to other domestic public bodies as unconstitutional, because the relevant standard also allows transfer to domestic public bodies with operational affiliation powers and does not provide a sufficient transfer threshold for this. They declared the requirement for requests for information about transport companies and flights to be incompatible with the Basic Law, because it allows “interference with increased weight” in the right to informational self-determination and does not provide a sufficient threshold for “interference”. In this way, all travel movements still saved at the time of the order as well as all future travel movements within the potential order period or even just booked can be queried. The court also declared the paragraph on the use of secret employees to be unconstitutional.
Constitutional complaint Society for Civil Rights formed (GFF) together with the Humanist Union (HU), the data protection officer Rhine Main and the Forum of Computer Scientists for Peace and Social Responsibility (FIFF). The complainants included HU regional president Franz Josef Hanke, lawyer Seda Basay-Yildiz, who was repeatedly threatened by agitators, and Sylvia Gingold, who has been under surveillance of the Office for the Protection of the Constitution since her youth for her anti-fascist commitment. “The Hessian state government must be detained because it has treated elementary civil rights negligently,” Hanke explained after the verdict was announced. This is not the first time. The new black-red coalition actually plans to expand surveillance. The Pirate Party failed in 2022 with a complaint against Hesentrogen.
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