Uninvolved persons continue to be targeted by the police

Despite the clear guidelines from Karlsruhe, the Hessian Police Act - Hessian Law on Public Safety and Order (HSOG) - continues to allow the data of completely uninvolved people to be fed into the Hessendata analysis software. This can lead to false suspicions. The data from radio cell searches in particular can be included to a large extent. Hessendata still collects huge amounts of incident data. Incident data systems are not designed to differentiate between people who give rise to police surveillance measures and those who do not. They must therefore be excluded from the overall analysis. The new regulation explicitly includes data from evidence. This may include laptops or smartphones, for example, which may contain the data of uninvolved people.

This means that even a simple enquiry to the police as to which personal data is stored can become part of the analysis at a later date. At the touch of a button, the police use the software to interfere with the right of those affected to determine their own data. Just a few matches are enough to allow further secret surveillance measures such as surveillance and telecommunications monitoring to follow. Meanwhile, those affected have no opportunity to defend themselves against the massive encroachments on fundamental rights, as they are unaware of them. Often, discriminated groups that are overrepresented in police databases are affected.

Excessive data analyses completely in the hands of police investigators

Hessendata is used well in advance of a threat. While the absurd discussion about climate activist constituting a criminal organisation is still being held, a sticker purchased in a hardware store could already give rise to a police analysis. Shifting the use of software far into the run-up to an offence, i.e. before there is a real threat of a violation of legal interests, is clearly unconstitutional.

Instead of making effective improvements, the Hessian legislator is shifting its regulatory duty to the police. The departments should mainly regulate the use of software themselves through administrative regulations. This means that changes can be made quickly and silently without public parliamentary debate. In view of the possibilities for encroaching on fundamental rights, the Hessian legislator must not hand over the task to the officers. This shift in responsibility violates the constitutional principle of materiality. The elected members of parliament must themselves ensure that the police may only interfere with fundamental rights through such analyses under strict conditions. They must fulfil their duty to issue clear regulations.

Given the massive encroachments on fundamental rights and the lack of opportunity for those affected to defend themselves during secret surveillance measures, effective data protection control is urgently required. This is also what the Federal Constitutional Court envisaged in its landmark judgement on data mining. The Hessian legislator is not complying with it. Furthermore, there is no obligation for at least one data protection officer in the state to regularly monitor the analyses. The lack of a monitoring obligation opens the door to massive encroachments on fundamental rights.

Looking into the crystal ball: predictive policing

The Hessendata analysis software is based on the Gotham software from the US company Palantir. The company advertises its software with a view into the future, paving the way to derive predictions from existing police data (predictive policing). The first signs of this can already be seen in the provisions of the Hessian Police Act, such as data analysis that is carried out well in advance of a criminal offence. Although the Hessian legislator denies that Hessendata is to be used to look into the crystal ball, it has already set a clear course in this direction. This makes it all the more important to bring Hessendata back down to earth once and for all.

Activists, journalists and lawyers take legal action

The six complainants, consisting of activists, journalists and lawyers, include the regional chairman of the Humanist Union Franz Josef Hanke and the lawyer Seda Başay-Yıldız. Together with the GFF, both have already successfully filed a constitutional complaint against Hessendata in 2019. The complaint was written by Prof Dr Tobias Singelnstein.

Strategic litigation against excessive surveillance measures

The constitutional complaint against the amended Hessian Police Act is part of the GFF's strategic litigation against excessive surveillance measures based on huge amounts of data. Another constitutional complaint by the GFF is pending against the legal basis for the use of Gotham in North Rhine-Westphalia. The GFF expects a decision on the constitutional complaint against the BKA law, which authorises even more data for police work, before the end of this year.