To solve serious crimes, investigators in Germany are allowed to use data from crypto cell phones from the provider “Anom”, which the FBI sold specifically to criminals. US police departments had codes to read encrypted chat messages. Supreme Court The Federal Court of Justice (BGH) in Karlsruhe has now clarified this on the basis of a case from TübingenIf the data transmitted by the United States helps solve serious crimes, it could be used as evidence. This was unclear for a long time.
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The most serious crime in the field of organized crime
The Federal Criminal Police Office (BKA) began an investigation in this context in March 2021 on behalf of the Frankfurt am Main Public Prosecutor’s Office – Central Office for Combating Internet Crime. According to previous information, it includes data on about 2,700 users with ties to Germany and the most serious crimes in the field of organized crime.
By the end of September 2024, the BKA had identified more than 1,400 users and launched approximately 830 investigations. 378 arrest warrants have been executed and 279 verdicts have been handed down. The results of several searches resulted in the seizure of several thousand kilograms of cannabis and synthetic drugs as well as 96 firearms and approximately 4,000 rounds of ammunition.
The state wants to remain secret
Until now, due to the lack of Supreme Court case law, it has been controversial whether “anonymous” data can be used as evidence, as is the case An article in Criminal Policy magazine stated“AnomChat” is not comparable to so-called “EncroChat” cases. Due to the many legal questions and circumstances of data collection, the latter case law has tended to adopt so-called restrictions on the use of evidence.
The background to this, among other things, is that a server to which a copy was sent when a chat message was sent was located in an EU member state since the summer of 2019, the identity of which was not revealed by the FBI. Request it. According to the BGH, it is also unknown why the state asked for secrecy. As per the court order, the export and forwarding of data was limited till June 7, 2021.
The BKA gained access to decrypted data related to Germany through an Internet-based assessment platform. The US Department of Justice agreed to use the data in response to a request for legal assistance from the Frankfurt Attorney General’s Office.
“Designed by criminals for criminals”
In the opinion of the First Criminal Senate at the BGH in Karlsruhe, it is not so important on balance that some information is secret and that even the German judiciary only knows some things by hearsay. (Af: 1 STR 54/24)
Whether there are restrictions on the use of evidence must be answered exclusively in accordance with German law. There is no need to review foreign screening measures under local law. “It is also immaterial whether the German investigating authorities should have acted in a similar manner.”
According to the statement, the Federal Court found that the interference with telecommunications privacy was limited: “The measures were specifically targeted at those for whom there was genuine evidence of involvement in organized crime, particularly in the field of narcotics and arms trafficking.”
The distribution channel was already limited to criminal circles. The BGH quotes the slogan “Designed by criminals for criminals” (in German: Developed by criminals for criminals). This and the high cost suggest that the user was using the device to plan and execute serious crimes in the field of organized crime.
hidden in calculator function
In this specific case, the Tübingen Regional Court will have to hear it again. But this is not about the question of data usage. The background to this, among other things, is that the Cannabis Act has now come into force. In October 2023, the regional court sentenced the defendant to a total of seven and a half years in prison for 35 offenses of drug trafficking in large quantities and ordered that more than half a million euros of crime proceeds be confiscated. The “Anom” app was hidden in the calculator function of his cell phone.
(mho)
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