Police smartphone confiscation: Digital “house” search without legal basis

In early September 2023, young journalist Hendrik Torner accompanied a demonstration by the "Last Generation" in Bamberg with the intention of subsequently writing an article about it in a trade union newspaper. Torner regularly follows civil society demonstrations from a journalistic perspective and is politically active. After the demonstration ended, he witnessed police action against three participants. He documented the police officers' public statements with a voice memo and sent it to himself via Signal chat.

The officers subsequently accused Torner of a criminal offense for violating the confidentiality of spoken words under Section 201 of the Criminal Code. They confiscated his cell phone and had the highly sensitive data – including private photos and chat messages – accessed and analyzed using software from Cellebrite. The police subsequently compiled a comprehensive report on the plaintiff's political activities and his affiliation with various left-wing political groups. There was no discernible connection to the specific criminal charge. The analysis was therefore clearly no longer relevant to the investigation.

In April 2025, Torner filed an appeal with the Bamberg Regional Court against the Bamberg District Court's judicial confirmation of the confiscation. The GFF, along with attorney Pinar, submitted the grounds for the appeal in June 2025.

ENORMOUS POTENTIAL FOR ABUSE FOR INDIVIDUALS AND SOCIETY

Mobile phones are confiscated and analyzed every day for the purpose of law enforcement. This is possible for every conceivable crime; simple initial suspicion is sufficient. While confiscation must generally be ordered by a court, the police themselves usually decide which data is subsequently accessed and analyzed. Once a cell phone is unlocked, all data stored on it is generally accessible to the authorities, especially highly personal and confidential information.

Access to the entire data set of confiscated mobile phones carries a high potential for abuse. There is a risk that the police will gain deep insights into the personality and core aspects of the private lives of those affected, without reference to the actual reason for the seizure, and will use this information for other purposes. Fundamental trust in the protection of digital communications is undermined – whether in private, professional, or legally protected settings. This constitutes a serious infringement of the so-called fundamental IT right, which protects the confidentiality and integrity of information technology systems.

Moreover, extensive government access to sensitive data can deter people from civic and political engagement, as well as from journalistic research. If, for example, journalists fear that government security agencies can intercept all confidential communications based on even the slightest initial suspicion, journalistic work becomes significantly more difficult – especially when it comes to critical research into the exercise of government power. This endangers press freedom – a cornerstone of democracy.

GOVERNMENT SMARTPHONE ANALYSIS REQUIRES STRICT LEGAL LIMITS

In a society based on the rule of law, the admissibility and scope of such a serious infringement of fundamental rights must be determined by the democratically legitimized legislature itself and limited to appropriate cases. Furthermore, legal safeguards are needed to prevent the collection or analysis of information from the inviolable core area of ​​private life.

However, there is currently no specific legal basis that meets these constitutional requirements. Moreover, there is a lack of prior judicial review that specifies the type, scope, and limits of data analysis in individual cases. Leaving the decision on the admissibility and extent of data analysis solely to the police and public prosecutor's office is incompatible with the rule of law and democratic principles.

WE WANT A LANDMARK JUDGMENT AGAINST UNRESTRICTED DATA ANALYSIS

With the complaint filed jointly with claimant Hendrik Torner, his attorney Gül Pinar (TWP Criminal Law Firm), and Reporters Without Borders, we seek to establish that the measure against Torner was disproportionate in this specific case. Beyond the specific allegations, a comprehensive political profile of the person affected was created, and a large amount of sensitive and personal data was analyzed and stored.

Moreover, we want the Bamberg Regional Court to confirm our legal standpoint: There is currently no legal basis for the analysis of confiscated smartphones that complies with constitutional and European law. The data analysis is currently based on the seizure provisions of Sections 94 et seq. of the Code of Criminal Procedure (StPO), although these do not explicitly regulate the admissibility, scope, or limits of the analysis. Hence, there is no legal basis that defines the framework for the data analysis. The court order for the confiscation is also insufficient, as it usually does not contain any statement on the subsequent data analysis.

DATA PROTECTION IS PROTECTION OF FUNDAMENTAL RIGHTS

We are also challenging the government's disproportionate analysis of private smartphones with two other cases. In February 2023, following our lawsuit, the Federal Administrative Court declared the practice of analyzing cell phone data by the Federal Office for Migration and Refugees unlawful. We are also challenging the legal basis and official practice of accessing and analyzing cell phones and thus highly personal data of asylum seekers – based on an unconstitutional provision in the Residence Act.

Intimate personal information on cell phones must be confidential – for everyone. The government may only access this data in exceptional cases and under strict rules – whether this concerns people with a refugee background, politically active individuals, or journalists.