Hessen is watching you
Permanent tracking of mobile devices? Use of undercover investigators? Despite the amendment of 2023, the Hessian Constitution Protection Act hardly provides any hurdles for such measures that are very intensive in terms of fundamental rights. This is unconstitutional. We had already submitted a constitutional complaint against the Hessian Constitution Protection Act in 2019. We maintained our complaint even after the law was amended and achieved another success for fundamental rights with the decision by the judges in Karlsruhe in September 2024.
REQUIREMENTS FOR SURVEILLANCE POWERS TOO LOW
The Hessian state government had taken note of the requirements of the Federal Constitutional Court from the ruling on the Bavarian Constitution Protection Act (BayVSG), but did not fully implement them with the HVSG amendment of 2023.
According to the HVSG, particularly intrusive measures such as the prolonged tracking of mobile devices or the deployment of undercover investigators over a longer period of time were permitted in the case of “significant efforts requiring observation”. Minor offenses such as damage to property were sufficient to fall under these “intentions”.
Even less was required for other measures. Here, it was sufficient if there was a “threat requiring observation”. For example, the Office for the Protection of the Constitution could deploy undercover investigators for up to six months and obtain information from transport companies. As transport companies (public transport, car and bike sharing, cab apps, etc.) now store a lot of information digitally, the information makes it possible to create movement profiles. There did not have to be an increased need for observation for this, although there is a massive encroachment on the fundamental rights of the citizens concerned. In the decision announced in September 2024, the Federal Constitutional Court agreed with our view and declared the thresholds for interference to be too low. The Hessian legislator must make adjustments until the end of 2025.
EXCESSIVE TRANSMISSION OF COLLECTED DATA BY THE INTELLIGENCE SERVICE
In the BayVSG ruling, the Federal Constitutional Court strengthens the principle of separation between the Federal Office for the Protection of the Constitution and the police. The court sets clear limits on the exchange of information from data collected by intelligence services. As far as the transfer of data to the police is concerned, the HVSG meets the decision-making standards following the 2023 amendment. However, data may still be transferred to other authorities under very lax conditions. Authorities acting on this basis can also massively encroach on people's fundamental rights. For example, data from the domestic intelligence service can be transferred to the immigration authorities. The authority then receives information that it can use to deport the person concerned. Following our successful constitutional complaint, the Federal Constitutional Court tightened the standards from the BayVSG ruling and declared the lax requirements for data transfer in the HVSG amendment to be unconstitutional.
